Shugerblog

Biden 369-Trump 169:

By the way, this is no wildly optimistic fantasy. I’m assuming the polls are right, and underestimated minority Election Day turnout, which offsets the problems of mail delays and rejecting absentee ballots. But the mail and the absentee process are still problems.

Senate: Dems flip CO, AZ, ME, NC, IA, and 2 surprises: MT and GA (Ossoff wins 50%, no run-off). Lose AL. +6 = 53-46 Dem Senate. GA Special will be a run-off.

House: Dems gain for 243-192 majority: flip NJ2, NC2, NC6, AZ6, MN1, TX23, TX24, PA10, OH1, GA7, IN5.

Gov: One flip: Dems lose Montana.

…that the Democratic Party was on a path to totally acquiesce to Gorsuch and Kavanaugh, especially after Roberts steered to the middle (June Medical, DACA…). And in all likelihood, Barrett wasn’t enough to tip the Dems to act. Biden and Harris punted it like it was 4th and 40. But the last week of the election, Barrett made herself into a Trump campaign Il Duce balcony photo op (after a first one was a superspreader disaster), showed she would recuse from election cases, for which Trump bragged he has appointed her as (his own) 5th vote. And then Gorsuch and Kavanaugh and a bunch of lower court judges jumped the shark in utterly brazen, sloppy, and unstrategic decisions and botched the long-game and seem to have provoked many moderate, incrementalist cautious Democrats like me to embrace sweeping judicial reform.

Dear friends, The Senate means more than ever, for many reasons:
1. A Republican Senate will block all or most of a Democratic president’s judicial nominees, including a new Supreme Court nomination if one becomes open.

2. If you think adding seats to the Court is appropriate after Amy Coney Barrett’s confirmation, you need both Houses to do so.

3. A new Congress could moot the pending Supreme Court challenge to the Affordable Care Act by reviving the individual mandate tax, even as $1. But the Democrats need both Houses to do so. 

4. A new Congress could pass crucial voting rights legislation, federal protections of reproductive rights, and a badly needed economic recovery package. McConnell’s GOP Senate would block all of these efforts. 

5. If recounts prevent the Electoral College and the House from electing a new president, the new Senate could elect Pence Vice President, and it is plausible that he would become president until the lengthy legal disputes over the presidential vote would be resolved.

So here are the SEVEN Senate races most worth our attention and donations over the next week. Remember: these campaigns need donations immediately to buy advertising and get-out-the-vote/get-the-mailed-votes-right efforts immediately. (I think the Colorado race is a relatively safe pick-up for Hickenlooper over Gardner).

1. Maine: Sara Gideon (D) vs. Susan Collins (R). Top of the list because even though Biden is far ahead of Trump, Gideon is only a few points ahead. Collins has remarkably strong support in Maine as a perceived moderate over 24 years, and she may be able to use her opposition to Amy Coney Barrett to win back independents. She deserves to lose most for her Kavanaugh vote.538 gives Gideon just a 62% chance of winning. And the 2d Cong. district in Maine could be necessary for Biden, so double-whammy spending. Gideon is also an excellent candidate, potentially a future star in the party.

https://saragideon.com/

2. Arizona: Mark Kelly (D) (astronaut husband of Gabby Giffords) vs. Martha McSally (R – MAGA Nut). 538 gives Kelly a 79% of winning, but this is still top-of-the-list because Arizona is one of two states most likely to give Biden 270 electoral votes. The other is Pennsylvania, likely to have long delays counting about three million absentee ballots. Money spent in Arizona is a double-whammy.

https://markkelly.com/

3. Iowa: Theresa Greenfield (D) vs. Joni Ernst (R) 538 currently has this race 50/50, and two high quality polls came out this week showing Greenfield pulling ahead by 2 points. Ernst is crazy MAGA. Greenfield is solid. And Iowa is increasingly competitve for Biden, too. Another dobule-whammy.

