Joshua Holland

Pitbulls used to be considered the perfect 'nanny dogs' for children - until the media turned them into monsters

For most of the 114 years since the American pitbull terrier was first recognized by the United Kennel Club, the breed was rightly seen as the perfect “nanny dog” for children because of its friendly nature, loyalty and stability. As the ASPCA notes, the pitbulls were “once considered especially non-aggressive to people.”

Today, as any owner of a “pitbull-type” dog* can attest, parents often recoil in horror when they spot one of these animals, pulling their children close as if to protect them from a marauding werewolf. Fanciful myths about the breed abound, and some public officials have compared their bites to those of sharks and tigers.

Since the 1980s, the media have falsely portrayed the pitbull as a bloodthirsty monster, inherently more dangerous than other strong breeds of dog. There is absolutely no factual basis for that narrative, but it's led to a vicious cycle in which people who want a badass dog to fight, or to guard property, or to intimidate rival gangs tend to choose pitbulls (or Rottweilers, another much-maligned breed). Pitbulls are the dog of choice for irresponsible breeders, dog-fighters, people who want a tough-looking dog to tie up in their yard and those who refuse to have their male dogs fixed because they think those big, swinging balls makes them look tough by proxy ( 86 percent of fatal canine attacks involve an unneutered male, according to the American Humane Society).

A 2009 study in the Journal of Forensic Science found that the owners of vicious dogs, regardless of the breed, had “significantly more criminal behaviors than other dog owners.” The researchers added that “vicious dog owners were higher in sensation seeking and primary psychopathy,” and concluded that “vicious dog ownership may be a simple marker of broader social deviance.” And according to the ASPCA, “Pit Bulls often attract the worst kind of dog owners.”

All of those human failings lead to poorly socialized and potentially aggressive dogs. It is because pitbulls are disproportionately favored by these kinds of owners that they're responsible for a statistically outsized share of serious attacks on humans. These incidents are then reported – and very often misreported – with breathless sensationalism by the media, and the cycle continues.

Meanwhile, advocates say that pitbulls are the most frequently abused, tortured, abandoned and euthanized breed of dog in the United States. Shelters across the country are overflowing with pitbull mixes. Because of their stigma, they're often difficult to adopt out; a ride to the shelter is almost always a one-way trip for pitties.

We have tragically betrayed our children's beloved nanny-dogs, raising them irresponsibly, training them to be aggressive and then turning them into pariahs when they behave as any dog would in similar circumstances.

The facts

According to the American Veterinary Medicine Association, “controlled studies have not identified this breed group as disproportionately dangerous.” The American Temperance Testing Society (ATTS) puts thousands of dogs – purebreds and spayed and neutered mixed-breeds – through their paces each year. The dogs are tested for skittishness, aggression and their ability to differentiate between threatening and non-threatening humans. Among all of the breeds ATTS tested – over 30,000 dogs through May 2011 -- 83 percent passed the test. How did pitbulls do? They showed an above average temperament, with 86 percent making the grade. Pitbulls are the second most tolerant breed tested by ATTS, after only golden retreivers.

Pitbulls do not have special “locking jaws” – that's pure mythology. They don't demonstrate some sort of special shaking action when they bite – all dogs display similar biting behavior. Pitbulls do not exert an unusual amount of bite-force for their size. Multiple studies have found that bite force correlates to body-weight, and tests of three breeds conducted by National Geographic found that the American pitbull terrier exerted less bite-force than German shepherds or Rottweilers.

While they have been a favorite of dog-fighters for a century, pitbulls weren't originally bred for fighting. According to the United Kennel Club, sometime in the 19th century European breeders began crossing various terriers with bulldogs in search of a breed that had the former's enthusiasm and the latter's stamina and strength. The pitbull breeds that resulted were then imported and embraced “as catch dogs for semi-wild cattle and hogs, to hunt, to drive livestock, and as family companions.” (UKC also notes that pitbulls “have always been noted for their love of children,” but aren't “the best choice for a guard dog since they are extremely friendly, even with strangers.”)

Pitbulls are among dozens of strong, muscular breeds of canine. All are capable of doing damage to humans if they're not properly socialized and supervised. Most dogs do not, even when they've been neglected or abused. None are inherently monstrous – they are all just dogs. And we know what makes dogs of any breed more likely to be aggressive.

Karen Delise, research director for the National Canine Research Council and author of The Pitbull Placebo, has investigated hundreds of serious dogbite incidents in depth. As she explains, "My study of dog bite-related fatalities occurring over the past five decades has identified the poor ownership/management practices involved in the overwhelming majority of these incidents: owners obtaining dogs, and maintaining them as resident dogs outside of regular, positive human interaction, often for negative functions (i.e. guarding/protection, fighting, intimidation/status); owners failing to humanely contain, control and maintain their dogs (chained dogs, loose roaming dogs, cases of abuse/neglect); owners failing to knowledgably supervise interaction between children and dogs; and owners failing to spay or neuter dogs not used for competition, show, or in a responsible breeding program."

There are a tiny number of attacks that simply can't be explained. Occasionally, a well-raised, beloved pet without a history of behavioral issues will hurt a human – dogs are animals, after all – but these incidents are incredibly rare.

Pitbull takes its turn as media's monster dog

The pitbull is not the first dog to be seen as inherently dangerous. The media seem to feed off the idea of monster dogs -- it makes great copy.

As Karen Delise details in her book, in the 19th century, bloodhounds were believed to be inherently vicious, having a taste for human blood. “Eventually,” she writes, “these bloodhounds fell from view, and we pushed other dogs into the spotlight, including the German Shepherd dog and the Doberman Pinscher.” (Dobermans were widely believed to have abnormally small brains, turning them into mindless killers, but this, like the pitbull's “locking jaws,” was simply a myth.) Other breeds that have haunted the popular imagination in the past include mastiffs and Newfoundlands. In Canada, Siberian huskies have often played the role of killer-hound.

Delise, who reviewed news accounts of fatal dog attacks going back more than 100 years, also noted a shift in the way media report these incidents. Fifty years ago, she writes, dogs were “portrayed as sentient beings that reacted to pain, discomfort, or fear. Additionally, many reports of dog attacks conveyed the understanding that aggression was a natural and expected behavior of dogs in certain circumstances. Owners and/or victims were often identified in news reports as exhibiting behaviors (intentionally or unintentionally) that caused the dog to attack.”

That kind of understanding has since been replaced by an almost-singleminded focus on the breed of dogs that turn violent, stripped of any larger context.

