Tomorrow Is the Presidential Election

As you undoubtedly know, the real presidential election will take place in the 50 state capitals and D.C. tomorrow. Then, the 538 people authorized to vote for president will do just that. Will there be drama? Faithless electors? Probably not, but you never know. How does it work, exactly?

Here is the official playbook. Once the popular vote is certified, the governor of each state and mayor of D.C. prepare seven original Certificates of Ascertainment. There is no official form the governor can download somewhere. He or she has to wing it. As an example, here is page 1 of the Arizona certificate for 2020:

It runs seven pages and lists how many votes each presidential elector got. Page 1 is the biggie. It says who the winning electors are. The next pages list all the electors who didn't win for the parties on the ballot and how many votes each got. If you want to download the certificates for other states here they are.

The governor (or mayor) prepares seven copies of the certificate, signed by the governor and containing at least one security feature to make it possible to detect forgeries. One gets sent to the National Archives. The other six are held by the governor until tomorrow.

In addition, after the electors named in the Certificates of Ascertainment have voted tomorrow, the governor must prepare six copies of the Certificate of Vote, which states how the electors voted. That must be signed by all the electors. The six Certificates of Ascertainment (which say who the electors are) and the Certificates of Vote (which say how they voted) are paired. Federal law does not specify if they are to be connected by staples, paperclips, glue, or other means. The six copies are put into sealed envelopes and sent as follows:

• One copy goes to President of the Senate Kamala Harris.
• Two copies go to Archivist of the United States Dr. Colleen Shogan.
• Two copies go to the state's chief election officer, usually the secretary of state.
• One copy goes to the chief judge of the state's federal district court.

The paired certificates, bearing the relevant signatures, must arrive by Christmas, a nice present for everyone except the President of the Senate. OK, the law does not say Christmas. It says the fourth Wednesday in December, and this year that happens to be Christmas Day. Everybody who gets one tries not to lose it.

On Jan. 6, 2025, the President of the Senate opens the 51 envelopes, boots up a calculator app on her smartphone, and starts counting. The Archivist of the United States has to be there to check that the President of the Senate is not faking some electoral votes. The Electoral Count Reform Act of 2022 states that the President of the Senate merely opens the envelopes and announces what's on the Certificates of Vote. She does not get to say: "I don't like this one, so let's not count it." This point was a bit of an issue in 2021, as you might have heard. On Jan. 20 at noon, the president-elect and vice-president-elect take their respective oaths of office. The president then gets to work signing XO's or taking the day off, or whatever he wants to do. The vice president then contemplates John Nance ("Cactus Jack") Garner's famous words about what his new office is not worth. (V)

Trump 15 Million, ABC News 0

High on the list of what authoritarians do is cow the media. Donald Trump has been working on that for a while, and now he has scored a major victory. He sued ABC News because in an interview, George Stephanopoulos said Trump was found liable for rape by a New York court. Technically, what he did to E. Jean Carroll is considered sexual assault, not rape, under New York law, although under the DoJ definition it is most definitely rape. The judge did note that what the jury found he did falls under the common definition of rape and under the laws of other states but in New York it is called sexual assault, not rape. New York's definition is an older one. Most other states have updated their definition, but not New York.

ABC News decided it was better to pay Trump than fight this in court, so they paid him $15 million to make the case go away. Stepanopoulos also has to say he "regrets" the mistake. This is a warning to the media that Trump will go after them if they anger him. In this case, it is merely a warning for interviewers to be very careful about terminology. Trump can be called someone who was found liable for sexual assault, but he can't be called a rapist. Will this one case cow the media? Probably not, but it will make interviewers, talking heads, and writers more careful about their exact words. As to the Jan. 6 case, one cannot say Trump led an insurrection (because he hasn't been convicted so far), but one can say that he was indicted by a federal grand jury for conspiring to defraud the United States. To us, the correct wording sounds worse than "insurrectionist." (V)

How Will Trump Go after the "Anchor Babies"?

Donald Trump and the Republicans like to describe babies born to undocumented immigrants shortly after their arrival as "anchor babies." Per the Fourteenth Amendment, these babies are American citizens. American citizens cannot be deported. In theory, the government could deport the parents and put the babies up for adoption by Americans, but the optics of this aren't very nice. So, effectively, the babies "anchor" the parents in the U.S. and make it (politically) difficult to deport them. This is what Donald Trump wants to change. But how?

