Main page    Sep. 26

Pres map
Previous | Next | Senate page | Menu

New polls: AZ GA NC PA
Dem pickups: (None)
GOP pickups: AZ GA

Can Kicked to December

Yesterday, both chambers of Congress passed a stopgap funding bill that will keep the government operating until December 20. They got it done with a few days to spare, which is positively leisurely as compared to most of these recurrent budget "crises."

The bill that passed was Speaker Mike Johnson's (R-LA) "Plan B," which included a few goodies for various parts of the federal bureaucracy (e.g., FEMA), but no money for the Department of Defense and no SAVE Act. The vote in the House was 341 to 82, with 209 Democrats and 132 Republicans voting "yea," and 82 Republicans voting "nay." Over in the Senate, it was 78 to 18, with 50 Democrats and independents and 28 Republicans voting "yea" and 18 Republicans voting "nay."

As we have noted a couple of times, this result is a very big poke in the eye for Donald Trump. He demanded that the SAVE Act be included in the bill, and didn't get it. He demanded that House Republicans shut the government down, and he didn't get that, either. In fact, his position didn't even manage a majority among the Republican conference, in either chamber. His power to do mischief is fading (though it will substantially come back to life if he's returned to the White House, of course).

Meanwhile, the Freedom Caucusers in the House have steam coming out of their ears. But it's pretty clear, at this point, that they are all bark and no bite. They could theoretically move to vacate the chair, but they know that: (1) they are not going to get a speaker more friendly to them than Johnson, and (2) they would infuriate their Republican colleagues if they pulled that stunt weeks before an election. So, the FCers (plus expelled former FCer Marjorie Taylor Greene, R-GA) will go on Newsmax and OAN to carp about how much they've been wronged, and... nobody will care.

In the short-term, the main impact of the budget being resolved is that the members of both chambers will be released from obligations in Washington, and will be free to spend the remainder of the cycle campaigning. The House will be in session today and tomorrow, and then that will be it until November 12, leaving them 39 days to hit the campaign trail. The Senate, for its part, has already been adjourned by Majority Leader Chuck Schumer (D-NY). The folks in that chamber who need to hit the hustings will thus have 41 days to do it.

In the medium-term, the members will have a nice, big headache waiting for them once the dust has settled from the election. They will have to come up with either another stop-gap bill, or—gasp!—an actual budget, and they will have to do it with the Christmas holiday, the New Year's holiday and the certification of the presidential results all on the horizon. It's hard to imagine it won't be another kick-the-can situation, since there will be a new leader of Senate Republicans, a new president, and possibly a new Speaker all incoming, but not actually in office yet.

Whatever happens, if you don't like this uncertainty, then you should be rooting for Democrats to take over control of the House. Then they will be able to put forward a grown-up budget without having to worry about temper tantrums from the FCers or from Donald Trump. That is not something that Johnson or any other Republican leader in the House can offer right now. Mind you, a Democratic budget might still be controversial, and might still be hotly contested once it gets to the Senate. But at least the sausage-making process can get underway without having to waste time on stupid show horse-ery. (Z)

Higgins May Be Censured

As long as we are on Capitol Hill, let's also note the other big news story yesterday, namely the racist tweet sent (and later deleted) by Rep. Clay Higgins (R-LA), whose past social media dalliances with bigotries of various sorts are well-known. The latest was this parroting of Donald Trump, after Higgins was triggered by news of the charges filed against the former president and his running mate by the Haitian Bridge Alliance:

Lol. These Haitians are wild. Eating pets, vudu, nastiest country in the western hemisphere, cults, slapstick gangsters... but damned if they don't feel all sophisticated now, filing charges against our President and VP. All these thugs better get their mind right and their ass out of our country before January 20th.

It's interesting; "vudu" is technically a correct spelling, but an archaic one, not unlike spelling "Mohammed" as "Mahomet." Did Higgins actually know the old spelling? Did he get it from a website? Did he just guess based on sound, and get (semi-) lucky? Or was he aware of the streaming service Vudu (now Fandango at Home), and he just went with that, assuming it was correct? (For reference, if the Congressman reads this, the usual American spelling is "voodoo," the usual Haitian spelling is "vodou" or "voudoun" and the usual French creole spelling is "vaudoux." You don't want your Neanderthal postings to be grammatically incorrect, do you?)

