A Lingering Question from the 2020 Election

Why didn’t Democrats do better in House and Senate races last year, given that Biden got seven million more votes than the other guy.

First, the House of Representatives. There were roughly 156 million votes for either Biden or his Republican opponent. Biden’s share of that 156 million was 52.3%. Meanwhile, Democrats got 51.5% of all the votes cast in House races and, as a result, 51.5% of seats in the House. If they had gotten Biden’s percentage instead of 51.5%, they would have done better, but not much better. Instead of 224 seats out of 435, they might have gotten 227 or 228. That wouldn’t have been a big difference. The House vote pretty accurately tracked the presidential vote.

One reason the Democrats’ House vote fell slightly short might be that five million voters didn’t bother voting for a House candidate — maybe more of those lazy, uninformed or cynical voters were Democrats. Another reason, no doubt more likely, may be that Biden’s opponent was especially unpopular. More than a few people who usually vote Republican couldn’t bring themselves to vote for their party’s presidential candidate, even though they were willing to vote for his supporters in Congress.

The Senate was a different story. Because senators serve for six years, only one-third of Senate seats are contested in any given election. In 2020, thirty-four states had Senate elections. For no reason except that it was their turn, twenty-two of those thirty-four states had Republican senators. Only twelve had Democrats.

Since states generally elect their senators with large majorities — incumbent senators often win 60% or more of the vote — you’d expect Republican presidential candidates to do extraordinarily well in states with Republican senators. That’s exactly what happened in this election. The Republican presidential candidate got 57% of the vote in states that elected Republican senators, compared to 47% in the country as a whole.

Even so, Democrats ended up winning Senate seats in fourteen of the thirty-four states, adding two states to their total. Precisely those fourteen states of the thirty-four also went for Biden.

So the Democratic presidential candidate won 52.3% of the votes cast for either him or the Republican [not for a 3rd party candidate]; Democrats running for House seats did only slightly worse; and Democrats running for the Senate picked up a few seats, despite the fact that two-thirds of the states with Senate elections usually vote for Republicans.

If there’s an anomaly here, it’s that almost half of the electorate voted for a terrible president and disgusting human being, while also voting for congressional candidates who’d support him every step of the way.

One other statistic is worth noting. Biden got 49.6% of the vote in the thirty-four states with Senate elections, even though two-thirds of those states preferred his opponent. How did he get almost half the votes in thirty-four states if two-thirds of those states voted for the other guy? The reason is that Democratic states have larger populations.

Among the thirty-four states, the average Democratic state had 3.6 million voters. The average Republican state had only 1.8 million. Because each states has two senators without respect to population, the 40 million voters in the twenty-two Republican states are represented by forty-four senators. The 43 million voters in the twelve Democratic states only have twenty-four senators.

The men who wrote the Constitution made the US Senate a bastion of minority rule. The Senate filibuster adds insult to injury by requiring sixty votes out of one-hundred to get much done. There is no justification for giving a minority of senators so much power in a legislative body that already gives disproportionate power to America’s smallest states.

They Should Be Talking About the Coup Memo

Stephen Colbert, Jimmy Kimmel and Seth Meyers had something in common this week. They mentioned a memo given to our former president showing how he could try to stay in office after losing the election. The news divisions of ABC, CBS, NBC and of course Fox didn’t mention it at all. Reporters for The New York Times only got around to mentioning it yesterday in the final paragraphs of a story about the Arizona “audit” fiasco.

From Tim Murphy of Mother Jones:

There was big news this week on what is known ominously and euphemistically as “the democracy beat,” and like all such news, it was bad.

On Tuesday, CNN published a two-page memo written by a lawyer for then-President D____ T____’s re-election campaign during the run-up to the January 6 certification of the Electoral College results. In six concise bullet-points, the memo outlined a process by which Vice President Mike Pence could use his powers on January 6 to throw out the electors from seven states that President Joe Biden won in the 2020 election. The plan counted on Republicans in those states to submit competing sets of electors, based on the false and fabricated premise that T____ had somehow won those states.

The memo’s author, John Eastman, is a lawyer—at the time, he was even a tenured professor at Chapman University School of Law—but what he created is not a legal document. It is by its nature extra-legal: It is a blueprint for a coup.

Eastman anticipated the possibility that some people would be mad. “Howls, of course, from the Democrats,” he predicted in bullet-point four, immediately following the line, “Pence then gavels President T____ as re-elected.” Yeah, man, no kidding.

