Senate page     Sep. 07


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New polls:  
Dem pickups: FL NC PA WI
GOP pickups: GA

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There is much more to this site than the front page. There is a lot of information that we hope you might like on other pages. These are listed on the menu to the left of the map. Take a look! One especially important page is the Tipping-point state page, which is updated automatically daily from our database. It lists all 35 Senate races and is sorted on the "Lead," with blue meaning the Democrat is ahead and red meaning the Republican is ahead. The little hand symbols indicate what each party needs to do to get 51 seats. For the Democrats, read from top to bottom. To get 51 (today), they need to win all the races from Hawaii down to Florida. North Carolina and New Hampshire are also currently blue but they are just gravy. If you are concerned about the Democrats getting 53 seats instead of 51, just read the "Dem seats" column down to 53 (today, that's New Hampshire).

For the Republicans, read from the bottom up. To get to 51, the easiest path is to win the states from North Dakota up to and including Nevada. Currently four of those states (New Hampshire, North Carolina, Florida, and Nevada) are trending blue, so to get to 51, the best way for the GOP is to flip those races. Of course, Blake Masters could beat Sen. Mark Kelly (D-AZ), but he is 7 points down, whereas Rep. Ted Budd (R-NC) is only one point down, so North Carolina is an easier win than Arizona.

Either way you read it, the chart shows the easiest way to get to 51 (or 53). Another use of this chart is to determine where to donate money. The races with a small number in the "Lead" column are the most competitive, and a dollar there will matter more than a dollar in, say, Hawaii or North Dakota, even if you really like the candidates there.

All The Way With a Governor Who's Gay

Massachusites went to the polls yesterday, and largely voted as expected. Here are the results:

• Governor: On the Democratic side of the contest, Maura Healy trounced Sonia Chang-Diaz, 85.5% to 14.5%. Makes sense, since Chang-Diaz was no longer actively campaigning. The Republicans gave their nomination to the more Trumpy candidate, Geoff Diehl, who had the former president's endorsement, and took 55.5% of vote as compared to 44.5% for Chris Doughty. While a moderate Republican (known to some as a "RINO") can win in Massachusetts, there's absolutely no reason to think a Trumper can. So, as we've already written several times, you can pencil in Healy as the Bay State's next governor. If and when she is elected, she will become the first openly lesbian governor in U.S. history (though Tina Kotek in Oregon might tie her for that honor). We have, of course, already had a gay man (Jared Polis, D-CO) and a bisexual woman (Kate Brown, D-OR), which means that soon the last remaining gubernatorial glass ceiling will be the T in LGBT.
  
  
• Lieutenant Governor: Democrats had three options here; they could have chosen the very moderate state Sen. Eric Lesser, or the very progressive state Rep. Tami Gouveia, but they split it down the middle and went with Mayor Kim Driscoll (D-Salem), who took 47% of the vote. She will most likely face off against Leah Cole Allen, whose campaign website policy page has almost no actual policies ("I've always been committed to freedom," for example, is not a policy). This is what it looks like when a candidate is trying to avoid alienating any voters. Allen will surely go down to defeat in November. Note, incidentally, that about 600,000 Democrats voted yesterday, as compared to 200,000 Republicans.
  
  
• Attorney General: Here again, Democratic voters did not go with the most moderate or the most liberal candidate, but instead the tweener, in Andrea Campbell. She took 50.7% of the vote, and her victim will be James McMahon, who was running unchallenged.
  
  
• Secretary of State: There was a chance that the Democrats would have an all-female sweep of the nominations for statewide office. However, William Galvin harnessed the power of incumbency, and made certain there would be at least one Y chromosome on the Democratic ticket. He crushed the more progressive Tanisha Sullivan 69.6% to 30.4%. Galvin, who is gunning for his eighth term, has held that office since 1995. Rayla Campbell (R), who also ran unchallenged, will join his other seven opponents on the scrap heap.
  
  
• Suffolk DA: It would appear that "hard on crime, soft on police" is a better profile than "accused sexual assaulter," because in the rather nasty Democratic primary for Suffolk County (Boston) DA, current (appointed) DA Kevin Hayden defeated city councilman Ricardo Arroyo, 53.6% to 46.4%. Given that he's got some baggage, Hayden might plausibly be vulnerable to the right Republican. However, he does not have to worry, as no Republican filed for the race. So, he will win a term in his own right in November.
  
  
• Congress: There is no U.S. Senate race in Massachusetts this year. On the House side, the entire nine-person delegation is Democratic, all nine are running for reelection, and all nine won their primaries yesterday, which was easy to do because all nine of them were uncontested. There's no real need for gerrymandering in Massachusetts, since you end up with nine solidly Democratic districts no matter how you slice it.
  