Repealing the Fourteenth Amendment is not going to happen because it requires two-thirds of each chamber of Congress to sign on to a new Amendment repealing the Fourteenth, followed by getting three-quarters of the states to ratify it. Trump knows this is too high a bar to clear, and isn't going to go this route. The only Supreme Court ruling on this issue is from 1898 in U.S. v. Wong Kim Ark, in which the Court ruled that Ark was an American citizen because he was born in America. His parents were legal immigrants from China. The Court has never ruled on whether the U.S.-born children of undocumented immigrants are also citizens. Trump wants a ruling on this.

He will try to get his ruling with an XO. Remember that an XO is merely an order to the bureaucracy, not even a law. There are a couple of ways Trump could create a case that could get to the Supreme Court. One is to issue an order to the State Department not to issue any passports to children whose parents cannot prove they are legal residents of the U.S. The parents would no doubt sue and the case would eventually hit the Supreme Court. Who knows how it might rule? The Fourteenth Amendment also says that people who have participated in an insurrection against the United States may not serve in public office, but when a case came up from Colorado, the Court ruled that the Fourteenth Amendment doesn't actually mean anything. It could rule that again.

A second thing Trump could do is order the Social Security Administration not to issue a Social Security number to the children of undocumented immigrants. They would probably sue, as well, providing another potential test case. He could also order the agencies that provide various federal benefits to deny them to the children whose parents were not legal residents. Clearly the people denied passports, SSNs, or benefits would have standing to sue. There would be amicus briefs out the wazoo.

The Supreme Court probably does not want this hot potato, so most likely it would refuse to take any case directly. A challenge would have to first go to a district court, then an appeals court before an appellant could ask for cert. This could take years. If a Democrat is elected in 2028, he or she could make the case moot by simply granting the passport, SSN, or benefit and thus avoiding a ruling. So, Trump could "deliver" on his promise without actually delivering. That is a situation that he has found satisfactory in the past, and may find satisfactory here. (V)

Americans WANT Retribution

Jonathan V. Last (JVL) has another interesting column over at the Bulwark. He speculates about whether the Democrats should go full-blown populist now. He is not interested in whether that is a good idea or the morally correct thing to do. He cares only about whether it would win elections.

Last's first point is whether the current Republican Party is a continuation of the Bob Dole-George W. Bush-John McCain-Mitt Romney Republican Party or a complete break with it and something genuinely new, like American Peronism. Donald Trump didn't campaign on improving people's lives based on the free enterprise system, as Republicans have done for decades. He campaigned on inflicting pain on his enemies. Instead of talking about peace and prosperity, his themes were:

• Deporting immigrants who "poison the blood" of the nation.
• Retribution and imprisonment of his domestic political opponents and journalists.
• Punishing disfavored countries (including China, Mexico, and Canada) by levying tariffs on imports from them.

Nothing like Herbert Hoover's "Chicken for every pot" ad:

Trump didn't promise to improve people's lives. He didn't say a word about replacing the ACA with "something better" or making the tax system fairer for ordinary folks. He promised to inflict pain on people his base doesn't like, especially "other" people (read: immigrants and minorities).

Last argues that if the Democrats run in 2028 on gradually improving people's lives in many small ways, it won't work. Joe Biden signed more laws that improve people's lives than any president since Lyndon Johnson and, on a good day, Biden's popularity rose to almost 40%. That plan does not work. It is not what (many) voters want. They want to inflict pain on their enemies and punish them. Last didn't suggest the answer, but others have. Keep reading. (V)

Democratic Pollster: Don't Run the 2017 Playbook in 2025

On Friday, Democratic pollster Molly Murphy told the DNC that running the 2017 playbook against Donald Trump in 2025 will not work. She told them that voters do not care that most of Trump's cabinet nominees are incompetent, creeps, or incompetent creeps. She said that voters are willing to give him a pass if he can make eggs cheaper. Of course, in a recent interview, he admitted that he can't do this, so maybe he won't get a pass when they discover this.

Murphy noted that key parts of the Democratic base, including young, Latino, and Black voters, moved away from the Democrats. White working-class voters have been doing this for decades now. For many of these people, the "system" is not working for them. While they may not want to dismantle institutions like the civil service, the courts, and the media, they don't really object, either.