Higgins' posting was only up for a few hours before colleagues persuaded him to get rid of it. Taking the lead here was Rep. Byron Donalds (R-FL), whose tolerance for racism is generally very high. Higgins really had to dig down deep to clear that particular bar. That said, just because Higgins removed the tweet does not mean he thinks he was in error. He sent a statement to CNN in which he declared that "It's all true. I can put up another controversial post tomorrow if you want me to. I mean, we do have freedom of speech. I'll say what I want."

As we note in the item above, the House has relatively few working hours left before the election. However, Rep. Steven Horsford (D-NV), chair of the Congressional Black Caucus, has already filed a motion of censure. That's a privileged matter, so the House will have to vote on it shortly after they return from their November recess.

The reason we write this story up, beyond the fact that it was EVERYWHERE yesterday, is that despite Higgins' (ironic) disdain for Haitian cults, the only real cult in this story is the one that the Representative himself is a member of. Based on what happened with the budget (see above), Donald Trump is losing influence over the Republicans that never really liked him and never really respected him. However, Cult 45 is still alive and well, and that group, though a minority of officeholders, is still in a position to do plenty of damage. That's a theme that runs through the next item, as well. (Z)

Taking Matters Into Their Own Hands

There have been a couple of big stories in the last week about local MAGA officeholders taking matters into their own hands—the law, their oaths of office, human decency, etc. be damned.

First up is Portage County, OH, Sheriff Bruce Zuchowski, whose sewer of a Facebook page makes clear that he is as MAGA as it gets. The Haitians-eating-cats-and-dogs bit may make Donald Trump and J.D. Vance look racist and/or crazy to outsiders, but the MAGA faithful are eating it up. Consistent with that, Zuchowski created a Facebook post (now deleted) in which he invited people to submit the addresses of people with Kamala Harris signs in their yards. He promised to send Haitian immigrants (whom he calls "locusts") to live at those houses, as the immigrants' so-called "new families" have, apparently by virtue of their yard signs, "supported their arrival."

Zuchowski and his supporters insist that he was exercising his First Amendment right to engage in political speech. The folks who oversee Ohio law enforcement had a rather different opinion, interpreting his posting as a sign that he's open to abusing the powers of his office, and that he most certainly can't be counted upon to treat all voters equally and fairly, regardless of their political persuasion. So, he and his department have now been barred from providing election security of any sort for the balance of this election cycle.

And then there is Doug Diny, who is also as MAGA as it gets, and who was recently elected mayor of Wausau, WI, on a Trumpy platform. In particular, Diny is a big "stop the steal" guy, and one of his core "issues" (if you can call it that) was that drop boxes for ballots are a fraud being perpetrated on the American people. Wausau (population 38,399) only has one drop box, and this weekend, Diny decided to deliver on his commitment. He got a hand truck and, bringing a photographer along to make sure his heroism was well-documented, personally removed the drop box from in front of Wausau City Hall to his office (where, of course, it is not accessible to the public).

Wisconsin law does not require drop boxes, and many communities (all of them very red) have chosen not to have them. The Wausau box was placed on the orders of city clerk Kaitlyn Bernarde, consistent with guidance from the bipartisan Wisconsin Elections Commission, which places responsibility for drop box decisions in the hands of... city clerks. Diny claims that the Wisconsin Elections Commission has no authority over, you know, elections, and that the decision can only be made by the city council. Council President Lisa Rasmussen says that is news to her, and that, as far as she is concerned, the decision belongs to the city clerk. Diny says that even if that is so (and he doesn't agree that it is), the drop box is not secure, and so also had to be removed on that basis.

Whatever is going to happen, this story is not over. Bernarde referred the matter to the city's district attorney, Theresa Wetzsteon, who has launched an investigation, with backing from the Wisconsin Department of Justice. We tend to suspect that drop box isn't going to remain in the Mayor's office for much longer.