Breed misidentification plays a significant role in the stigma attached to pitbulls. It's difficult even for experts to properly identify a breed of dog. A study published in the Journal of Applied Animal Welfare Science ( $) found that "87.5% of the dogs identified by an adoption agency as having specific breeds in their ancestry did not have all of those breeds detected by DNA analysis.”

That problem is compounded by media sensationalism. Karen Delise studied every fatal dog bite reported in the years between 2002-2005, and found that “eleven dogs involved in fatal attacks with no Pitbull characteristics were counted as Pitbulls, while their 'true' breeds were not reported, and three dogs that were clearly not Rottweilers were identified as Rottweilers." That was among a total of 47 fatal attacks (by all breeds) reported during that period.

This dog was involved in a fatal attack and the media called it a pitbull, but according to Delise, this dog was reported as a pitbull despite the fact that animal control officers told reporters that she was in fact a Labrador mix.

This kind of misidentification creates a feedback loop, as most studies of fatal attacks rely on media reports for breed identification.

The media's role in amplifying the public's fear of pitbull-type dogs was evident in a study conducted by the National Canine Research Council in 2008. When an Arizona woman was killed by one or more dogs identified as Labrador retrievers, one local newspaper reported the story. But that same year, when a California man was killed by one or more pitbulls, the incident was reported “by at least 285 media outlets, both nationally (in 47 U.S. states) and internationally (in eight other countries). MSNBC, Forbes, USA Today, Fox News, CBS News, and ABC News all picked up the story.”

And when an infant in New Jersey was reportedly killed by a Siberian husky, around a dozen local news outlets reported the tragic incident, according to the study. But when another infant was killed by what authorities described as a pitbull in Nevada the same month, it was reported by over 200 media outlets around the world, often with the word “pitbull” in the headlines. Like shark attacks, our perception of the risk associated with these dogs has a lot to do with this kind of sensationalism.

Dog racism

Some people are understandably offended when the demonization of pitbulls is compared with bigotry against ethnic minorities, but there's one aspect of the analogy that is just too apt to ignore.

Pitbulls are disproportionately involved in serious attacks on humans, just as African Americans are found guilty of a disproportionate number of crimes in the United States. That's simply what the raw data say.

Most people consider the claim that blacks are inherently more criminal than whites, based on that raw data, to be pretty darn racist as it ignores the social, economic and legal context of crime and instead ascribes it to some imagined genetic or cultural flaw among African Americans.

And yet, when you strip away the overt falsehoods about pitbulls – those locking jaws and shark-like bites – the raw statistics, stripped of social context, is the entirety of the case against these animals (made even worse by the unreliable nature of data based on media-reported breeds in attacks).

So when Matt Drudge hypes stories of “packs” of black youths rampaging in America's streets, he's rightly called out for race-baiting. But when sex advice columnist Dan Savage, who writes numerous posts about pitbulls behaving badly with titles like, “Pit Bulls Should be Boiled Alive like Lobsters and Fed to Their Idiot Owners,” and compares these domesticated canines with wild tigers, he's doing the exact same thing as Drudge. (Worse, Savage doesn't appear to make any effort to confirm that the dogs implicated in the stories he promotes are actually pitbulls.)

Only a monster could support breed-specific bans

A number of municipalities have enacted breed-specific legislation (BSL), in some cases banning “pitbull-type" dogs (and/ or Rottweilers and other large breeds), and in others requiring that they be spayed or neutered, or imposing special restrictions on their housing.

These laws have been proven ineffective for the rather obvious reason that they fundamentally misdiagnose the causes of serious dog-bites, focusing on breeds rather than the interactions of dogs and humans. There are numerous studies showing that BSL laws don't result in any decrease whatsoever in serious dog bites (see here, here and here, and a summary of several others here).

According to the ASPCA, "There is no evidence that breed-specific laws—which are costly and difficult to enforce—make communities safer for people or companion animals. For example, Prince George’s County, MD, spends more than $250,000 annually to enforce its ban on Pit Bulls. In 2003, a study conducted by the county on the ban’s effectiveness noted that “public safety is not improved as a result of [the ban],” and that “there is no transgression committed by owner or animal that is not covered by another, non-breed specific portion of the Animal Control Code (i.e., vicious animal, nuisance animal, leash laws).”

Following a thorough study of human fatalities resulting from dog bites, the United States Centers for Disease Control (CDC) decided not to support BSL. The CDC cited, among other problems, the inaccuracy of dog bite data and the difficulty in identifying dog breeds (especially true of mixed-breed dogs). The CDC also noted the likelihood that as certain breeds are regulated, those who exploit dogs by making them aggressive will replace them with other, unregulated breeds."

The term “breed specific legislation” is inaccurate. All sorts of dogs get caught up in the tangle of BSL laws because the definition of a “pitbull-type” dog is subjective. Denver's infamous pitbull ban, for example, defines it as “an American Pit Bull Terrier, American Staffordshire Terrier, Staffordshire Bull Terrier, or any dog displaying the majority of physical traits of any one (1) or more of the above breeds, or any dog exhibiting those distinguishing characteristics.”

What, exactly, are those physical traits? In the study cited above showing that adoption agencies frequently misidentify canine breeds, the authors conclude, “The discrepancies between opinions of adoption agencies and identification by DNA analysis suggest that it would be worthwhile to reevaluate the reliability of breed identification as well as the justification of current public and private policies pertaining to specific dog breeds.”

But the problems with BSL laws go way beyond their ineffectiveness at reducing serious dog-bites. All BSL laws, even those that stop short of outright bans, result in beloved family pets with no history of behavioral problems being destroyed. Simply put, these are monstrous laws.

There are better alternatives. San Francisco (which has a dumb law requiring that only “pitbull-type” dogs be neutered), has a “ bad dog court.” When a complaint is filed about an allegedly vicious dog, the animal and his or her owner has a right to a hearing where they can present exculpatory evidence. The dog court can order truly dangerous animals to be euthanized, but frequently the sentences include things like mandating that owners fix a fence or muzzle their dogs in public.

The good news

Fortunately, attitudes are beginning to change as good humans rally around these wonderful, loyal dogs' defense. Actor Linda Blair is best known for her role in the The Exorcist, but she now devotes her time to rescuing pitbulls and other unwanted dogs. Shows like "The Dog Whisperer,” which features superstar trainer Cesar Millan, whose personal dogs (“Daddy,” and then “Junior”) were pitbulls with calm temperaments and a lot of patience with smaller dogs, and “Pit Boss” a reality series that follows Luigi “Shorty” Rossi, a little person who rescues pitbulls that are often bigger than him – help.