Murphy warned the Democrats not to focus on attacking Trump for violating norms, rules, and laws. The voters the party lost don't care. The elites and college-educated suburban moms care, but there are not enough of them to win elections. She said that the Democrats' new message should focus on Trump's plans to cut taxes for rich people and big corporations and rail against these. She also said if he implements tariffs, Democrats should find specific items that have gone up a lot in price and harp on the massive inflation Trump caused.

Numerous writers, for example, Catherine Rampell, have condemned the assassination of United Healthcare CEO Brian Thompson, but also said it shows a way forward for the Democrats. People get agitated when they have a clear enemy. Democrats can rail against multimillionaire CEOs, painting them as enemies of the people, and massive corporations answerable only to their own stockholders. The blue team can run on punishing American oligarchs and giant multinational companies. For example, they can advocate levying much higher income taxes on rich people, a vastly higher estate tax so Elon Musk's kids don't become billionaires just because they had a rich father. They can push for an antitrust law that makes it illegal to have more than a 10% share of any market, in order to break up companies like United Healthcare and create more competition. Breaking up the big banks, by passing an updated Glass-Steagall law and related laws for the insurance industry and other much-hated industries, could be a real winner. Saying that American oligarchs like Elon Musk are even worse than Russian oligarchs (because the latter are not involved in politics much) could be a real winner.

It would be turning Sen. Bernie Sanders (I-VT) on his head. He argued that the government should do more to help people—for example, by raising the minimum wage. The new pitch would be about punishing the enemies of the people by taxing them or breaking them up, which would also help people (by raising revenue and allowing competition to lower prices) but the emphasis would be on punishing the villains. It works for the Republicans. They have plenty of villains in their stories and their voters love it. Democrats could do the same thing, only with different villains. (V)

State Legislatures Were Also on the Ballot

State legislative elections are deep in the weeds and rarely reported, except maybe on page 15 of newspapers in the state where the election happened. Nevertheless, since Congress will probably not be able to do much beyond budget matters in the next 2 years on account of the Freedom Caucus in the House and the filibuster in the Senate, state governments are increasingly important.

So, did anything happen to state governments on Nov. 5? Yes. Eighty-five state legislative chambers were on the ballot, although in many cases (especially state Senates) not every seat was up. The biggest changes were in Michigan and Minnesota. In Michigan, the Republicans broke the Democrats' trifecta by flipping four seats, capturing the state House 58-52. The Democrats still control the state Senate by one seat, with one vacancy in a Democratic district until a special election can be held. Gov. Gretchen Whitmer (D-MI) will still be governor until Jan. 2027, so the state will be paralyzed at least until Jan. 2027, when the Democrats could again get the trifecta.

In Minnesota, the DFL trifecta was broken when the state House was tied at 67-67 (it was 70-64). Some sort of power-sharing arrangement will have to be worked out. The DFL controls the state Senate 34-33. Gov. Tim Walz (DFL-MN) is going to have a tough time governing now. (Note to anyone in D.C. or Puerto Rico working on a potential state Constitution in the event of eventual statehood: Make each chamber of the legislature have an odd number of seats.)

In Montana, Democrats broke the Republicans' supermajorities in both chambers of the state legislature, but that doesn't matter so much since the governor is a Republican so there is not much need for the legislature to override any bills he vetoed.

In Nevada, Democrats lost one seat in the Assembly, and with it their supermajority so they can no longer override vetoes issued by Gov. Joe Lombardo (R-NV). Nevertheless, with the Democrats controlling both chambers of the state legislature with large majorities, Lombardo will have to compromise to get anything at all done. One footnote here is that 60% of the state legislators in Nevada are women, the largest percentage of any state.

In New York, Democrats have to be thankful that the swing toward Donald Trump didn't cost them a lot in the state legislature. They did lose a seat in the Asian-dominated SD-17 in South Brooklyn, and with it their supermajority. However, the Senate Democrats don't usually fight much with Gov. Kathy Hochul (D-NY).

North Carolina is a bit tricky. Trump increased his margin there to 3%, but Democrats won the governorship, lieutenant governorship, AG, SoS, and superintendent of public instruction races. They also flipped a state House seat, breaking the Republicans' supermajority and making it impossible to override the many expected vetoes of Gov.-elect Josh Stein (D-NC). However, there is a chance that moderate Democratic Rep. Cecil Brockman, who represents a heavily Democratic district in Guilford County (Greensboro), may switch to the GOP in return for a promise to support him if he runs for the Council of State in 2028. His constituents? Sorry, dumb suckers.

