The Four Horsemen Once Again

This follows up on an earlier post today. Writing in the Washington Post, Neal Katyal and Joshua A. Geitzer address The absurd legal theory conservative judges are using to restrict voting: No, state election laws don’t have to be set by legislatures alone without input from executives or courts. (Mr. Geltzer is a visiting law professor at Georgetown. Mr. Katyal, a former solicitor general, holds an endowed chair at Georgetown Law School.)

Being actual experts on constitutional law, unlike me, and having actually studied the cases with care, they explain with greater precision that I was able to muster

what happened in the [recent] Minnesota, North Carolina and Pennsylvania [electoral] cases. In Minnesota, a state official, relying on explicit authority granted by the state legislature, determined when mail-in ballots must be received this year to comply with the laws of the state. In North Carolina, a state election board figured out how to make sense of various state laws. In Pennsylvania, a state court played that role. In none of these cases did the decider somehow wrest power away from the state legislature as the author of the state’s election laws. In each, it tried to effectuate the legislature’s handiwork, consistent with the state and federal constitutions.

In grade school, children learn that legislatures write the law, executives implement the law and courts interpret the law. To insist that, in the area of election administration alone, state legislatures must do it all themselves fetishizes the words “the Legislature” in the Constitution and strains them beyond recognition — because that’s never what legislatures do. For judges and justices suddenly to claim otherwise isn’t just a bad take on election law, but a bad take on law — period.

Professors Geitzer and Katyal would be subject to professional criticism were they to say in so many words that the Four Horsemen—Alito, Gorsuch, Kavanaugh, and Thomas—are not acting in good faith and that they exhibit shocking intellectual dishonesty.

As a retired lawyer writing anonymously, I will let you in on the secret. The Four Horsemen are not reasoning honestly and in good faith.

The Mayo Clinic Would Like to Share a Suggestion with You …


The Clinic’s statement reads,

Mayo Clinic supports the state of Minnesota’s COVID-19 guidelines, which were put in place to help limit the spread of COVID-19 and protect the public’s health. Preventive measures such as masking, good hand hygiene and social distancing are essential steps to stop the spread of the virus, protect our communities and our neighbors. Community members who choose to attend a large event that exceeds recommended guidelines should contact their healthcare provider and be evaluated for possible COVID-19 testing.

A Golden Thread Runs Through It


Robert Barnes, One theory by one justice binds together Supreme Court’s contradictory election opinions

I have not read the election opinions, and do not propose to do so. Mr. Barnes has done so, and provides a helpful summary. I shall summarize his summary, with some editorial commentary of my own.

There are three positions on the right of the Supreme Court to interfere in how the states run their elections.

The Three Liberal Musketeers

The three remaining liberals on the Court believe that the pandemic requires strong and aggressive measures to protect everyone’s right to vote and, at the same time, to protect their health. Evidently, this is a right they find somewhere in the penumbra of the Constitution. In any event, they believe that aggressive measures are just fine no matter who imposes them—the state legislature, the state courts, or the federal courts.

The Hour Horsemen of the Reactionary Apocalypse

Relying on a clause in the Constitution, and claiming to be strict originalists, these four worthies espouse the view that only the state legislatures control voting rules. This conclusion is based on the purportedly plain meaning of the constitutional text, and has nothing whatsoever to do with the fact that gerrymandered Republican legislatures are trying their best to prevent people from voting and help Orange Man steal the election.

Chief Justice Roberts’ Position

The Chief Justice has espoused a distinct view, namely, that the federal courts should not interfere with state election rules, whether imposed by state legislatures or by state courts.

Because of this distinct position, Republicans have won some of the election cases so far, and Democrats have won some of the cases. Each case has, in effect, been decided by application of the Roberts rule, which no other Supreme Court justice shares, except, possibly, Justice Barrett.

The Justice Amy Coney Barrett Position

No one knows what it will be. No one even knows whether she will vote on election cases to come in November.

Now, I know that some of you are cynical and will say you know exactly and precisely how she will vote. You will anticiopate that she will surely side with the Four Horsemen, sideline the Chief Justice, and hand the election to Trump if she is able to do so. And you may well be right. But you might be wrong, too. Because embracing the Justice Roberts position would do wonders for her image with the majority of our population. And for other related reasons as well.

Additional Editorial Commentary: Some Bedrock Principles

As the Four Horsemen like to remind us, Article I, Section 4 of the Constitution provides in part as follows: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof[.]”

The Four Horsemen want to read between the lines, construing the constitutional text to imply, “and therefore a state supreme court has no power to limit what a state legislature decides about election rules, even if the state supreme court thinks the legislature is acting contrary to the state constitution.”