The fact that we now have an abundance of data showing that banning certain breeds of dog does nothing to decrease the number of serious dog bites helps as well. But really, public opinion is shifting because the case against pitbulls – like bloodhounds or Dobermans before them – was built on a shaky foundation of myths and media hype.

They're just dogs.

* “Pitbull” is not a breed. It's a term for a variety of breeds, including the American pitbull terrier, the American Staffordshire terrier, the Staffordshire bull terrier and mixes of those dogs. “Pitbull-type dog” is basically meaningless – they're dogs with various phenotypical traits that subjectively fit the label.

Rudy's Keystone Coup would be hilarious if it weren't tearing the country apart

ABCreports that Rudy Giuliani and Trump campaign legal adviser Jenna Ellis are attempting to pull off a crackpot coup d'etat within Donald Trump's crackpot coup d'etat. (An observer on Twitter called it a "coupducken.")

As President Donald Trump's legal efforts challenging the election results continue to hit dead ends, his campaign and legal teams have descended into chaos behind the scenes as many brace for the end of the post-election fight, multiple sources tell ABC News.

Over the weekend, Giuliani and his own team of lawyers, which also includes Trump campaign legal adviser Jenna Ellis, attempted what was described to ABC News as an internal campaign "coup"— an attempt to wrestle power away from the current longstanding Trump campaign leadership by claiming the president had given them full control moving forward, multiple sources said.

Giuliani's team has taken over office space in the Trump campaign's Arlington, Virginia, headquarters and Ellis, who White House aides have previously expressed concern about, began telling Trump campaign staffers they now report to her.

Ellis told the remaining campaign staff that they should only follow orders from people named "Rudy or Jenna" and to ignore any other directives from campaign leadership, sources familiar with the episode said.

The directive sparked outrage from senior campaign aides including Trump campaign manager Bill Stepien and senior adviser Jason Miller, sources said.

The attempted power grab hit a boiling point on Saturday when Miller, who's been the campaign's chief strategist for months, and Ellis got into what sources said was a "screaming match" in front of other staffers. They both threatened to call the president to settle who he wanted to be in charge, sources said. At one point, Miller berated Ellis and called her "crazy," multiple sources said.

This is a very odd time for anyone who is alarmed and appalled by Trump's relentless attempts to undermine the results of the election and also has a sense of humor.

On the one hand, a number of polls his week have found that a clear majority of Republicans believe Trump's outlandish claims that the election was stolen from him through widespread but unspecified fraud. The GOP is not only assailing our democratic institutions, they're also preemptively delegitimizing Joe Biden's presidency and teeing up a new, more conspiratorial tea party movement. Angry Trumpers rampaged through the nation's capital last week, assaulting counter-protesters. A terrorist plot to shoot up a ballot processing center was foiled just in the nick of time. Georgia's Republican Secretary of State is getting death threats from people within his own party. And Republican elected officials are urging GOP-run state legislatures to disenfranchise their own voters and send Trump Electors to the Electoral College despite Biden winning their states. None of this is remotely funny.

But at the same time, Rudy Giuliani--and the few remaining lawyers willing to work with him--have provided some of the most side-splitting comic relief since Joe Pesci's character in Lethal Weapon. There are a few Hollywood writers gifted enough to come up with that press conference in the parking lot of Four Seasons Seasons Total Landscaping but situating it between a crematorium and a skeevy sex shop was such a deft touch.

Crossover episodes usually seem forced, but bringing Borat into this mess may have been the best mashup since the classic two-part pairing of The Simpsons and Family Guy.

And then Rudy got into a courtroom as an attorney for the first time in three decades and it...did not go well.

Throughout the five-hour hearing in federal court in Williamsport, Pa., Giuliani — a former U.S. attorney and mayor of New York — came under heavy criticism from opposing counsel and appeared unable to answer several questions from [U.S. District Judge Matthew] Brann about legal technicalities.
Brann asked what standard of review he should apply in the case. "I think the normal one," Giuliani replied.
"Maybe I don't understand what you mean by strict scrutiny," Giuliani said at another point.

At a different moment, Giuliani said: "I'm not quite sure what 'opacity' means. It probably means you can see."

The judge responded: "It means you can't."

After arguing that Democrats had perpetrated one of the greatest crimes in history--a case of "widespread nationwide voter fraud" and "an egregious violation, a planned violation"--Rudy was "unable to provide evidence of any fraud, and said later under questioning from Brann that the lawsuit did not allege fraud as a matter of law and that 'this is not a fraud case.'"

Rudy was compelled to beclown himself after a number of white shoe law firms bailed on the effort. It should come as little surprise with lawyering of this quality that the Trump campaign has filed 26 lawsuits and seen all but one laughed out of court.

Again, it's an odd time. We know this hamfisted coup attempt is failing spectacularly, its perpetrators are comical and yet they are laying siege to this 230-year-old democracy. For four years, I have tried without much success to popularize a portmanteau, "hilarifying," to describe the simultaneously hilarious and terrifying crackpot authoritarianism that has marked the Trump era, and this has been a perfect example.

Did Democrats really 'underperform' down-ballot?

The conventional wisdom often coalesces quickly around under examined assumptions, and once it does it can be tough to dislodge. At present, pretty much everyone across the political spectrum shares the belief that Democrats under-performed in House and state legislative races, taking some of the shine off of their victory over Donald Trump at the top of the ticket, but is that really true?

It's certainly the case that they fell far short of expectations, but the problem is that those expectations were mostly shaped by polling, and we know that the polling--especially at the congressional district level--was very, very far off this year. At present, progressives and moderates are trading recriminations based on the assumption that their party failed in some demonstrable way, but if the polling was way off, maybe they performed as well as they should have given the circumstances.

In a normal election, this would be an answerable question. The key context here is that 2020 followed a huge "blue wave" in 2018. Dems netted 40 House seats and over 300 seats in state legislatures, many of which were highly competitive or even Republican-leaning. That provided lots of low-hanging fruit for Republicans, who enjoyed record-setting turnout like their Democratic counterparts. There was clearly some ticket-splitting, with disaffected Republicans voting for Biden at the top of the ticket and GOP candidates further down. We know the incumbent had a 44.6 percent approval rating in FiveThirtyEight'saverage on the day of the election, the challenger was viewed favorably by about the same number who viewed him unfavorably and that a majority of Americans said they were better off prior to the election than they were four years ago. In theory, one could plug these data into a model without the flawed head-to-head polls and come up with some estimate of what should have been expected in these circumstances.