In Vermont, Gov. Phil Scott (R-VT) was reelected with 73% of the vote. Not bad for a Republican in a very blue state. He ran a good campaign and his coattails brought in six seats in the state Senate and 19 in the state House, breaking the Democrats' supermajorities. Now the Democrats have to play ball with Scott. One thing the Democrats could have done in the current session—and didn't—is enact a law like Idaho and other Western states have, stating that in the event of a U.S. Senate vacancy, the party of the departed senator draws up a list of three potential replacements and the governor must choose one of them. If either Bernie Sanders, who is 83, or Sen. Peter Welch (D-VT), who is 77, should cease to be a senator in their current term, Scott could replace them with a Republican, even though he said he wouldn't. Nevertheless, writing that into state law would have been a lot better for the Democrats, and now it is too late, at least until 2027.

After the Wisconsin Supreme Court threw out the badly gerrymandered state maps, the Democrats had their first real shot at capturing the state legislature in a decade.They got closer, but didn't make it. The GOP will control the state Senate 18-15 and the state Assembly 54-45 (was 22-10 with one vacancy and 64-35, respectively). However, in 2026 the Democrats could flip more seats and get the trifecta if Gov. Tony Evers (D-WI) runs for a third term and wins. (V)

Cleta Mitchell Is Working to Restrict Voting Even More

As noted above, state legislatures are important. If you think some states try to restrict voting now, you ain't seen nothin' yet. Cleta Mitchell, a lawyer who helped Donald Trump try to steal the 2020 election, has big plans for future elections. With the help of a few billionaires and wealthy special interest groups, she has formed the Election Integrity Network (EIN). She is working with the right-wing American Legislative Exchange Council (ALEC) to get her ideas written into state laws. The key idea is to make it more onerous for some people to vote.

Here are just some of the items on her wish list:

• Require physical documents proving citizenship to register to vote.
• Only documents issued only to citizens may be used to vote (e.g., no student ID cards).
• Voter registration available only at election offices and DMV offices.
• Apportionment for the House and EVs based on citizens in the state, not on people in the state.
• Permissible voter ID must confirm all of: identity, residency, and U.S. citizenship.
• Voting by mail must use the same ID procedures as voting in person.
• No mail-in ballots will be accepted after the close of polls on Election Day
• Limit early voting to a maximum of 10 days.
• Establish clear and limited rules for who is allowed to vote absentee (e.g., only disabled people).
• No ballot curing for technical errors on ballots or envelopes (e.g., the voter forgot to write in the date).
• Repeated ongoing updating of voter rolls.
• Only paper ballots, no touchscreen machines or QR codes on ballots.
• Require third-party audits of election procedures.
• Eliminate risk-limiting audits.
• Require separate procedures for overseas military and overseas civilians.
• Allow overseas military voters to vote only for president unless previously registered in a state.
• Reduce the use of provisional ballots to a minimum.
• Make it much more difficult to get standing to challenge election laws.

ALEC will work with state legislators to accomplish these goals. "Work with" specifically means "write a bill, give it to a state legislator, and ask that person to toss it in the hopper unmodified." Bonus points and campaign contributions may be available for introducing the bill, having it be marked up in committee, being voted onto the floor by the committee, passing the chamber, passing the legislature, and being signed into law by the governor.

ALEC says that its top priority is to make it impossible for noncitizens to vote, something that almost never happens now. In reality, many of the items above have little to do with noncitizens voting. For example, how does reducing early voting from 30 days to 10 days reduce noncitizen voting other than by reducing all voting? However, ALEC is keenly aware that about 10% of the population has no documentary proof of citizenship, cannot acquire it easily, and these people tend to be poor and skew Democratic. For example, many do not have a driver's license and may have lost their birth certificate. The idea here is to make voting hard for someone with a job where they can't take off in the middle of the day to get a new birth certificate if: (1) the relevant office is open only 10 to 2 weekdays, (2) that office requires proof of who you are to get a certificate, and (3) charges $50 for a new certificate.