It is a little weird to read all these months later about something that was also plain as day at the time. Thursday marked the one-year anniversary of a Barton Gellman article in The Atlantic that laid out the strategy that T____, with Eastman and others’ help, would pursue. Mother Jones and others covered closely the efforts from the T____ campaign to throw out votes in courts and disenfranchise entire states. . . .  January 6 happened on live TV. But what was described on those couple of pages is what all the stunts and subterfuge were building up to—notes, as it were, on a criminal fucking conspiracy.

There have not been a lot of attempts to depose elected American presidents in my lifetime, though I’m only 34. Not knowing for sure what happens when you dissociate “peaceful transfer of power” from “a society entirely predicated on it,” I sort of think this is a pretty big deal. This is a break-the-glass moment, as some have said, only someone else already broke the glass and took the axe and is running around with it.

But it is not such a big deal, apparently, if you watch network TV news. On Wednesday, Media Matters’ Matt Gertz reported that the total number of minutes devoted to the story on either the morning or evening editions of ABC, NBC, or CBS News in the first two days after the memo was published was zero. “In fact,” Gertz wrote, “the only national network broadcasts to mention T____’s coup memo were the late-night variety shows hosted by Jimmy Kimmel, Stephen Colbert, and Seth Meyers.”

Americans get their news from lots of places, including from Late Night shows. And the networks are, broadly, still covering the aftermath of the January 6 insurrection, including the latest moves by the House Select Committee to subpoena former top T____ aides. But the network TV news shutout on the Eastman memo does speak to a reluctance to directly engage with this new political reality.

. . . There is something about the specific pitch of the threat that perhaps strains the capacity of some institutions to process. They’re not programmed to take on problems like this—it disturbs the comfortable equilibrium that defines a lot of political media. Republicans come on to speak to one side of things, and Democrats come on (slightly less often) to speak to the other side of things, and there are arguments, and sometimes people win and sometimes people lose. But there is always, basically, a sense that everyone is sort of acting within the constraints of the same known universe. There are scandals, too. (In fact, that universe thrives on scandal!) But those scandals never really veer into the realm of the existential. 

But what happened at the close of T____’s presidency, and seems likely to happen again if we continue mostly ignoring it, is an existential problem. There’s no equilibrium here. A majority of Republican members of Congress supported an effort to overturn the election. They’re almost all still in office. A majority of the country’s Republican attorneys general backed that same plan. . . . They’re all still in power as well. . . . The people who thought that the biggest problem with January 6 was that the game wasn’t fixed sooner are strengthening their grip on the GOP and on institutions of state and local government, and everyone else with a future in the party is getting out of their way.

The day of the insurrection at the Capitol, I remember thinking—naively but in my defense very angrily—that there might even be expulsions from Congress as a result, that those complicit would have to pay. I might feel better now if anyone had. But while there were howls, of course, from Democrats, such chatter quickly died down on Capitol Hill. The only people who have suffered any recriminations are the Republicans in Congress who, however belatedly, stood up to all this. Last week, Indiana Rep. Anthony Gonzalez, one of just 10 House Republicans to support impeaching the president for inciting the insurrection, announced his retirement, citing the “toxic dynamics” within his party. Gonzalez’s personal security budget had gone up since the vote, and he was being challenged by a former T____ aide, Max Miller. The ex-president had already come to the district to campaign against him.

This is all an enormous crisis of legitimacy for a large swath of government at many different levels, which means it’s an enormous challenge for political media and everyone else. I don’t really know how we get out of it. But I guess I’d start with acknowledging the fact that the axe is missing.

The Plan to Steal the 2020 Election

The House of Representatives has a committee that’s begun investigating the January 6th attack on the Capitol. So far they haven’t begun sharing the results of their investigation. I hope they focus just as much on what didn’t involve any violence at all. The president and his co-conspirators had a step-by-step plan to steal the election. That’s deserving of much more attention than it’s received so far.

From Jamelle Bouie of The New York Times:

. . . As the full picture of Jan. 6 begins to come into view, I think we should consider it a kind of revolution or, at least, the very beginning of one. Joe Biden ultimately became president, but D____ T____’s fight to keep himself in office against the will of the voters has upturned the political order. The plot itself shows us how.

T____, we know, urged Mike Pence to reject the votes of the Electoral College, with the mob outside as the stick that would compel his obedience. “You can either go down in history as a patriot,” T____ told Pence, as recounted in this newspaper, “or you can go down in history as a pussy.”