But that wouldn't work for 2020 because there really wasn't any historical precedent for this election. The 1918 pandemic was over by the spring of 1920. We've never had a figure like Donald Trump occupying the White House. And his approval ratings were uniquely over the course of his presidency, seemingly insulated from events. This has always been a problem for numbers-crunchers and pundits alike this cycle.

One likely explanation for the polls being so far off is that 2020 saw the greatest turnout in the past 120 years, and pollsters' likely voter models didn't reflect that degree of enthusiasm on both sides. Biden led Trump by around 8.5 points in FiveThirtyEight's final polling average, and he is currently ahead in the popular vote by fewer than three percentage points. That margin will grow to maybe four or five points as the rest of the ballots are tallied, and I suspect that Democrats probably fared as well as they might have been expected to against an incumbent who trailed by four or five points in the national polls with a majority saying they were better off than they had been four years earlier.

This is not to suggest that the consequences of Democrats falling short of the expectations set by those lofty polls aren't disastrous. They are. But the finger-pointing probably isn't justified, nor is the narrative that they "lost" the election. It's hard to imagine that Biden's outreach to Republicans or activists' calls to defund the police had much impact on this race, given the unique circumstances in which it was run.

The one decision that one could second-guess would be Democrats' decision to limit canvassing because of the Coronavirus. In hindsight, that looks like a mistake. But in the end, the pandemic, like the faulty polling, was something beyond the party's control.

The GOP's formula for destruction is back in play — here's how Democrats can beat it

The broad contours of the next two years of American politics are pretty clear. They're going to suck for the left. And things could get worse after that. But there is hope.

The GOP's nonsensical claims that widespread voter fraud denied Trump a second term represent Birtherism 2.0. They can't claim that a white guy from Scranton who's been a prominent figure in DC for the past 40 years was born in Kenya, but for the 86 percent of Trump voters who believe that Joe Biden did not legitimately win the 2020 election, the effect is the same. This belief will animate the next, more extreme iteration of the tea party movement. In fact, some of the Republican operatives organizing these "stop the steal" protests are veterans of that Astroturf campaign.

If Democrats manage the difficult task of sweeping runoff elections for two Georgia Senate seats in January, they will be constrained by the filibuster. Sen. Joe Manchin (D-WV) has already signaled that he would not support eliminating it. Others would no doubt join him if they weren't the deciding vote.

If, as is likely, Republicans hold onto the Senate, Majority Leader Mitch McConnell will follow the playbook he developed during the Obama years, refusing to bring bills with bipartisan support to the floor and blockading Biden's judicial nominees. Either way, requiring 60 votes to pass legislature will be the norm.

Given that the pandemic is now completely out of control, McConnell would probably have no choice but to negotiate a bipartisan Covid relief and economic stimulus package, assuming one doesn't pass before the inauguration. Aside from that, Democrats would only be able to make progress through executive actions and during "fiscal cliff" negotiations over must-pass bills to keep the government operating or avoid a debt default. If Dems manage to win control of the Senate, they would also be able to do certain things--like rolling back the Trump tax cuts--through budget reconciliation, which can't be filibustered.

The executive branch wields a lot of power, and with control of the House, Democrats would be able to achieve smaller parts of their agenda. And competent government will be like a breath of fresh air after the past four years. But the party's base wants them to govern. They want a new voting rights act and an expansion of public healthcare and aggressive climate legislation, among other priorities. None of that will be possible, and Democrats--especially progressives--will find themselves frustrated.

This is the formula Republicans developed during Obama's presidency: Demoralize the Democratic base while firing theirs up with a steady stream of disinformation about the administration. With the Democrats' typical decline in turnout for the midterms, the GOP will try to deliver the kind of electoral shellacking in 2022 that they achieved in 2010.

Because they did well in state legislative races this year, Republicans will also have an opportunity to redraw congressional maps in a bunch of states and strengthen the gerrymanders they put in place after the 2010 Census. If the GOP can hold the Senate and claw back control of the House, 2023 and 2024 will be even more disheartening.

But that bleak outcome isn't a foregone conclusion. Dems could govern if they start organizing now, keep their base engaged and break that cycle of turning out for presidential elections and then sitting out the midterms. They have a good Senate map in 2022, and if they ended up with 52 or 53 Senate seats, after two more years of relentless Republican obstruction, they would almost certainly have the votes to kill the filibuster.

There is one reason to think this may be possible: Donald J. Trump. First, because Trump has driven huge Democratic turnout in the 2018 midterms, the 2020 election and in off-year contests in 2017 and 2019. Voting tends to be habit-forming. And whether or not Trump is serious about declaring that he intends to run in 2024, he will remain a loud, obnoxious presence in American politics. It's possible that by remaining the clear leader of the Republican Party, he will help Democrats remain engaged, while at least some of the irregular Republican voters he turned out will stay home if he isn't on the ballot himself. There is reason to be hopeful.

But while the feeling of relief that most Americans are feeling after delivering a defeat to Donald Trump was nice, it will be short-lived. It was a major battle in a longer war. The next engagement will be in Georgia, and then the (broad) left must start organizing for 2022. Thanks to the many veto-points built into our system, progress is never easy.

We're witnessing the birth of a dangerous new strain in the right-wing movement

Donald Trump has a lottery ticket's chance of overturning Joe Biden's decisive victory in the 2020 election. There's no evidence of fraud that would hold up in a court of law. Biden's margins are beyond what might be reversed in recounts. And while the Constitution gives states the power to determine how their electors are selected, all states have laws on their books awarding them to the popular vote winner (aside from a few congressional districts in Nebraska and Maine).

Given that Trump is using these bogus claims of a stolen election to shake down his followers in order to pay off campaign debt and fund his new PAC, some have questioned how dangerous his refusal to accept the results really is. Perhaps he's working toward acceptance, or keeping his base engaged for two upcoming Senate runoffs in Georgia that will determine control of the chamber next year. According to reports, many elected Republicans who back his silly claims are only doing so to humor him, and to avoid the wrath of his cult-like supporters, and privately acknowledged that the election is over. "What is the downside for humoring him for this little bit of time?" one senior Republican official toldThe Washington Post. "No one seriously thinks the results will change."

But this is ultimately a distinction without a difference. The GOP is delegitimizing the Biden presidency so they can launch a new, meaner and more conspiratorial Tea Party movement. Republican operatives, including some veterans of the first Tea Party groups, are behind the "stop the steal" protests now underway across the country. A new poll conducted by YouGov for The Economist found that 86 percent of Trump voters believe that Biden did not win the election fairly, and a plurality of all voters said they thought there was enough voter fraud to swing the results of the race.