  The Republicans didn't even bother to put up a candidate in MA-04 (represented by Jake Auchincloss), and they only had actual races in two of the nine districts. In MA-08, Robert Burke won the Republican nomination easily; we'd try to give you a sense of where he is on the political spectrum, but we don't know because his campaign website says it's "Coming Soon." He's going to be wrecked by Rep. Stephen Lynch (D). In MA-09, it looks like the Republican will be Jesse Brown. He at least has a website although, like Leah Cole Allen, his policy page has few actual policy positions. Assuming he advances, he'll be losing to Rep. Bill Keating (D) in November.

There you have it. Next week, Delaware, New Hampshire and Rhode Island will bring up the rear, and all the races will be set. Well, not including Louisiana, whose "jungle" primary takes place on Election Day. (Z)

Lawyers Unimpressed with Special Master Ruling

Yesterday, we wrote about Judge Aileen Cannon's decision that Donald Trump would be allowed a special master to review all the documents that were taken from Mar-a-Lago. Knowing that this is a legal Hail Mary, we tried to keep an open mind, and took the position that it's better to dot all the i's and cross all the t's when it comes to observing the former president's legal rights, so as to (hopefully) forestall problems down the road.

Perhaps we were a wee bit too charitable. Another day has passed, which means that the various lawyer-commentators (attorneytators? lawyerscenti? advocate-dits?) have had time to read the decision, digest it, and write op-eds/sit for interviews. And, boy howdy, they are not impressed. Here's a rundown of just some of the scathing reviews:

• Jennifer Rodgers, Columbia Law School: "To issue an injunction against the Justice Department, Cannon also had to find that Trump had carried his burden of proof by showing he had a likelihood of success on the merits of each of his claims, including executive privilege, for which she ordered a special master review. The judge provided no support at all that Trump will ultimately succeed in this legal argument. Indeed, there are multiple legal reasons that Trump's executive privilege argument is almost certain to fail."
  
  
• Laurence Tribe, Harvard Law School: "Her decision was utterly lawless. She has disgraced her position as an Article III judge."
  
  
• Paul Rosenzweig, Bush White House official and Bill Clinton impeachment prosecutor: "This would seem to me to be a genuinely unprecedented decision by a judge. Enjoining the ongoing criminal investigation is simply untenable."
  
  
• Peter M. Shane, NYU Law School: "The opinion seems oblivious to the nature of executive privilege."
  
  
• Samuel Buell, Duke Law School: "To any lawyer with serious federal criminal court experience who is being honest, this ruling is laughably bad, and the written justification is even flimsier. Donald Trump is getting something no one else ever gets in federal court, he's getting it for no good reason, and it will not in the slightest reduce the ongoing howls that he is being persecuted, when he is being privileged."
  
  
• Bill Barr, Trump-era attorney general: "The opinion, I think, was wrong, and I think the government should appeal it. It's deeply flawed in a number of ways."
  
  
• Jessica Levinson, Loyola Law School: "Cannon's ruling will not just slow down the DOJ's investigation for no valid reason, it is also so thin on analysis it threatens to set dangerous legal precedent. It reads more like a political conclusion in search of a legal rationale than a judicial order. The DOJ should appeal, at least the part of Cannon's ruling that prevents it from continuing its criminal investigation, or file a motion for reconsideration."
  
  
• Andrew Weissmann, former assistant counsel to Robert Mueller: "Cannon's opinion... is so deeply flawed that it's hard to know where to begin a critique. Let's start with the unequal application of the law. Although Trump wallows in feigned claims of persecution, in fact he has been privileged by the Justice Department, and now Cannon, in a manner unheard of for any other defendant. Every defendant would relish the opportunity to delay a criminal investigation by having a court enjoin the government from investigation, but that never happens. The time-honored recourse for someone aggrieved by a search is not to have an unelected judge unilaterally decide to enjoin the constitutionally delegated power of the executive branch to investigate and prosecute. The defense remedy is in a post-indictment motion to suppress evidence from a search."
  
  
• Elie Mystal, attorney and lead legal analyst for The Nation: "How on Earth could a judge who made it through law school think that Donald Trump can take the property of the government, the federal government, take it home and then have to have a special master decide whether they can investigate him?"