But this strange interpretation is compelled neither by the words of the constitutional text, nor by the tenets of American jurisprudence, nor by common sense.

Moreover, it’s universally recognized that a state supreme court is the final arbiter of what state law, including the state constitution, means. Decisions on these matters are not within the purview of the federal courts, including the Supreme Court.

As a qualification: if a state supreme court decides that its state’s laws or constitution mean something that is forbidden by the United States Constitution, then of course the U.S. Constitution prevails. But that principle is not implicated by the current electoral cases. Even Justice Kavanaugh does not think the U.S. Constitution governs how many days the vote counters in Pennsylvania may take to count the votes. He just wants to declare—without any reasonable basis—that the Pennsylvania Supreme Court may not weigh in on the issue.

I smell something, and it is not perfume.

Thursday Evening Update,


Corresponding figures for some other states, also from

  • Florida, Biden + 2.2
  • Georgia, Biden + 1.6
  • North Carolina, Biden + 2.0

in 2016, there were 47 million early or mail-in votes. In 2020, as of ths afternoon, with several more days to go, the corresponding number is about 80 million. Moreover,

In 20 states that report party registration data, 18.2 million registered Democrats have already voted, compared with 11.5 million Republicans and 8.8 million with no party affiliation. The data does not show for whom the votes were cast.

In 2016, Trump got 46.1 percent of the total vote. But third parties played a significant role that year. Thus, a more relevant data point is that, in 2016, Trump received 48.9 percent of all voters who voted for one of the two principal candidates—while Clinton, obviously, garnered the other 51.1 percent of that universe.

Trump voters in 2016 numbered just short of 63 million. With a much higher turnout expected in 2020—many are projecting about 150 million—Trump would have to find 73.4 million voters this year to win a comparable share of the electorate, and thus to have a good shot at winning the Electoral College.

To perform equally well in 2020, Trump would have to receive the votes of everybody who voted for him in 2016, plus another 10.4 million new Trump voters.

Whatever these hypothetical 10.4 million new Trump voters have been doing in the last week or so, it’s pretty clear that they haven’t been showing up at the polls.

Maybe they are the proverbial shy Trump voters—and have been thus far been way too timid to show their faces.


Those German Have a Word for Everything

The Associated Press reports,

MADISON, Wis. (AP) — Hackers stole $2.3 million from the Wisconsin Republican Party’s account that was being used to help reelect President Donald Trump in the key battleground state, the party’s chairman told The Associated Press on Thursday.

The party noticed the suspicious activity on Oct. 22 and contacted the FBI on Friday, said Republican Party Chairman Andrew Hitt.

Hitt said the FBI is investigating. FBI spokesman Leonard Peace did not immediately return a message seeking comment.

“There’s no doubt RPW is now at a disadvantage with that money being gone,” Hitt said. The party and campaign needs money late in the race to make quick decisions, he said.

Hitt said the hackers were able to manipulate invoices from four vendors who were being paid to send out direct mail for Trump’s reelection efforts and to provide pro-Trump material such as hats that could be handed out to supporters. Invoices were altered so when the party paid them, the money went to the hackers instead of the vendors, Hitt said.

Hitt said it appears the attack began as a phishing attempt.

Just Keep Driving, Orange Man, Just Keep on Driving

I enjoyed Alexandra Petri’s column yesterday. It begins this way:

“By the way, nice trucks. You think I could hop into one of them and drive it away. I’d love to just drive the hell out of here. Just get the hell out of this. I had such a good life. My life was great.” 

He got into the truck. He was always getting into trucks and pretending to drive them and at first he only pretended to drive but then he thought why should I only pretend to drive, why shouldn’t I just drive, just get the hell out of this, and he twisted the key in the ignition and suddenly he was going.

The crowd in the rearview mirror got smaller and smaller until it was only about the size the media was always saying it was, not the size he knew it to be, and then it disappeared altogether. He was in his truck and he was driving down the highway. He was getting the hell out of this and going back to his good life, waiting for him somewhere at the end of the road.

If interested, check on the whole thing for yourself.

And, by the way, the views of sardonic columnists aside, I still think that, when he loses, he’s just going to ge the hell out of Dodge.

But not before a few really harsh tweets about the faithlessness of the rubes, who voted for him, but just not in large enough numbers.

Further Enumeration of the Embryonic Poultry

One can only count so many unhatched chickens in one day, and I feel I have just about reached my daily limit. That said, early voting—and, most especially, early voting by young people—appears to be playing a vital role in this election. So … if you would like to count some more fetal chicks today, please check out these sources, and count them for yourself:

NBC News, Young voters in swing states are a big part of the early surge. That could boost Biden.