When this was first revealed, I assumed that T____ simply wanted Pence to do whatever it would take to keep himself in power. But this week we learned that he had an actual plan in mind, devised by John Eastman, a prominent conservative lawyer who worked with the former president to challenge the election results, a job that included a speaking slot at the rally on the National Mall that preceded the attack on the Capitol.

“We know there was fraud,” Eastman said to the crowd that would become a mob. “We know that dead people voted.”

“All we are demanding of Vice President Pence,” he continued, “is this afternoon at 1 o’clock, to let the legislatures of the states look into this so we get to the bottom of it and the American people know whether we have control of the direction of our government or not!”

These weren’t just the ravings of a partisan. Eastman was essentially summarizing the contents of a memo he had written on T____’s behalf, describing the steps Pence would take to overturn the election in T____’s favor.

First, as presiding officer of the joint session in which Congress certifies the election, Pence would open and count the ballots. When he reached Arizona, Pence would then announce that he had “multiple slates of electors” and would defer his decision on those votes until he finished counting the other states. He would make this announcement for six other swing states — including Georgia, Michigan, Pennsylvania and Wisconsin — before announcing that “there are no electors that can be deemed validly appointed in those States” on account of election disputes and accusations of fraud.

At this point, Eastman explained, Pence could declare T____ re-elected, because — with seven states removed from the count — the president would have a majority of whatever electors were left, and the 12th Amendment states that the “person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed.”

If, for some reason, this didn’t fly, Eastman went on, Pence could then say that no candidate had won a majority and thus the election must go to the House of Representatives, where each state has a single vote and Republicans controlled a slim majority of state delegations, 26 to 24. If Democratic objections led both houses of Congress to split into their separate chambers to resolve the dispute, then Republicans could obstruct the process in the Senate and create a stalemate that would allow Republican-controlled state legislatures “to formally support the alternate slate of electors.”

As for the courts? Eastman argued that they don’t matter. “The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter.” If Pence has the power, then Pence should act and “let the other side challenge his actions in court.”

Eastman’s confidence throughout this memo (he dismisses potential Democratic objections as “howls”) belies his shoddy legal, political and constitutional thinking. For one, his argument rests on an expansive reading of the Twelfth Amendment for which there is no precedent or justification. The vice president has never directly counted electoral votes. “Beginning in 1793, and in every presidential election since,” the legal scholar Derek Muller notes in a piece debunking key claims in the memo for the website Election Law Blog, “the Senate and the House have appointed ‘tellers’ to count the electoral votes. These tellers actually tally the votes and deliver the totals to the President of the Senate, who reads the totals aloud before the two houses after the tellers, acting on behalf of Congress, have ‘ascertained’ the vote totals.”

The 12th Amendment, ratified in 1804, codified that practice into the Constitution. Congress would do the counting, and the vice president would simply preside over the process.

Eastman also asserted that the vice president could disregard the procedure specified under the Electoral Count Act because the law itself is unconstitutional. That, Muller notes, is controversial (and something Eastman himself rejected in 2000, in testimony before the Florida Legislature during the dispute between George W. Bush and Al Gore). And even if it were true, the 117th Congress, on its first day in operation, Jan. 3, adopted the provisions of the law as its rule for counting electoral votes, which is to say Pence had no choice but to follow them. His hands were tied.

Which gets to the politics of this scheme. If Pence were to disregard the rules and the history and seize control of the counting process, House Speaker Nancy Pelosi would presumably have suspended the joint session, which relies on the consent of both chambers of Congress. “With a stalled and incomplete count because of a standoff between Pence and Pelosi,” the legal scholar Ned Foley writes in a separate Election Law Blog post, “the Twentieth Amendment becomes the relevant constitutional provision.” Meaning, in short, that at noon on Jan. 20, Pelosi would become acting president of the United States. Pence would lose authority as vice president (and president of the Senate) and the joint session would resume, with Congress putting its stamp of approval on Biden’s victory. . . . 

None of this should make you feel good or cause you to breathe a sigh of relief. Consider what we know. A prominent, respected member in good standing of the conservative legal establishment — Eastman is enrolled in the Federalist Society and clerked for Supreme Court Justice Clarence Thomas — schemed with the president and his allies in the Republican Party to overturn the election and overthrow American democracy under the Constitution. Yes, they failed to keep T____ in office, but they successfully turned the pro forma electoral counting process into an occasion for real political struggle.

It was always possible, theoretically, to manipulate the rules to seize power from the voters. Now, it’s a live option. And with the right pieces in place, T____ could succeed. All he needs is a rival slate of electoral votes from contested states, state officials and state legislatures willing to intervene on his behalf, a supportive Republican majority in either house of Congress, and a sufficiently pliant Supreme Court majority.