https://greenfieldforiowa.com/

4. UPDATE: Michigan: Peters (D incumbent) over James (R). Surprisingly, the polls have gotten closer. It may be a couple of outlier polls, but I think James has raised a ton of money. And Peters needs to outraise James:

https://petersformichigan.com/

[UPDATE: Harrison raised a record $54M last quarter, more money than he can spent. It’s good news, but that’s why I’m downgrading South Carolina: Jaime Harrison (D) v. Lindsey Graham (R).I’m putting this high on the list because Harrison is so awesome (he is a dynamic Black man, and he is a good friend of some of my friends from Yale College), and Graham is such a coward. 538 puts Graham’s chances at 78%, but that’s a remarkably close race, and what a message it would send. https://jaimeharrison.com/

5. Montana: Steve Bullock (D) v. Steve Daines (R). A battle of the Steves is Even-Steven. Bullock ran for president. Montana has one Democratic Senator (Jon Tester). The NY Times “A+” poll showed a one-point race two weeks ago. 538 gives Bullock a 34% shot, but I think he’s got a much better shot than that, and money goes a long way in low-population state like Montana.

https://stevebullock.com/

6. Georgia: Jon Ossoff (D) v. Perdue (R). Perdue has his own Covid-insider-trading scandal (similar to Sens. Richard Burr and Kelly Loeffler) that should be getting more attention and advertising. 538 gives Ossoff a 26% chance of winning, but I think Georgia has an underrated chance of swinging blue now.

https://electjon.com/

7. North Carolina: Cunningham (D) v. Tillis (R). This race had been steadily trending toward Cunningham. You may have heard about Cunningham’s stupid sexts. I’ve dropped him down the list here, even though North Carolina is a Biden/Senate double-whammy. I want to see more polling data to see if he is hurt by the texts. My guess is that the scandal has surely been drowned out by Trump and Tillis getting Covid, and other national insanity. But North Carolina also has a terrible absentee ballot system that is grossly discriminatory. Maybe that’s more reason to donate, but maybe other states are a better bet. UPDATE: Cunningham’s polling appears stable post-texting here, a significant 48%-42% lead by a very good pollster. Maybe such a solid lead that we should focus on other races anyway?

https://www.calfornc.com/ 

More close races, and I think all are under-rated as pick-up chances:

Alaska (Al Gross, 17% chance) https://dralgrossak.com/

Kansas (Barbara Bollier) (21% chance but recent polls are even!) https://bollierforkansas.com/

Alabama (Doug Jones) https://dougjones.com/splash

Texas (MJ Hegar v. Cornyn, 13% chance) https://mjfortexas.com This would be a wonderful upset pick.

A remarkable coincidence emerges when one lines up the timeline of the New York Times’s Trump tax refund bombshell and Trump’s entry into national politics as a Birther. It appears Trump came out as a racist anti-Obama birther and floated the idea of running for president after the Obama IRS audited his 2010 tax refund ($73 million), and at almost the exact same time that the Obama IRS challenged the refund behind the scenes in Congress  in the spring of 2011.

One question is whether Trump’s turn to birtherism in March 2011 was initially an outburst of anger at being audited. Or was it a strategically political move before the news of the audit was public, so that Trump could make it appear that the Obama IRS audit was partisan retribution against a birther enemy? And did his entry into politics and floating the idea of running for president help him to tie up the audit review in Congress so that he could keep the $73 million check?

Running for president would have been a good way to slow down Congress’s review process of large refunds. Aggressively attacking Obama would have been a strategic move to keep the Obama IRS quiet, lest a leak of their audit after March 2011 would make it appear (wrongly) that they were investigating Trump in retribution. If this was Trump’s gambit, it appeared to have worked. And then, perhaps, it unintentionally snowballed over the next six years into Trump becoming a hero to the racist far-right, winning the 2016 nomintion, and winning the White House.

First, here is a timeline/excerpt from the New York Times of Trump’s 2010 refund and IRS audit from the New York Times, and then a timeline of Trump’s emergence as a birther in March 2011:

“[C]onfidential records show that starting in 2010 he claimed, and received, an income tax refund totaling $72.9 million — all the federal income tax he had paid for 2005 through 2008, plus interest.

“The legitimacy of that refund is at the center of the audit battle that he has long been waging, out of public view, with the I.R.S.

“The records that The Times reviewed square with the way Mr. Trump has repeatedly cited, without explanation, an ongoing audit as grounds for refusing to release his tax returns. He alluded to it as recently as July on Fox News, when he told Sean Hannity, “They treat me horribly, the I.R.S., horribly.”