We gave you a fair number of quotes here but, we assure you, we could have easily tripled this without breaking a sweat. Legal opinion, across the political spectrum, is running something like 98% against Cannon's ruling. And it's not just "kinda opposed," it's mostly people getting out their poison pens and absolutely flaying the decision. The only entirely supportive piece we could find is this one from National Review's Andrew C. McCarthy, a former Assistant U.S. Attorney who is known for his (now-decade-old) book arguing that Barack Obama's main goal in becoming president was to impose sharia law on the United States. So, we might not be dealing with the most fair and impartial legal mind here. In addition, Slate's Norman L. Eisen and Fred Wertheimer offer up the same basic argument that we tried to make yesterday, that some aspects of Cannon's ruling were justifiable, if you squint just right.

Bad decision or no, the fact remains that the ball is now in the Department of Justice's court. AG Merrick Garland can either ask Cannon for reconsideration, or appeal the ruling, or grit his teeth and get through the special master process as rapidly as is possible. The attorneytators are considerably less consistent on this point. A majority seems to advocate for an appeal, but there's a sizable minority that believes that would just be playing the game according to Donald Trump's rules, since the former president might be able to drag out every single part of the process.

We'll add one more thing before wrapping this up. Cannon sure seems to have bent over backwards here for Trump. Even if you assume she's being governed by political considerations rather than legal ones, however, she may only be willing to carry so much water for him. Further, her rulings get appealed to the Eleventh Circuit. Trump seated six of the judges on that circuit who are currently active, more than any other president. However, there are five active non-Trump appointees, soon to be joined by a sixth courtesy of Joe Biden. There are also nine judges who have assumed senior status, and none of them are Trump appointees. More often than not, the former president has gotten adverse rulings when he was in front of a judge that he appointed. That fact, plus the composition of the court, mean that he's not likely to draw two in-the-bag Trump appointees for a three-person appeal panel. So, even if you believe justice will not be done in Cannon's court, there's still an excellent chance that justice will be done. Oh, and there's always Georgia and New York, of course. (Z)

The Plot Thickens Just a Bit More in Georgia

And speaking of Georgia, there's been some new information on that front. CNN has acquired a surveillance video taken on January 7, 2021. In the video, Cathy Latham—a former GOP chairwoman of Coffee County, and current subject of a criminal investigation due to being one of the fake Donald Trump electors—is seen ushering two Trump campaign operatives, Scott Hall and Paul Maggio, into Coffee County's elections office. The voting machines there are among those known to have been breached by Republicans, and Hall and Maggio have already copped to doing so in that office, on that day. So, we now appear to have video of the early steps in that process.

The main takeaway here is that it looks more and more like there was a very broad conspiracy to subvert the election results. Team Trump didn't just try to twist arms to secure those all-important 12,000 or so votes in Georgia, they also took steps to secure the votes themselves. It all adds up to more people being charged with crimes, more crimes being charged, and convictions being easier to secure. Indeed, we are squarely in "prisoner's dilemma" territory at this point; the people who are legally exposed (including Latham) have to be thinking long and hard about singing like canaries, so as to save their own skins. There's little leverage in being the 18th person to turn state's evidence.

Meanwhile, no wonder Fulton County DA Fani Willis' investigation is taking so long. The shenanigans in Georgia appear to have been more complicated, and to have involved more people, than the Manhattan Project. And note that she still hasn't even gotten to the point of trying to compel testimony from Trump. (Z)

One Insurrection and You're Out

You may get three strikes, but you only get one attempt to overthrow the government before you're out. At least, if you are Couy Griffin. He is the over-the-top Trumper who first earned headlines earlier this year when, in his capacity as one of three commissioners in Otero County, NM, he refused to certify the primary election results. That's not going to be a problem again, because not only was he ejected from his post by Judge Francis Mathew, he was barred from holding elective office, state or federal, in the future.

This decision does not automatically translate to other states or tribunals, as Mathew is a state, and not federal, judge. On the other hand, Griffin was not expelled under the terms of a state law (like, say, the one that exists in North Carolina). He was expelled under the terms of the Fourteenth Amendment. This is also the first time a judge has described the events of 1/6 as an "insurrection" in a formal ruling. In short, when it comes to the various cases that have been filed against insurrectionist-politicians in 2022, and that will be filed in 2024 (and 2026, and 2028...), there's now an actual, bona fide, legal foothold.