At least for now, then, the MAGA folks who think they are above the law are learning that no, they are not. What will happen when there is far less time to straighten issues out and, very probably, more MAGA types doing whatever they want to do? That's the real question. (Z)

Trouble for Adams in Big Apple

We sometimes get the question: "What would a Democratic version of Donald Trump look like?" As far as answers to that question go, you could certainly do far worse than "Mayor Eric Adams (D-New York City)." Consider:

Yesterday, Adams added another item to the list of Trump commonalities, as he was indicted by the federal government.

What, exactly, was Adams indicted for? Nobody knows yet, outside of the staff of the U.S. Attorney for the Southern District of New York. Even Adams himself does not know (although he, and the rest of the world, will find out today). Despite his ignorance of the charges and evidence against him, the Mayor declared: "It is now my belief the federal government plans to charge me with crimes. If so, these charges will be entirely false, based on lies." Perhaps that response also sounds familiar.

We have written this before, but the mayoralty of New York is NOT a springboard to higher office, despite holders' plans to the contrary. The last New York mayor who went on to serve in some other elective office was Ardolph L. Kline, who served as acting mayor for a few months in late 1913, and then was elected to a single term in the U.S. House in 1920. So, should the current scandal lead to Adams' downfall, either through resignation or impeachment, it is not going to deprive the Democratic bench in New York of a rising star.

That means that the most significant impact, outside of the city, is that the "only Republicans get grabbed by the long arm of the law" narrative will be further weakened. A Democratic senator (Robert Menendez) went down, and now the highest-profile Democratic mayor in the country is in hot water. It sure looks like the pattern is "law enforcement goes after lawbreakers" not "law enforcement goes after Republicans." (Z)

You Can't Trust Fox

"Tell me something I don't already know," you're saying. Yes, it is true that 98% of the time, the line that Fox "News" draws between journalism, on one hand, and editorial/Republican propaganda, on the other hand, is so fuzzy that you can't be sure which is which. However, for the last several news cycles, there has been one clear exception to that, and that is their Election Day decision desk. That would be the same decision desk that, famously, correctly called Arizona for Joe Biden before any other outlet.

Yesterday, Media Matters' Matt Gertz had a piece warning that even the Fox decision desk is no longer reliable. The broad problem is that, in the 4 years since 2020, the journalism part of Fox, such as it is, has even further degraded. Serious journalists and hosts, most notably Chris Wallace, have decamped for other outlets. Meanwhile, the talking-head propagandists—your Hannitys and Gutfelds (sorry, Gutfelds!) and Ingrahams—are even more fully empowered.

The more specific problem is that, on that fateful night in 2020, the credibility of the decision desk began to deteriorate before our very eyes (even if that was not entirely clear at the time). In addition to Arizona, the decision desk wanted to be the first to (correctly) call Nevada for Biden. This was an hour or so after the Arizona call, and the blowback from viewers and Republican officeholders was already so fierce that Fox executives stepped in and forbade making a call on Nevada. Meanwhile, Fox "journalists" Bret Baier and Martha MacCallum, live on air, were actively trying to undermine the Arizona call.

The crying shame of it is that the Fox decision desk still has good people. And Arnon Mishkin, who oversees that part of the operation, and who just did an interview with The New York Times, said he intends to do good work in 2024. But given the flashing red lights, you just can't be confident he'll be able to deliver.

Actually, that's not 100% true. There's a tool used by historians, particularly historians who study the Bible, called the "criterion of embarrassment" (and sometimes called "declaration against interests"). Basically, if someone writes something that is adverse to their interests, and that they would have no reason to lie about, then there's a good chance it's true. If Fox calls a key state—North Carolina, or Pennsylvania, or Arizona again—for Kamala Harris, we'd probably consider that credible. But if they do the same for Trump, well, we already know that we are going to wait until we hear from the AP or some other nonpartisan news organization before we believe it. After all, in addition to the concerns outlined above, this is also the outlet that prematurely called Florida for George W. Bush in 2000. (Z)

The Courts Are All Right

OK, today's post thus far has been a bit of a downer. Let's try, at least, to end on an up note. We had an item yesterday discussing how the Georgia Election Board's stunts are not likely to be effective, as there are some pretty powerful guardrails in place. Today, lawyer-reader A.R. in Los Angeles has agreed to write a complementary piece, looking specifically at the state Supreme Courts in the various swing states. Without further ado:

There's been a lot of attention on the political parties of state governors and secretaries of state, given their role in certifying election results. But what about state courts? More and more, as this very site pointed out just this week, they're being called upon to weigh in on election-related issues. Republicans have already filed 115 lawsuits to challenge election procedures, remove voters from the rolls or otherwise disenfranchise voters. The Republican AG of Georgia, Christopher M. Carr, has said he will sue the Georgia Elections Board to enjoin the series of edicts they issued, which are designed to gum up the elections in that state. Robert F. Kennedy Jr. continues his efforts in swing state courts to get his name OFF the ballot... after he worked/sued to get his name ON the ballot in those same states. In Florida, Gov. Ron DeSantis (R) continues to use state agencies to harass and intimidate voters who support Amendment 4, which would enshrine abortion protections in Florida's constitution. And Republicans continue their efforts in North Carolina to disenfranchise as many voters as possible ahead of Election Day. And then there's this: "Swing state election officials say they'll sue counties that won't certify 2024 result."

How are these folks likely to fare in their state courts? As a reminder, when Donald Trump lost in 2020, he unleashed his army of lawyers who brought upwards of 60 lawsuits to overturn the election results. He lost them all, even in courts with a judge Trump himself had appointed. That was very encouraging news for the integrity and independence of our federal court system, even with the U.S. Supreme Court being firmly in the bag for right-wing Republican causes, and the small matter of its decision finding that presidents are largely above the law. (The jury is still out as to whether that decision will actually help Trump escape his legal troubles.)

In normal times, state elections boards want everyone to be able to vote, and do not engage in partisan attempts to create chaos in the polling process or lay the groundwork for sowing doubts about the integrity of our elections. But here we are. If a group—or, for example, Georgia's AG—challenges some of these last-minute changes, the courts must hear those cases and rule on them. Contrary to some reports, this is the judiciary's job. Truth be told, the courts would rather not be involved—it creates a lot of work for them in an already-overburdened system and also requires an expedited process, which stresses the system further.

So, the first thing I would say is: Give the courts a break. Judges and their staffs are working very hard under very difficult conditions in an increasingly thankless job, and what they do is incredibly important. That leads to a second point: We need to stop bashing the courts and painting every judge as a partisan hack. Nothing could be further from the truth. The political party of the official who appointed the judge isn't necessarily indicative of how the judge will decide cases. Most judges are independent and take pride in their oath to interpret the law fairly and without bias—ideologues driven only by partisan considerations are rare. Finally, just because an outcome seems to align with a judge's alleged political affiliation does not mean it was ideologically-driven. That last point is particularly critical to remember.

There are numerous examples of this, but I'll note one: The Arizona Supreme Court recently ruled that an abortion ban that originated in 1864 was enforceable following the Dobbs decision. The media immediately concluded that because the majority of justices had been appointed by a Republican governor, the Court was in the bag for Republicans. This was incredibly lazy reporting. If anyone had bothered to read the decision, they would see that the Court was, in fact, doing its job. The law was not only still on the books, but it had been recodified multiple times, most recently in 1973, before Roe was decided. And yet the press erroneously continues to refer to this law as an 1864 abortion ban. The only reason it wasn't being enforced was because the federal constitution preempted it after the Roe ruling was handed down. Once the U.S. Supreme Court determined in Dobbs that reproductive rights are not fundamental rights under the federal constitution, that law was no longer preempted.

The only question before the Arizona Supreme Court, then, was whether subsequent abortion restrictions had impliedly repealed the earlier law. The Court, not unreasonably, held that no, the Arizona legislature had not intended to repeal the earlier ban. How did they know? Because the state legislature explicitly said that, in passing these other restrictions, they did not intend to repeal the law banning abortion. Had the Court ignored this evidence of intent, they would have been legislating from the bench and engaging in the type of activism we so often decry. Instead, the legislature then explicitly repealed the law, which is how the system is supposed to work. So, beware of the easy, oversimplified "analysis" of a court's ruling and the temptation to tar the court with a partisan brush unless the evidence is really there. Incidentally, two of the Justices who were in the majority are up for retention in this election, and Democrats are engaging in a concerted campaign to oust them as punishment for this decision. These justices performed their role responsibly and properly, and efforts like that only serve to further politicize our judiciary.