“And while the records do not lay out all the details of the audit, they match his lawyers’ statement during the 2016 campaign that audits of his returns for 2009 and subsequent years remained open, and involved “transactions or activities that were also reported on returns for 2008 and earlier.”

“Mr. Trump harvested that refund bonanza by declaring huge business losses — a total of $1.4 billion from his core businesses for 2008 and 2009 — that tax laws had prevented him from using in prior years.

“…The records reviewed by The Times indicate that Mr. Trump filed for the first of several tranches of his refund several weeks later, in January 2010. That set off what tax professionals refer to as a “quickie refund,” a check processed in 90 days on a tentative basis, pending an audit by the I.R.S.  

“Records show that the results of an audit of Mr. Trump’s refund were sent to the joint committee in the spring of 2011. An agreement was reached in late 2014, the documents indicate, but the audit resumed and grew to include Mr. Trump’s returns for 2010 through 2013.” [END QUOTE]

Now let’s turn to the spring of 2011 in Trump’s political career. The first birther comments I can find are from March 17, 2011, just as he floats the idea of running for president. From Politico on Trump’s appearance on Good Morning America:

Trump seemed to throw his lot in with the discredited rumors that President Obama wasn’t born in America, saying he’s a “little” skeptical of Obama’s citizenship and that every so-called birther who shares the view shouldn’t be so quickly dismissed as an “idiot.” “Growing up no one knew him,” Trump told ABC’s “Good Morning America” during an interview aboard his private plane, Trump Force One. “The whole thing is very strange.” In the wide-ranging interview, Trump said he’s willing to spend up to $600 million on a presidential bid.

CNN then follows with a timeline of Trump’s birtherism escalating in March and April of 2011. On March 23, 2011, on “The View”: “Why doesn’t he show his birth certificate? There’s something on that birth certificate that he doesn’t like.” March 28, 2011, on Fox News: “He’s spent millions of dollars trying to get away from this issue. Millions of dollars in legal fees trying to get away from this issue. And I’ll tell you what, I brought it up, just routinely, and all of a sudden a lot facts are emerging and I’m starting to wonder myself whether or not he was born in this country.”

March 30, 2011, on The Laura Ingraham Show: “He doesn’t have a birth certificate, or if he does, there’s something on that certificate that is very bad for him. Now, somebody told me — and I have no idea if this is bad for him or not, but perhaps it would be — that where it says ‘religion,’ it might have ‘Muslim.’ And if you’re a Muslim, you don’t change your religion, by the way.” April 7, 2011 on NBC’s “Today” show: “I have people that have been studying [Obama’s birth certificate] and they cannot believe what they’re finding … I would like to have him show his birth certificate, and can I be honest with you, I hope he can. Because if he can’t, if he can’t, if he wasn’t born in this country, which is a real possibility … then he has pulled one of the great cons in the history of politics.”

NBC reported that Trump had Michael Cohen working behind the scene with the National Enquirer in 2010 to plan the birther story. Perhaps Trump already knew, after submitting his request for the $73 million refund in January 2010, that an audit was automatic during the next three months (as the NY Times story explains) and he anticipated a political escalation. Or perhaps the Obama IRS had notified Trump that the audit was headed towards a more contested process in Congress.

According to the NY Times, Trump appeared to be financially desperate during the Great Recession of 2008-2009, after massive losses. He was appeared to be in dire need of the $73 million refund, and according to Michael Cohen, Trump knew that the refund was dubious. Cohen, testifying before Congress, “recalled Mr. Trump’s showing him a huge check from the U.S. Treasury some years earlier and musing ‘that he could not believe how stupid the government was for giving someone like him that much money back.’”

Perhaps all of this is just a coincidence.

However, going birther and flirting with a presidential run in 2011 would have been a politically and legally strategic move for a deeply indebted charlatan to hang on to the refund long enough, until another scheme emerged. And perhaps that scheme was a 2016 presidential run and the marketing, media, and foreign support it drew.

Or perhaps it is just as simple as a frightened and financially desperate racist initially having a temper tantrum over an audit by a Black man’s administration. 

Either way, it appears Trump’s fight with the IRS in 2010-2011 may have changed the course of history.