As it happens, T____ may well run for president in 2024 (he is already amassing a sizable war chest) with exactly that board in play. Republican state legislatures in states like Georgia and Arizona have, for example, used claims of fraud to seize control of key areas of election administration. Likewise, according to Reuters, 10 of the 15 declared Republican candidates for secretary of state in five swing states — Arizona, Georgia, Wisconsin, Michigan and Nevada — have either declared the 2020 election stolen or demanded that authorities invalidate the results in their states. It is also not unlikely that a Republican Party with pro-T____ zealots at its helm wins Congress in November of next year and holds it through the presidential election and into 2025.

If T____ is, once again, on the ballot, then the election might turn on the manipulation of a ceremony that was, until now, a mere formality.

. . .  If this happens, it would be a revolutionary change. In this world, the voters, as filtered through the Electoral College, no longer choose the president. It becomes less a question of the rule of law and more one of power, of who holds the right positions at the right time, and especially, of who can bring the military to their side.

On Jan. 20, Joe Biden became president and D____ T____ slunk off to Mar-a-Lago to lick his wounds. But the country did not actually return to normalcy. Jan. 6 closed the door on one era of American politics and opened the door to another, where constitutional democracy itself is at stake.

There are things we can do to protect ourselves — legal experts have urged Congress to revise the Electoral Count Act to close off any Eastman-esque shenanigans — but it is clear, for now at least, that the main threat to the security and stability of the United States is coming from inside the house.

Unquote.

Yet, almost ten months later, there is no indication that the Department of Justice is interested in January’s attempt to steal the election non-violently. Nor have congressional Democrats all agreed on a plan to stop Republican politicians from using their official positions to steal future elections.

Bad News and Possible Good News

The bad news isn’t actually news, but it’s good news that more people are finally admitting how bad it is. From Charles Pierce of Esquire:

Call me the Wet Blanket of the Gods, but I despair of ever making common cause with people who volunteer to live in Bedlam. From IPSOS:

. . . 56% of Republicans believe the election was rigged or the result of illegal voting, and 53% think [X] is the actual President, not Joe Biden.

There is no longer any reason to try to “understand” these people. Nor should there be any compunction about doing whatever we can to read them out of American politics, because they clearly have opted out on their own. They should be considered anathema, as should the entire Republican Party and the modern conservative movement that animates it.

Anything that can be done without including them should be done for the good—to say nothing of the sanity—of the country. Raw political power should be used to push through whatever of this administration’s policy priorities can be passed without any Republican help whatsoever. Majoritarianism should be invoked without mercy, and by whatever legitimate means necessary, and the window of opportunity to do that is closing fast.

It doesn’t matter if 53 percent of them say they believe the former president* is still the president* because they actually believe it, or they say it because it makes them one of The Elect. The effect on democracy is the same. They are poison in the bloodstream. And they’re proud of it.

Only 30% of Republicans feel confident that absentee or mail-in ballots were accurately counted . . . As a result, 87% of Republicans believe it is important that the government place new limits on voting to protect elections from fraud. Finally, 63% percent of Republicans think [X] should run for President again in 2024 . . . 

This is beyond the beyond. There is no compromise with this. There is no common ground. There is no deal to be struck. Millions of our fellow citizens are lost in rebellion against reality, and the only solution for the common good is to isolate them from decision-making and hope enough of them find their way back to make the country governable again. I’m not optimistic.

Unquote.

Today it was announced that the Manhattan district attorney has convened a grand jury to look at possible criminal behavior by the former president, his associates or his company. It’s unlikely the grand jury will indict anybody soon, but it’s a good development. Maybe he’ll have to run for president from jail.

And some observers think it’s becoming more likely the Senate filibuster’s stranglehold on progress will be loosened. From David Atkins of Washington Monthly:

The pressure to end the filibuster is getting strong enough you can feel all way from Arizona to West Virginia. But this time the impetus isn’t coming from outside activists or anti-gerrymandering and vote suppression reformers: it’s coming from inexorable forces within Congress itself.

A series of crucial votes looms in the near future, and it’s not clear that the internal calculus of Republican senators in the [X] era can permit a compromise with Democrats. Even less can Democrats permit an entire year and a half of legislative stalemate that not only threatens to derail democracy but would functionally disable the basic functions of government.