U.S. Election Project, Early Voting Continues at a Record Pace

George Will also has a few astringent observations to share with you as well, including a reference to Vachel Lindsay’s poetic observations on the record-shattering election of 1900. His poem is called “Bryan, Bryan, Bryan, Bryan,” and you are welcome to read it here.

From the Cook Political Report’s Lips to God’s Ears

Cook Political Report, Biden’s Path to 270 Widens, Trump’s Path Narrows, as Texas Moves to Toss Up:

Less than a week out from Election Day and President Donald Trump is playing catch-up. In 2016, he won 30 states (and Maine’s 2nd Congressional District) and their 306 electoral votes. Today, just 20 states, worth 125 electoral votes, are safely in his column. Former Vice President Joe Biden is holding 24 states worth 290 electoral votes in his column. 

To win the election, Trump will need to win every state we currently have in the Toss Up column: FloridaGeorgiaNorth CarolinaIowaOhioMaine’s 2nd CD, as well as the newest addition, Texas. Even then, Trump would be 22 electoral votes short of 270. He would need to win at least two of the seven states currently sitting in Lean Democrat: ArizonaMichiganMinnesotaWisconsinPennsylvaniaArizonaNevada and New Hampshire. Trump carried all but MinnesotaNevada and New Hampshire in 2016.

At this point, Ohio and Maine’s 2nd District are probably the most promising for Trump, followed by Texas and Iowa. If he were to win all of those, he’d be at 188 electoral votes, still 82 votes shy of 270. FloridaGeorgia, and North Carolina are pure Toss Ups with Biden ahead by anywhere from 1 to 2 points in those states. 

Even if Trump were to win all of those states, he’d then need to move into the Lean Democratic territory where ArizonaWisconsin and Pennsylvania offer the best opportunities. If you just looked at polling averages, Arizona would be the best opportunity for Trump. Biden has a small — but steady — 3 point lead. Even so, given Trump’s unpopularity among suburban voters, it’s hard to see how he makes up needed ground in Maricopa (Phoenix). …

In Pennsylvania, the conventional wisdom, as well as the Trump campaign, see a tightening race. The FiveThirtyEight polling average puts Biden ahead by 5 points. But, congressional district polling paints a different — and more difficult — picture for the president. These polls find Biden expanding Clinton’s margins in suburban Philadelphia, but also find Trump failing to put up the same kind of numbers he did in 2016 in central, western and northeastern Pennsylvania. …

Texas is a state that Biden doesn’t need to win, but it is clear that it’s more competitive than ever. Texas’ shift from Lean Republican to Toss Up shouldn’t come as a surprise. Recent polling in the state — both public and private – shows a 2-4 point race. That’s pretty much in line with the hotly contested 2018 Senate race in the state where Sen. Ted Cruz narrowly defeated Rep. Beto O’Rourke 51 percent to 48 percent. 

A huge surge in early vote (as of October 26th, almost half of Texas’ registered voters had already cast a ballot) suggests that we could see record turnout in a state that has added many new residents since 2016. That also adds a level of uncertainty to the equation. 

Statewide and district level polling show Biden running strong in and around metro suburban parts of the state, but underperforming with Latino voters. 

One Week to Go—Here’s the Scoop on Early Voting Data, as of This Morning

To put the following information in perspective: the total number of votes cast in 2016 was about 129 million. To be precise, 128,838,342.

Moreover, generally speaking, the higher the turnout, the more accurate the pre-election polls turn out to be.

With these thoughts in mind, here is how matters stand as of an hour ago, according to NPR:

With one week still remaining until Election Day, Americans have already cast a record-breaking 66 million early ballots, putting the 2020 election on track for historic levels of voter turnout.

That’s some 19 million more pre-election votes than were cast in the 2016 election, according to the U.S. Elections Project, a turnout-tracking database run by University of Florida professor Michael McDonald.

McDonald calculates that nationally, voters have cast more than 48% of the total votes counted in the 2016 election. 

“We continue to pile on votes at a record pace. We’ve already passed any raw number of early votes in any prior election in U.S. history,” McDonald told NPR on Monday.

“It’s good news, because we were very much concerned about how it would be possible to conduct an election during a pandemic,” he said, citing concerns that mail-in ballots would be returned by voters en masse at the conclusion of the early voting period, overwhelming election officials. “Instead, what appears to be happening is people are voting earlier and spreading out the workload for election officials.”

In 2019, McDonald predicted that 150 million people would vote in 2020’s general election, which would be a turnout rate of about 65% — the highest since 1908.

But he’s going back to the drawing board. 

“I have increasingly been confident that 150 [million] is probably a lowball estimate,” he said Monday. “I think by the end of the week I’ll be upping that forecast.”