We’ve seen a lot of talk about Roe v. Wade.

Isn’t fetal personhood under the 14th Amendment (meaning that fetuses are recognized as legal persons) and a national total abortion ban at least plausible if Trump wins a second term?

The idea is that anti-abortion activists could seek an injunction against all abortion providers because under the U.S. Constitution, all abortions are murder.

I can imagine three votes for it, maybe four for a national late-term ban based on viability, if Amy Coney Barrett is confirmed. (I’d count Thomas and Alito as the second and third vote, and maybe Gorsuch as four). Imagine if Trump gets to replace one or two of the other Justices in a second term, or even if he loses, a Republican president in 2025-2028 could add a fifth vote.

For the Jewish Women’s Archive (and along with my friends Dahlia Lithwick, Nikki Horberg Decter, and Martha Minow, with thanks to Judith Rosenbaum), here:

It may be hard to remember or imagine, but when I was a college student and a law student in the 1990s, Justice Ruth Bader Ginsburg introduced herself to the world as a moderate incrementalist. We were taught how her groundbreaking litigation strategy, for the ACLU’s Women’s Rights Project which she founded in 1972, succeeded precisely because it was so cautious and incrementalist. Her strategy was first to take men’s cases for sex discrimination: men who were denied benefits that were reserved for women as caregivers or widows, for men who had later drinking ages, men who had mandatory jury duty while women’s jury duty was only voluntary. Between 1973 and 1976, she argued six gender discrimination cases before the Supreme Court, and she won five. She savvily attacked gender stereotypes when they benefited women to lay the constitutional groundwork for challenging all sex stereotypes. It was carefully and quietly brilliant, like her.

After President Carter named her to the DC Court of Appeals, she continued to make her mark as a moderate. In law school, we were taught to appreciate her balance, her moderation, her incrementalism, her view of trusting democracy over judicial activism. As a moderate liberal who shied away from the scary label “feminist” in the “Backlash” 1990s, I appreciated Justice Ginsburg.

But then something happened around 2000. First, Bush v. Gore. She called out the hypocrisy of the Court’s ostensible federalists, who ordinarily defer to state governments, but not here: “Were the other members of this court as mindful as they generally are of our system of dual sovereignty, they would affirm the judgment of the Florida Supreme Court.” While colleagues wrote they dissented “respectfully,” as Ginsburg usually did, too, she concluded with only: “I dissent.”

Then the Court turned further right over the next decade. The quiet and moderate Justice Ginsburg dissented more, and more forcefully and eloquently. There are many examples, but here is my favorite, in arguably the worst decision of the Roberts Court, striking down a key part of the Voting Rights Act of 1965 based on absurd reasoning and remarkable factual and demographic errors: “The sad irony of today’s decision lies in (the court’s) utter failure to grasp why the (law) has proven effective,” Ginsburg wrote. “Throwing out pre-clearance [review of states’ changes by the Department of Justice] when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

The Roberts Court has systematically undermined voting rights, and Ginsburg was right: We are now in a storm of anti-democratic attacks. And it was in this storm that the quiet moderate Justice Ginsburg became the Notorious RBG. I did not always agree with her, but I changed from appreciating her to loving her as a hero. I look back at how I—and many of us—changed along with her, from patient moderates in the 1980s and 1990s to more outspoken, fierce, dissenters and resisters today. In the decades RBG became a feminist icon, I became more proudly a self-identified feminist. On some level, there was a connection. RBG dissented for all of us when she had a voice that many of us felt we had been losing.

The last thing I’ll share is a defense of her retirement timing. Many liberals have criticized her decision not to retire under President Obama while the Democrats had a narrow Senate majority. First, I’d note that few people criticized men on the Court the same age for not retiring, even though women have a longer life expectancy. Second, it’s easy to forget the politics of 2012–2014. President Obama was running for re-election as a cautious moderate, adding names to his judicial shortlist from conservative states and with no record on women’s rights. Ginsburg knew how to recognize such moderation from her own life, and she would have been understandably cautious. The Democrats’ Senate majority remained narrow in 2013–14, and it was apparent that the decisive conservative Democrats wanted a moderate without a clear record on Roe. If Ginsburg cared more about her life’s work, her passion for women’s rights more than simply getting a “Democrat” on the Court, can she really be blamed? But finally, the critique is unfair in a time of partisanship. Yes, conservative Justices have been better, and luckier, at timing their retirements in obviously partisan ways, eroding the legitimacy of the Supreme Court.