Meanwhile, Trump has decapitated the senior civilian leadership of the Pentagon and much of the intelligence community and replaced them with Trump loyalists, many of whom are conspiratorial nutjobs. We don't know towards what end, but it is a brazenly authoritarian move that's inconsistent with the idea that he's just trying to keep donors' dollars flowing.

By following Trump's lead, Republicans are guaranteeing that Joe Biden will be dogged by a new sort of Birther movement. Whether intentionally or not, they are encouraging more political violence from the far-right. They're making the country ungovernable, and that is effectively a soft coup.

Here are 3 key reasons Democrats were caught off guard in 2020 (and why all the finger-pointing is wrong)

It will take some time before all of the votes are counted, the last races are called and we have a granular view of what happened up and down the ballot in the 2020 election. We know Democrats won by a significant margin at the top of the ticket, while underperforming expectations in House races and state legislative contests.

There are three likely reasons for this that should be fairly obvious. First, since the earliest days of the Covid-19 pandemic, Trump set the tone for his party by insisting that the media and Democrats were exaggerating the severity of the crisis in order to hurt him politically, and urged Americans to reopen businesses and schools and act as if these are normal times. The impact of that strategic choice has been catastrophic, but it most likely benefited Republicans in one specific way: They had a robust ground game, knocking on tens of millions of doors while Democrats relied on virtual canvassing and limited personal contacts. That disparity didn't matter much for the top of the ticket in an election that was always going to be a referendum on Trump, but many voters don't know much about their local races and those conversations with canvassers can be key to getting them engaged further down the ballot.

Second, this was a very high-turnout election for both sides, and it followed a massive Democratic wave in 2018. Democrats netted 40 house seats and 309 state legislative seats during the midterms, which left them defending a significant number of purple or reddish seats with freshmen lawmakers. That provided a lot of pickup opportunities for Republicans. As of this writing, most of the half-dozen House seats they have so far flipped were in exactly these kinds of districts. If Biden had won the national popular vote by 8 points, as the polling averages suggested, Dems probably would have expanded their margin in the House and done well in those state legislative races. In the end, he'll probably end up winning it by 4 or 5 points so some of those low-hanging fruit were bound to fall.

Finally, while Never-Trump Republicans didn't materialize in the kinds of numbers that would have given Dems a landslide, there were major campaigns to get them to support Biden. It doesn't take a huge number of disaffected Republicans voting for Biden--or for a third party or write-in--while voting for Republicans for Congress and in state legislative races to create the kind of split between Biden's performance and that of candidates further down the ballot that's emerging now.

And as Eric Levitz argued, Biden probably was denied that 8-point win at least in part because the CARES Act pumped tons of money into the economy--with $600 per week enhanced unemployment benefits and $1,200 stimulus checks going to millions of households--and as a result, a majority of Americans thought they were better off financially than they were four years ago.

I'm fairly confident that this analysis will hold up well as we get more detailed data, but it is deeply problematic in the sense that it means that those down-ballot results weren't the fault of wild-eyed leftists, the neoliberal Democratic establishment or anyone in between. That poses a problem for a certain contingent of very online people who have set their factional differences aside for the past six months to beat Trump and are now itching for a fight. And it's a big problem for outlets like The Hill, Axios and Politico that leverage intra-coalition tensions on both the left and the right for scoops and web-traffic.

So Abigail Spanberger, a vulnerable Democrat who narrowly held onto her seat and has a penchant for punching left, blasted the progressive wing, blaming a GOP attack ad accusing her of wanting to defund the police for her close win and angrily condemning some on the left for identifying as socialists. Whatever one thinks of these rhetorical issues, the fact is that Democrats did not run on defunding the police--that is an ask made by activists--and Republicans have been calling even the most centrist Democrats "socialists" for as long as anyone can remember. As I wrote last week, the conservative disinformation machine is a problem for leftists, liberals and centrists alike.

Rep. Alexandria Ocasio Cortez fired back, arguing that the Democratic Party lacks "core competencies" when it comes to organizing and running campaigns, and tended to blame progressives for their own ineptitude. I'm sympathetic to these arguments but they elide the party's real problems--gerrymandered districts, a malapportioned Senate and an opposition that embraces pernicious conspiracy theories and has worked hard to insulate itself from democratic accountability by suppressing votes and packing the courts.

Others jumped at rumors that Joe Biden might appoint various Republicans to his cabinet, and revived old grievances about the Biden campaign reaching out to Republicans and stiff-arming progressives.

Meanwhile, just as in 2018, as more votes are counted and more races are called, it's starting to look like Democrats' down-ballot losses won't be as bad as they appeared at first blush.

Intra-party debates can be salutary. But in this case, Democrats and progressives' enthusiasm for forming a circular firing squad appears to be blinding them to the fairly clear factors that led them to underperform relative to the top of their tiocket.

Gloomy Democrats could be headed for a blowout victory

At The Daily Beast, Molly Jong-Fast writes about feeling discontent about her party's likely defeat of Donald Trump. "Liberals like myself wanted a decisive victory against Trump," she writes. "We wanted to show the rest of the world that America wasn't a country of racist idiots. We wanted to strike a blow against the stupidity. We wanted to send a message that Trumpism was a fluke, that we were Obama's America, not Trump's. But Trumpism was not repudiated."

This feeling is understandable. For weeks, we heard talk of 400-Electoral College vote blowouts and debated whether we should expand the courts and add new states. Those were heady days, and a sense of let-down was inevitable as we anxiously watch the votes come in. Sometimes, a decent movie comes out with so much hype surrounding it that when you finally get around to seeing it you think it sucks.

But I'm reminded of the days following the 2018 midterms, when early returns suggested that the Democrats had barely eked out a win. As one Pennsylvania newspaper described it a week later, "a highly-anticipated Democratic Blue Wave trickled ashore, disappointing everyone." It took a couple more weeks before we knew that the Democrats had in fact won by the biggest margin in a midterm election in US history.

This year, we won't get the historic, Reagan-vs-Mondale landslide that many of us had hoped for. We're way too polarized for that at this point. Dems will lose a handful of House seats, in part because that 2018 wave brought them a number of wins in reddish districts that were ripe for the GOP to flip back. They disappointed in state legislative races as well.