Without a painstaking review of each state Supreme Court's judicial opinions, another way to glean a court's independence is the process by which the justices are selected. Many states use an independent judicial nominating commission to vet and select candidates for appellate courts and some lower courts. There are strict rules on who can serve on these commissions. For example, in Arizona, of a 10-member body, no more than 5 can be of the same party. The commission selects three qualified applicants to recommend to the appointing official and that official has a certain amount of time, generally 60 days, to select one of the three candidates. Unfortunately, while this method could ensure a court's independence, in most of the states where the method is in use, it's "governor-controlled." This means that the governor can either appoint a majority of the commission members or can simply ignore the candidates recommended by the commission and appoint his/her own. A "hybrid" process means that neither the Bar association nor the Governor control a majority of the commission appointments. Each state has different rules; you can read a rundown here.

Of the swing states in this election, here are the ones that use this process: Arizona (governor-controlled), Florida (governor-controlled). And states with this process where abortion rights are on the ballot: Colorado (governor-controlled), Missouri (hybrid), Nebraska (hybrid). Interestingly, in Missouri, the Court sided with the proponents of an abortion rights ballot measure against a Republican challenge, finding that it did not violate initiative petition requirements and, thus, could remain on the ballot. Similar challenges failed in Nebraska and Arizona.

In Florida, five of the seven Justices were appointed by DeSantis. This is probably the second biggest problem area among key states' Supreme Courts in 2024. The Florida Court recently overturned its earlier decisions that had found that the state Constitution's privacy clause protected a woman's right to choose. This decision allowed Florida's 15-week abortion ban to take effect. Now, there's an amendment on the ballot to restore those rights, but Republicans, and DeSantis in particular, are doing everything they can to use all the levers of government to keep the people from deciding this issue. The Court denied a Republican challenge to remove the amendment from the ballot, finding that it was properly certified. That's good news. Currently, there's a case pending in the Court that challenges Florida's health department's use of its website to peddle propaganda about the amendment. Supposedly, the Court has "expedited" this case, but gave a rather lengthy briefing schedule and no stay has been put in place. So, while the Court is looking at this issue, voters are still faced with false information from an official government website.

In Wisconsin, the Justices are elected and, although it's ostensibly a non-partisan election, the candidates made their views about hot-button political topics known, including gerrymandering and abortion rights. Currently, the Court is 4-3 with Democrats in the majority. Just on Friday, the Court said it would decide whether RFK Jr. should remain on the ballot. Recently, the Court denied an attempt by Republicans to oust Wisconsin's elections administrator. That seems to indicate that they will not look kindly on any efforts to gum up the works or refuse to certify ballots.

Montana's Supreme Court justices are also elected in non-partisan elections, though that state's Supreme Court lived up to its libertarian roots recently when it held that abortion rights are protected in the Montana Constitution. They are showing themselves to be independent and not likely swayed by partisan politics.

The 9-member Georgia Supreme Court was appointed by Governors Brian Kemp and Nathan Deal, both Republicans. Kemp isn't on board with election shenanigans, and Carr, the Republican AG, is already suing to enjoin the Georgia Election Board from passing laws that they are not empowered to enact. Given that, it's unlikely the Court will try to tip the scales toward Trump and that they will quickly enjoin the Georgia Elections Board's unauthorized actions. Further demonstrating their independence, on Tuesday they expressed skepticism that third-party candidates West and de la Cruz should remain on the ballot. Secretary of State Brad Raffensperger (R) and the Republican Party argued those votes should count; the latter was certainly motivated by the fact that the votes would come out of Kamala Harris' hide. But the Court is interpreting a state law with strict requirements for petitions to get independent candidates on the ballot, and seems to be adhering to it.

Eight states have partisan elections, including Pennsylvania. The current Court is 5-2, with 5 Democrats and 2 Republicans. But again, one can't assume a case's outcome just by party affiliation. Case in point: The Pennsylvania Court recently ruled that the law says what it says regarding a date requirement on absentee ballots, even if the rule is dumb. That rule is more likely to cost the Democrats votes, so those justices are clearly not in the bag for the blue team. If the legislature wants to change that law, that's up to them, not the courts. Also remember that in Pennsylvania, the state Secretary of State is Republican Al Schmidt, who has proven himself to be fair and nonpartisan in his administration of elections. In 2022, he sued several counties that had refused to certify their election results and courts ordered the counties to certify per PA's clear election laws. I wouldn't expect any different outcome should the same occur this time around.