EIN has other goals as well, such as giving local officials more power to block election certification, repealing laws making it a crime to intimidate election officials, making it harder for overseas voters (including military personnel) to vote, and repealing blackout periods. That last one has to do with state laws that prohibit challenges to voters in the weeks before an election. If repealed, anti-voter activist groups could inundate election offices with challenges and demand that thousands of voters be purged from the rolls a few weeks before the election, with no time to verify if the challenges were valid. Then some offices may simply decide to purge all the challenged voters because there is no time to check. (V)

The Red States Are Going to Town

Republican governors and legislatures can't wait for Donald Trump to enact conservative policies in many areas. Literally can't wait. In fact, they are planning to get a jump on him and do it themselves. The list is long.

Idaho lawmakers want to allow teachers to carry concealed guns, so the Shootout at the OK Corral can become the shootout in the school cafeteria. They also want parents to be able to sue libraries and school districts. Oklahoma lawmakers want to restrict even emergency abortions and mandate that the Ten Commandments be displayed in public schools. Arkansas lawmakers want to make pharmaceutical companies criminally liable for "vaccine harm." We knew that somebody would someday go after big pharma companies, but we were expecting it to come from California, not Arkansas.

Texas has the biggest plans of all. The legislature is going to create its own floating border barriers and border patrol, repeal in-state tuition for undocumented college students (and report them to state authorities), and get DNA samples of migrants to subsequently identify them. The legislators also want to allow state troopers to run their own mini-Operation Wetback, bar undocumented immigrants from all public services, and much more. It will be a conservafest.

Gov. Ron DeSantis (R-FL) doesn't want to miss the party. He is going to try again to ban gender-affirming care for minors (the courts got in the way this year), require schools to teach anti-Communism (so when Republicans call Democrats Communists, the voters will at least know what they are), and forbid hundreds of books from being in school libraries. DeSantis is also a supporter of school choice, which is designed to destroy the public school system. He would surely compete with Gov. Greg Abbott (R-TX) for the "Conservative Governor of the Year Award," if there were one.

Everybody is going to go nuts on transgender rights, starting with banning puberty blockers and hormones, saying they are unproven. It's true that running double-blind controlled experiments in that area is more difficult than it is with new drugs. Banning biological boys from girls' sports teams and locker rooms is also high on the list. Here Donald Trump will help by changing Title IX regulations to eliminate transgender as a protected category.

There will be 27 Republican governors, 23 of which have trifectas, and they will go to town. Kansas has a Democratic governor, but Republicans have a supermajority in the state legislature, so they can rule from there. With the federal government unwilling to sue to stop any of this, the Republican governors can get going working their will on reproductive health, labor rights, free speech, and enabling private schools to compete with public schools—on the taxpayer's dime. Getting stuff done in deep-red states is easier than in Congress because most states don't have a formal filibuster rule where the minority can block bills for as long as they can stand and read the Bible or Shakespeare out loud.

There are two different goals at work here: fanning the culture wars and increasing the power of corporations. The two aren't necessarily in conflict, but legislatures sometimes have trouble focusing on two things at once. Different groups of lobbyists are pushing for different laws. In some states, one or the other might dominate, depending on who has the most clout.

Some blue states may try to implement the opposite policies from the red states, but in that case Trump might try to take that power away from the states, setting up federal vs. state battles that the Supreme Court will have to deal with. This could put the Court in a bind. On the specifics of the issues (e.g., "Can California require stricter emission controls on cars than the feds?"), the conservative justices might want to go with the feds and against the states, but they know that if a Democrat is elected president in 2028, they will be stuck with precedents they don't like, so they may tread lightly. (V)

It's Beginning to Look a Lot Like Christmas, Day 9: Trump Christmas Cards

This week, we are doing reader-suggested Christmas cards for various political figures. Here are six possibilities for Donald Trump:

• B.Y. in Goldendale, WA:
  
  
  
  
• M.S. in Canton, NY: Donald Trump's Christmas card to Democrats:
  
  
  
  
• M.B. in Los Angeles, CA:
  
  
  
  
• S.S. in Lucerne, Switzerland: Because that's the sort of classy guy he is.
  
  
  
  
• D.F. in Hamilton, Scotland:
  
  Just the two of us
  Causing chaos if we try
  Just the two of us
  You and I
  
  Just the two of us
  We can cheat and we can lie
  Just the two of us
  You and I
  
  
  
  
• C.R. in Pelham, AL:
  
  

Tomorrow, it will be Jeff Bezos. Send your suggestions to comments@electoral-vote.com. (Z)

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