But if a thorough repudiation of Donald Trump is the standard, then things are looking pretty good as of this writing. Nate Silver projects that Joe Biden will win the popular vote by a margin of around seven million. He's held all of the states Clinton won four years ago and has so far flipped at least three states that Trump won in 2016 (Fox News and the Associated Press have called a fourth, Arizona, for Biden while other media organizations have it as too close to call). Biden looks very likely to win Pennsylvania, looks good in Georgia and is holding a small lead in Nevada, which is counting slowly. If he holds on to win all of those states where he's favored and manages to eke out a win in North Carolina, where Trump holds a lead, he'll end up at 321 Electoral College votes. Without North Carolina, he'd end up at 306.

And let me pause here to just emphasize that at this moment, it looks very good for a Democrat in Arizona andGeorgia. Arizona has gone for Democrats in one election (1996) since 1952; Georgia has voted Democratic three times since 1964, but two of those wins were for a Jimmy Carter, a Georgia peanut farmer.

And while Mitch McConnell is likely to be the Senate Majority leader when the next Congress is sworn in, which would be a nightmare, that body is still in play. In the deep-red state of Alabama, Republicans ran a dopey college football coach who wasn't a sexual predator and easily won back Sen. Doug Jones's seat as expected. But Democrats flipped seats in Colorado and Arizona and North Carolina is too close to call. At present, it looks likely that both Georgia seats will head for a runoff on January 5--twin contests that would no doubt be flooded with cash and activism. That would be a heavy lift, but perhaps fresh off of flipping the state and with Trump still in office throwing temper tantrums but not on the ballot himself, Dems would have a slight advantage. Their candidates are both strong.

The necessary caveats here are obvious. Things could go Trump's way in a couple of the uncalled states. His team is flooding the zone with lawsuits. Republicans could easily hold Democrats to picking up just one net seat in the Senate. But if conservatives, who believe they're always winning when they aren't being cheated, were in liberals' position, they'd be elated.

Democratic infighting over a tight race is missing the biggest problems in 2020

As of this writing, Joe Biden appears to be on track to become the 46th President of the United States, but the resounding rejection of Trump and Trumpism that many had hoped for didn't materialize. The Democrats underperformed expectations even more in down-ballot races.

Even in victory, one of the most predictable outcomes has come to pass: the fragile unity that held together the factions of the Democratic coalition for the past year has been broken. The left is blaming Democrats for nominating a moderate, for their messaging and their ground game. They claim that the party moved to the right to appeal to disaffected Republicans that ultimately proved ephemeral at the cost of revving up their base. Moderates blame the left for identifying as socialists--arguing that it hurt the party among Florida Hispanics--for mocking the "wine moms" of "the resistance" and echoing conservative narratives that paint the Democrats as a party of out-of-touch elitists who have abandoned the working class. Both camps have other grievances as well.

While there may be a kernel of truth to some of these arguments, I don't want to engage in that debate now because it just elides our real problems.

The first is the Electoral College and a malapportioned Senate. We have known with near-certainty since the beginning of this race that Joe Biden would win millions of more votes than Donald Trump, and that has come to pass. The Senate is still technically in play, but the most likely result will be that Democrats fall a seat or two short of making Mitch McConnell Minority leader. And those Democratic Senators in the minority will have won millions of more votes than the Republican Senate caucus.

But the more serious problem for centrists, liberals and the left is the right's sprawling disinformation complex. Fox News, America's top-rated cable network, is the jewel of the crown, but Sinclair Broadcasting dominates local TV markets, OANN and conservative talk-radio is even more unhinged and right-wing websites proliferate like mushrooms after a rainfall. Facebook's gameable algorithms result in Ben Shapiro, Dan Bongino and other far-right talking-heads having the most widely-shared content on the platform almost every day.

Racism and partisanship are a helluva drug, but those who get their information from these sources are also fed an alternative view of reality day in and day out. As a result, tens of millions of Americans (mostly white Americans) believe that hordes of antifa are burning down American cities on behalf of a Democratic Party that advocates Venezuela-style socialism (even when they nominate a well-known moderate like Joe Biden), abortion on demand until moments before birth and wants to repeal the Second Amendment and abolish Christmas. They think the center-left Democrats want to tax them to death--working people, not the wealthy--regulate businesses out of existence and criminalize non-conformity. During elections, they disseminate a gusher of outrageous lies and doctored images and videos too voluminous for fact-checkers to even hope to keep up with.

I have long advocated for the Democratic Party to move left because I believe that progressive policies deliver material benefits to working people, but I have no illusions that embracing a superior agenda--whether that means tacking to the left or to the center--or simply honing their messages can overcome this.

It is difficult to see a solution. Everything but fighting words is protected speech. There is a lot more progressive media infrastructure today than when I got into this business a couple of years after the 2000 election, but a massive asymmetry remains. Conservatives, convinced that the legacy media are hopelessly biased against them, have invested untold dollars in media over several decades.

We can get some satisfaction at pointing fingers at each other--and intra-coalition debates are certainly necessary--but the real barriers to progress aren't a creation of either moderates or the left.

The most stressful election of our lifetime

The 2020 election has proven to be the stress-test for American democracy that we expected. Donald Trump has been a historically unpopular president. According to FiveThirtyEight, the approval rating of every president since Eisenhower sank underwater—with more people disapproving of their job in office than approving—at some point in their first term, but Trump was the only one in modern history to do so within his first three weeks in office. The next fastest to hit that mark was Bill Clinton in his fifth month. Clinton rebounded and enjoyed positive ratings for most of his presidency. Trump remained around ten points underwater throughout his first term.

But partisanship is a powerful force, and he closed that gap by several points in the final days of the race. There is some evidence that late-deciders may have broken for him as they did in 2016, although they were fewer in number. And what matters is who votes, and whose votes are counted. Biden may have enjoyed the largest, most stable lead of any challenger in the modern polling era, but as Tuesday turned into Wednesday, we still don't have a winner.

As of this writing, Trump is overperforming his poll numbers, and doing better than expected among Hispanic voters. Biden is doing significantly better among educated suburban whites than Hillary Clinton did four years ago. As a result, both candidates have a couple of paths to victory. The election probably won't be decided for days.

The resounding rejection of Trump and his movement that many Democrats had hoped for won't come to pass. The maps people shared on social media with Biden winning a 400-Electoral College blowout proved to be wishful thinking. It appears that Trump juiced both bases' turnout numbers.

But the numbers crunchers warned us that we might see a "red mirage" on Election Night, with Trump jumping out to a lead that then shifts toward Democrats as tens of millions of absentee ballots are counted. The crucial Rust Belt states that propelled Trump to victory last time—Pennsylvania, Michigan and Wisconsin—all report Election Day ballots first, and then tally mail ballots.