North Carolina also has a partisan election, but unlike the Pennsylvania Court, the Carolina justices have a clear partisan agenda. This Court is the most concerning, even more so than Florida's Court. They are aggressive ideologues, as their recent decisions have shown. It is currently 5-2, with Republicans in the majority. One of the Democrats is up for re-election this November. The Court has already sparked controversy in a 4-3 decision to allow RFK Jr. to get off the ballot, even though his request was made with too little time for counties to reprint ballots to meet a 60-day deadline to mail out absentee ballots. One Republican dissented with the Democrats. That is not a good sign in terms of any shenanigans Republicans may pull if they lose. The party has already sued to remove over 200,000 voters from the rolls due to alleged registration issues—that case is still pending. As this site has pointed out, as recently as yesterday, the most harmful efforts occur before votes are cast. We'll see how far the NC Court is willing to go to suppress the vote.

With North Carolina ostensibly in play, this could become a factor after the election as well. The Court has already signaled a willingness to ignore election law to help Donald Trump. Even with a Democratic governor and secretary of state, if the Court decided to wade in to rule that certain election results can't be certified, there's really nowhere else for the governor to go. But as (Z)'s item noted yesterday, the NC Supreme Court's chicanery could land the state out of the picture altogether if the votes are not ascertained by the Dec. 17 deadline.

And then there's Michigan, which has something called the "Michigan method." Although it sounds like a code name for a War Games scenario, it's actually an election method that combines a party convention-style selection of judicial candidates with a non-partisan election. So, even though the candidates are selected by their parties, they run without their party affiliations identified. How has that worked in Michigan? So far, so good. Earlier this month, the Court refused to allow RFK Jr. to remove his name from the ballot this close to the election, which is in line with Michigan election law.

The bottom line is that most of the state Supreme Courts in the states where any mischief is likely to occur have demonstrated their integrity and independence such that we can depend on them to protect the franchise and the integrity of our electoral process. Obviously, the courts that don't function properly cause a lot more mischief—see Supreme Court, United States and Cannon, Aileen—and there are reasons to be worried about Florida and North Carolina, as noted above. But the judiciary, as a whole, held in 2020 and there's every reason to believe it will hold again in 2024.

Thanks, as always, A.R.! (Z)

Today's Presidential Polls

See all those white boxes? That means: "The pollsters think this election is going to be close." Like Joe Biden, Kamala Harris looks to be stronger in the northern states than the southern ones. Unlike Biden, Harris is at least competitive in the southern states. (Z)

State Kamala Harris Donald Trump Start End Pollster
Arizona 49% 50% Sep 18 Sep 23 Marist Coll.
Georgia 49% 50% Sep 18 Sep 23 Marist Coll.
Georgia 49% 51% Sep 20 Sep 24 YouGov
North Carolina 47% 50% Sep 11 Sep 17 Fabrizio + Anzalone
North Carolina 49% 49% Sep 18 Sep 23 Marist Coll.
Pennsylvania 48% 48% Sep 16 Sep 19 Muhlenberg Coll.

Click on a state name for a graph of its polling history.

Today's Senate Polls

We will have an item tomorrow about some of the surprising Senate races, particularly Nebraska. Note that Dan Osborn is functionally a Democrat even if he's running as an independent. (Z)

State Democrat D % Republican R % Start End Pollster
Nebraska Dan Osborn 45% Deb Fischer* 44% Sep 20 Sep 23 SurveyUSA
Nebraska-special Preston Love 35% Pete Ricketts* 53% Sep 20 Sep 23 SurveyUSA
Pennsylvania Bob Casey* 48% David McCormick 43% Sep 16 Sep 19 Muhlenberg Coll.
Utah Carolyn Gleich 34% John Curtis 53% Aug 29 Sep 19 Lighthouse Research

* Denotes incumbent


Previous | Next

Main page for smartphones

Main page for tablets and computers