One can argue that if she were more partisan, she should have retired earlier. But we should at least take a step back, be as generous to her as she was to all of us with her life of public service, and appreciate that she was more than just a partisan, that she believed her life, the law, and perhaps judicial legitimacy was something bigger than party politics. Maybe she was right, maybe she was wrong, but she was Notoriously, gloriously independent. Thank you, Ruth.

Why you should vote early *in-person*:

The 12th Amendment Nightmare and the Absentee Recount Problem…

My new piece in Time.

I voted early in-person for our primary, and I need to share a surprising bureaucratic problem that confirmed why voting EARLY IN-PERSON is worth the risks this year.

I have voted in every primary and general election, sometimes early, sometimes absentee when I have worked as a poll watcher. When I asked for my ballot, I discovered I was officially an “inactive voter” because I “had not completed the census.”
I defintely filed my federal census online last spring, so I was confused, but the volunteer poll worker couldn’t explain what was going on, and in Covid-19, I was not looking for a long in-person conversation. I just immediately filled out additional paperwork so I could vote.

It turns out that this “inactive” designation was not because of the federal census, but a local census for household/address confirmation, and a state rule that localities can declare you ineligible to vote until you complete it. If I had tried to vote by mail, I suspect my application or my ballot would have been rejected. I have no idea how I or anyone in my position could have fixed this in time. It turns out that many local govts have this rule, but this hasn’t been on anyone’s radar as a widespread problem for mail/absentee voting.

The notion that I was officially an ineligible “inactive voter” would be funny if it weren’t scary.
I am a hyperactive voter.
An obsessive-compulsive voter. I am certain I completed the local census, and almost certain that I put it in the mail on time. But I don’t know anyone who knew that this survey could make you ineligible to vote.

The triple-whammy of Trump sabotaging of the mail, underfunding of the state governments during an economic crisis, and this being a census year could mean disaster.
Vote EARLY IN-Person!
Please share this post with more detail.

Voting in the Mass primary for 4th cong. district to replace Joe Kennedy? Many of us want to make sure recently-Republican Auchincloss doesn’t get the nomination, but the rest of the field is divided among a half-dozen solid candidates.

Recent polling and endorsements show momentum towards Jesse Mermell. A Data for Progress poll last week, w/o leaners:

Auchincloss 12
Mermell 12
Grossman 8
Linos 8
Leckey 7
Khazei 5

Plus endorsements for Mermell from Ayanna Pressley, Maura Healey. I really like Linos, Leckey, and Khazei, too, but Auchincloss should not become a Congressman by switching parties and taking advantage of divided field with a 20% plurality.

Also: Vote Markey.

Markey is an outstanding Senator. There was no reason to challenge him except for dynastic entitlement. My thread here on Kennedy’s answers in 2018 on the war on drugs, defending the criminalization of marijuana so that police have a pretext to search cars. It’s the older candidate who is more in tune with 2020, while the younger candidate is relying on 1960s nostalgia and a dynastic name.

My colleagues Ben Zipursky and Bennett Capers, together with John Goldberg, have an important op-ed in today’s Washington Post:

“How to reform police liability without involving McConnell or Trump”

“Police officers enjoy almost complete immunity from civil suits in federal court. They can shoot someone, taser someone, choke someone, or press their knee into someone’s neck until they can’t breathe. They can brutalize peaceful protesters. And yet, in large part because of the court-made rule of qualified immunity, officers rarely face liability.

“The calls for ending qualified immunity have not gone unheard. The House of Representatives passed a bill that would eliminate it and enable victims to obtain remedies for violations of their civil rights. But Senate Majority Leader Mitch McConnell (R-Ky.) and the Senate have balked at this change, as has President Trump. Likewise, the Supreme Court recently declined to revisit the subject.

“The good news is that changing federal law is not the only way to erase the grave accountability deficit for unlawful police violence. There’s an alternative hiding in plain sight: state law.”

See the rest here.