Trump's plan to eke out another term despite being historically unpopular has been clear for some time. He demonized mail-in balloting so Republicans would be less likely to rely on it. His hand-picked Post Master general bogged down the mail, causing ballots to arrive late. And a herd of Republican lawyers will challenge late ballots, and any ballots collected via special accommodations for the pandemic. Late Tuesday night, Pennsylvania Republicans filed a lawsuit seeking to stop election officials from "curing" deficient ballots.

Democrats made a concerted effort to get their voters to send in their absentee ballots early. While Republicans painted a dark picture of roving gangs of antifa destroying the suburbs during their convention, Democrats devoted quite a bit of time to explaining the importance of voting early. The mechanics of voting has been a central focus of their communications strategy since. After Republicans successfully sued to have so-called "naked ballots"—absentees that weren't enclosed in a security envelope--rejected in the crucial swing-state of Pennsylvania, left-leaning celebrities stripped down to the buff in a series of videos explaining how to avoid the problem. Democrats were encouraged to read instructions and follow them carefully.

They appear to have had some success. In Florida, at least, Democratic voters were more likely than their Republican counterparts to return mail ballots early. As Nate Silver noted, Democrats had a 23-point advantage in absentee ballots that arrived before October 31, but a 7-point lead in those that arrived in the final days before the election.

Voters crossed their Ts. The New York Timesreported that "with many voters casting their first absentee ballots, experts feared a wave of disqualifying mistakes," but "with absentee ballots flooding election offices nationwide, the officials processing them are tentatively reporting some surprising news: The share of ballots being rejected because of flawed signatures and other errors appears lower — sometimes much lower — than in the past."

The press has been all over the Postal Service, cataloguing complaints from letter carriers, tracking backlogs and reporting on sorting machines being taken out of service. Democratic Reps. Ted Lieu and Hakeem Jeffries warned Post Master General Louis DeJoy that it's a felony "to intentionally slow the mail to affect a federal election" and asking the FBI to investigate his actions.

On Tuesday, District Court Judge Emmet Sullivan ordered the postal service to sweep all mail processing facilities in trouble areas of Pennsylvania, Michigan, Colorado, Wyoming, Georgia, Texas, Florida and Arizona to "ensure that no ballots have been held up and that any identified ballots are immediately sent out for delivery." DeJoy violated the order, but according to reports, the Postal Service, under pressure, did scramble to deliver as many votes as possible. (A hearing about DeJoy's failure to heed the order is scheduled for Wednesday.)

We don't know if that was enough. We also don't know if Trump will declare victory. But as we wait for the counts to be completed, we can expect every possible vote to be litigated. Both sides have assembled large legal teams, and may fight it out for several days, or longer.

So now we wait. In a country racked with illness and economic pain and divided like it hasn't been since the Civil War, this may or may not be the most important election of our lifetimes, but it is certainly the most stressful.

Five ways that Trump could transform American democracy for the better (seriously)

Donald Trump has more than fulfilled one campaign promise: Throughout his presidency, he has been the disruptive force he said he would be in 2016.

For the most part, we focus on the ways that his chaotic presidency has undermined American democracy by running roughshod over the norms that made it work, more or less, for over 200 years. He's politicized the Department of Justice and other federal agencies, violated the Emoluments Clause and The Hatch Act with impunity and showed unprecedented contempt for Congressional oversight of the executive branch.

One plausible result is that Trump's authoritarianism--and white nationalism--will be embraced by his entire party, the remaining moderates will flee and the GOP will become even more reactionary. With a judiciary packed with partisan judges and a media apparatus providing their base an endless supply of bogeymen to battle, Republicans could abandon even the pretense of competing in a democracy. The left might react in kind, and the country could be ripped apart. It's a dark possibility--one of several.

But there are other, more hopeful outcomes that might follow the kind of shock to the political system that we've seen over the past four years. Here are a few potential unintended consequences of Trump's rise to power that might be beneficial over the long run.

Voting is a habit

In 2018, half of all eligible voters voted in the midterms. That may not sound like much, but it was the highest turnout rate for a non-presidential election since 1914. Turnout also surged for the off-year elections in 2017 and 2019, and that surge favored Democrats.

We are presently on pace to shatter the modern record for turnout in a presidential election, surpassing the 64 percent of eligible voters who cast ballots in 1960.

According to New York Times/ Siena College polling, huge numbers of people who didn't vote in 2016 are voting this year in key swing states, and they're leaning toward Biden by significant margins. (The numbers are such that they aren't just young people coming of voting age.)

Perhaps if Biden wins, these erstwhile non-voters will once again stay home. But studiesshow that voting is habit-forming--participating in one election increases one's likelihood of doing so in subsequent contests. And win or lose, Trump and his movement aren't going anywhere.

Research has also found that non-voters tended to skew younger and more diverse than the voting population, and hold more left-leaning views about the economy and the role of government.

If, in the future, turnout of over 60 percent becomes the norm rather than the exception, it could very well transform our politics.

New conventional wisdom about voter suppression could emerge

The conventional wisdom about how politics works matters a lot.

After achieving almost presidential-year turnout in the 2018 midterms despite relentless GOP efforts to suppress the vote in communities that skew Democratic, some analysts looked at people of color braving hours-long line to vote and concluded that blatant voter suppression might result in a backlash by pissing off voters and motivating them to jump through whatever hoops are necessary to cast their ballots.

That was the case during the Wisconsin primaries, when Republicans went all the way to the Supreme Court to block mail-in balloting during a pandemic, and were rewarded with massive Democratic turnout that won them a state Supreme Court seat.

This year, GOP efforts to suppress the vote are even more brazen. If the conventional wisdom coalesces around the idea that trying to win by keeping the other side from participating leads them to turn out in force, that would be a powerful incentive to at least moderate those efforts in the future.

A new coalition against minority rule?

The Democratic coalition has long been divided by differences over policy and strategy. Trump has been a unifying force in this regard, and at present, all of the factions of the broad left are working toward a common goal of defeating him and his movement.

That won't last long past the election; soon, we will once again be engaged in heated debates over policy and messaging and all the rest.

But thanks to Trump, Mitch McConnell and Senate Republicans, there are some early signs of an emerging coalition of progressives and moderates pushing to kill the filibuster, expand the courts and possibly add new states to the union.

As Ezra Klein noted on Twitter last week, "I cannot emphasize enough how much McConnell's actions on Garland and Barrett have radicalized Democratic senators."