The immediate triggers for all this are 1) the imperiled January 6th Commission; 2) the debt ceiling fight; and 3) rising awareness that if nothing is done to curtail it, Republicans will simply rig elections in their favor and even refuse to certify their defeat even if they do lose their own rigged game. . . . 

The hostility of Senate Republicans toward accepting even the basic premises of a bipartisan commission to examine the January 6th insurrection on the Capitol has pulled a wet blanket over the hopes of optimists seeking to avoid partisan entrenchment. It is possible that Republicans are simply using hardball negotiating tactics and will eventually . . .  strike an agreement. But it’s unlikely. . . . 

Democrats, meanwhile, cannot afford not to investigate it. It was the most damaging assault on the foundations of American democracy since the Civil War, and members of Congress themselves were just minutes from potentially being murdered by the right-wing mob. Pressure will mount considerably to push the Democratic senators still defending the filibuster (most notably Arizona Senator Kyrsten Sinema and West Virginia Senator Joe Manchin) to change their stance if Republicans refuse to come to the table . . . 

But an even bigger battle looms ahead of the commission. As Dave Dayen notes at The American Prospect, Republicans in Congress are even likelier than they were in the Obama Administration to hold the government hostage over the debt limit–thereby threatening the full faith and credit of the United States Treasury. Democrats, for their part, are far less inclined to lend credibility to conservative crocodile tears about deficits or hamstring their own ability to help people or craft policy. . . . 

Ryan Grim is confident enough in this trajectory to predict that this is how the filibuster goes down. Grim believes that the debt ceiling will be the cue to enter Act II of Adam Jentleson’s speculative timeline for the end of the filibuster in his book Kill Switch: the flash point that will turn Manchin’s and Sinema’s Mom-and-apple-pie defenses of the filibuster into regretful reforms. There is good reason believe this analysis is correct. . . .

A President, a Poet and Poor Deluded Souls

Joe Biden gave an excellent speech at his inauguration. But as somebody said on Twitter:

Well that’s it. The ceremony is over and Amanda Gorman is now the president.

Gorman is from Los Angeles, is 22 years old and is America’s first National Youth Poet Laureate. She spoke for six minutes and made a huge impression. You can read read her poem, “The Hill We Climb”, but it’s better to see and hear her recite it:

Poet Amanda Gorman reads ‘The Hill We Climb’ – YouTube

Here’s something else that happened. The New York Times reported that QAnon believers are  “struggling with the inauguration”:

Followers of QAnon, the pro-Txxxx conspiracy theory, have spent weeks anticipating that Wednesday would be the “Great Awakening” — a day, long foretold in QAnon prophecy, when top Democrats would be arrested for running a global sex trafficking ring and President Txxxx would seize a second term in office.

But as President Biden took office and Mr. Txxxx landed in Florida, with no mass arrests in sight, some believers struggled to harmonize the falsehoods with the inauguration on their TVs.

Some QAnon believers tried to rejigger their theories to accommodate a transfer of power to Mr. Biden. Several large QAnon groups discussed on Wednesday the possibility that they had been wrong about Mr. Biden, and that the incoming president was actually part of Mr. Txxxx’s effort to take down the global cabal.

“The more I think about it, I do think it’s very possible that Biden will be the one who pulls the trigger,” one account wrote in a QAnon channel on the messaging app Telegram.

Others expressed anger with QAnon influencers who had told believers to expect a dramatic culmination on Inauguration Day.

“A lot of YouTube journalists have just lost one hell of a lot of credibility,” wrote a commenter in one QAnon chat room.

Still others attempted to shift the goal posts, and simply told their fellow “anons” to hang on and wait for future, unspecified developments.

“Don’t worry about what happens at 12 p.m.,” wrote one QAnon influencer. “Watch what happens after that.”

And some appeared to realize that they’d been duped.

“It’s over,” one QAnon chat room participant wrote, just after Mr. Biden’s swearing-in.

“Wake up,” another wrote. “We’ve been had.”

Followers hoping for guidance from “Q,” the pseudonymous message board user whose posts power the movement, were bound to be disappointed. The account has been silent for weeks, and had not posted Wednesday.

Ron Watkins, a major QAnon booster whom some have suspected of being “Q” himself, posted a note of resignation on his Telegram channel on Wednesday afternoon.

“We have a new president sworn in and it is our responsibility as citizens to respect the Constitution,” he wrote. “As we enter into the next administration please remember all the friends and happy memories we made together over the past few years.”

Unquote.

Wow. If more of the previous president’s supporters realize they’ve been had — and more of their leaders admit President Biden won a fair election — there may be blue skies ahead.