It's unclear whether Griffin will attempt to appeal the ruling. On one hand, he seems like the type to do so. On the other hand, if we may say so, he also seems like the type to lack the funds for endless appeals. We'll see. Meanwhile, it occurs to us that other insurrectionist-politicians are never going to be able to rest easy. The Fourteenth Amendment doesn't prohibit the election of insurrectionists to office, it prohibits insurrectionists from holding office. So, a person like Pennsylvania gubernatorial candidate Doug Mastriano could be targeted for a suit at any time. Oh, and since they are not being charged with a crime, per se, double jeopardy likely doesn't apply. So, it could be a lawsuit every month, or maybe every week, for these folks. (Z)

Palin's "Strategy" Isn't Going to Work Out

Sarah Palin is not known for her voracious consumption of news media. After all, she couldn't name a single publication she reads (or, apparently, has heard of) when asked during her disastrous vice-presidential campaign in 2008. However, she has somehow become aware that she lost the special election for Alaska's at-large seat in the House despite the fact that Republican candidates combined for more votes in the first round of ranked choice voting than the Democratic candidate.

The former governor and mayor of Wasilla thinks that this is a gross injustice, that a Republican should be headed to Washington right now, and that the Republican should be Sarah Palin. And she's come up with a strategy for avoiding a repeat in the general election: The other Republican in the race, Nick Begich, should drop out. Actually, her exact proposal was a wee bit less artful. She decreed: "Only a Democrat sympathizer would selfishly stay in this race, after getting licked three times in a row by his GOP opponent, only to enable a Democrat to hold the Alaskan people's seat in the U.S. House of Representatives."

In any case, artful or not, problem solved, right? Well, except for the fact that nobody consulted Nick Begich. This would be the same Nick Begich who is most certainly a viable candidate and who, in our view, is actually more likely to win than Palin is. When told of Palin's plan, Begich said: "I will continue traveling the state, making the case that this election is about a choice between Mary Peltola and Nick Begich."

Forgive us for saying so, but it sure seems like Republicans want to decide elections by just about every set of rules possible, except for the ones that are actually in effect. Maybe this is a crazy idea, but what about winning on your merits, as opposed to trying to do end runs around the system with voter ID laws, lawsuits, and demands that your opponents drop out and immediately prostrate themselves as they participate in your coronation? Guess we are just old fashioned.

In any case, it seems clear that, rather than accept the reality of ranked choice voting, Palin is going to spend the general election campaign raging against the machine and telling voters why Begich is a RINO. Again, maybe we are naive idealists, but that does not seem like an approach that will produce a different result for Palin than the one she got last month. (Z)

Wanna Bet?

For millennia—presumably, ever since humans first invented money about 7,000 years ago—people have been betting on... everything. And politics is included among "everything." So, betting on political outcomes has a long, long history.

For people in Europe who want to scratch this particular itch, it's not too difficult, as nearly all of the major European books offer political betting. In the United States, it's not so easy. Governmental authorities tend to be very leery of wagering. Maybe this is due to concern about the social costs. Or maybe it's because the existing gambling operations (e.g., Las Vegas) have lots of very good lobbyists and use them to do whatever it takes to maintain their near-monopoly. Maybe it's some of both.

There have been a few high-profile attempts to offer political wagering for Americans, most notably PredictIt.com. That site is actually based in New Zealand, and it only offers fairly small wagers, so it would be pretty hard to blow the rent money betting on Rep. Marjorie Taylor Greene (R-GA) to become the next Speaker of the House. For these reasons, the folks who run PredictIt thought they could fly under the radar and could avoid raising the hackles of the regulators. This proved to be an incorrect assumption, however, and soon the site will be blocked in the U.S. for people who don't have a VPN.

Now, a different company thinks it's cracked the code. That would be Kalshi, Inc., which is based in the United States and is already licensed by the Commodity Futures Trading Commission (CFTC). Kalshi's shtick is that they allow people to wager on future events, arguing that this allows businesses to hedge and to reduce volatility. For example, a store owner could bet that the economy will go into a recession. If it does, then they win their bet and get money to ride out the lean times. If it doesn't, then their business continues to be successful and they don't have to worry about running out of money.

Now, Kalshi had added political wagers to its list of "products," and is trying to secure CFTC approval for this "expansion." Right now, the available wagers are pretty vanilla, like "Will the government shut down?" or "Will there be an income tax hike?" The argument that Kalshi is advancing is that these things are just as likely to affect a business's bottom line as a recession, or the outbreak of a war in Asia, or the price of frozen concentrated orange juice, and so business owners should have the opportunity to hedge as they see fit.

On one hand, this is a perfectly reasonable argument. On the other hand, nobody actually believes that the only customers will be business owners trying to keep their businesses running smoothly. That said, political betting is eventually going to be legal and above-board in the U.S., just as it is in Europe. So, the CFTC is going to have to think about whether Kalshi might be the best choice to lead the country into that brave (not so) new world, or if it's worth it to try to stem the tide for a little longer. (Z)

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