At Vox, he wrote:

Over the past few months, I've been talking to Senate Democrats about the future of the filibuster. To my surprise, something had cracked in the ice. Moderate members who used to dismiss calls to abolish the filibuster were taking them seriously, predicting or even advocating its fall. And the reason they gave me was always the same: Mitch McConnell...
Democrats are now considering reforms that are, from the standpoint of democratic governance, overdue, but that were, from the standpoint of Senate traditions and mores, unthinkable: eliminating the filibuster, adding DC and Puerto Rico as states, even changing the composition of the Supreme Court.

Joe Biden is an instinctive institutionalist, but a coalition of progressives and moderates pushing to retaliate for McConnell's overreach would have a very powerful argument.

Biden also lived through relentless Republican obstruction while the Obama administration was trying to manage a crisis that was less severe than that which we face today. Circumstances matter, and addressing the pandemic and the economic crash that it caused is going to be difficult, if not impossible, without heavy government intervention and significant public spending. If Democrats do retake the Senate, Republicans would be unable to get on board without sparking a revolt among their base. That would leave Democrats with the choice of using some hardball tactics or doing nothing for a country facing historic crises. The stars could be aligning for a feistier and bolder Democratic Party to emerge from the Trump era.

But at a minimum, the right's relentless efforts to suppress the vote and disenfranchise voters both in the midterms and during this election has put a new Voting Rights Act front and center on the Democratic agenda.

Polarized courts

Contending with entrenched minority rule can take different forms, but I want to focus on one significant change that seems certain.

For several decades, conservatives have fought an asymmetric war for the courts. It has long been a voting issue for the Republican base while rank-and-file Democrats considered it a second-tier issue. Conservative foundations have poured hundreds of millions of dollars into shaping the courts--funding advocacy groups and journals and academic chairs.

And while the right has long assailed the fundamental legitimacy of "liberal activist judges"--"robed tyrants" thwarting the will of the people--the left tended to criticize individual decisions like Citizens United or Shelby County while accepting the courts' authority in broad terms.

Refusing to give Merrick Garland so much as a hearing, appointing the very partisan Brett Kavanaugh--whose temperament is anything but judicial--and then ramming Amy Coney Barrett's nomination while votes were already being counted would probably be enough to change that. The prospect of what a 6-3 Court might actually do, Republicans' constant gloating over their wins and the relentless efforts by Republican judges to restrict votes during this election make it a certainty.

How that will play out over time remains to be seen. But both parties taking the courts seriously is a sea-change in American politics.

Racial vs education gaps

Trump and his supporters are delusional to believe that he's going to get a significant share of the Black vote. But when the exit polls are released we may discover that he has made some inroads with Blacks and Latinos.

Meanwhile, he has opened up a yawning educational gap among white voters. According to data from the Cooperative Election Study--a sample of over 50,000 likely voters, whites with a college degree favor Biden 58-36, while those without one back Trump 57-36. This has already reshaped the electoral battlefield, with Republicans getting crushed among college-educated white voters in the 'burbs.

Those shifts will likely endure. But the share of the white electorate with college degrees is steadily increasing, while non-college whites represent a demographic that's in decline. Republicans' shrinking base could potentially force them to appeal to a broader swath of the electorate, which would be healthy for our democracy over the long run.

The legacy media are normalizing the GOP's brazen attempts to corrupt this election

"Democrats at all levels remained privately terrified of another surprise result, despite far greater confidence in polling that point[s] to a victory for former vice president Joe Biden," reports The Washington Post. "Republicans put their faith, once again, in the president's showmanship as he mounted a final series of irreverent rally spectacles in violation of public health guidance, hoping to motivate a massive late surge of turnout."

This framing completely obscures what is happening in America on the eve of the election.

Republicans are not putting their "faith in Trump's showmanship." As I wrote last week, they're responding to a drumbeat of rosy predictions in the conservative press, where Trump's victory is imminent--possibly in a landslide--based on boat- and truck-parades, dubious theories about "shy" Trump voters and carefully cherry-picked polls from firms with established GOP leans, or "house effects." Most of them are unprepared for defeat and primed to see a loss as prima facie evidence of fraud, and that is a very dangerous situation.

And while it's certainly true that many Democrats were traumatized by the 2016 election, attributing their anxiety only to concerns that we might see an even greater polling error this year elides the fact that we're witnessing not only the most comprehensive voter suppression campaign since the Jim Crow era, but also active attempts to prevent untold numbers of legitimate ballots to not be counted. A lawsuit seeking to trash 127,000 Democratic-leaning ballots in Harris County, Texas, has been the most high-profile attempt to do so thus far, but we can expect more of the same.

Trump, who has urged violent extremists to "stand by," is planning to declare victory on Tuesday night if he's ahead after a partial count, despite the fact that millions of mail ballots will remain uncounted, military ballots tend to come in late and seven counties in the crucial swing state of Pennsylvania don't plan on starting to count absentee ballots until Wednesday, according to NBC.

The US Postal Service, managed by a Trump donor with serious conflicts of interest, has announced that mail ballots returned by voters in Detroit, Greater Michigan, Central Pennsylvania and other localities have been delayed due to "COVID-19 and employee unavailability," according to The Hill's John Kruzel. Michigan won't count those ballots if they're received after Election Day. Pennsylvania voters' ballots are supposed to be counted if they arrive by November 6, but the GOP is suing to shorten that deadline. Meanwhile, Trump's hand-picked Supreme Court Justices have adopted a once-extreme legal theory holding that state courts don't have the power to protect voting rights according to their state constitutions.

And after a judge lifted an almost 40-year-old consent decree barring the GOP from intimidating voters with unauthorized "election observers" stationed at the polls, Trump has called for an "army" of supporters to confront voters trying to exercise their franchise, and they haveresponded.

So there is far more for Trump's opponents to worry about than a polling error. That's probably the least of their worries.

And in a functional democratic republic where a bipartisan consensus held that eligible citizens should be encouraged to participate, and that their votes should be counted, it would be Trump's supporters who would be chewing their nails to the quick while Democrats would be looking forward to this election with excitement.

While Trump has a chance of winning--the leading forecast models peg the likelihood at between 5% and 10%--consider these indicators:

  • According to preliminary data from the 2020 Cooperative Election Study, which surveyed a massive sample of 50,000 likely voters, Biden is leading Trump nationally among those who didn't vote in 2016, or voted for a third party, by a 56-27 margin. And three times as many of Trump's 2016 supporters prefer Biden (6 percent) than Clinton supporters back Trump (2 percent).
  • That trend is reflected in crucial swing states in NYT/ Siena College surveys. In Arizona, more than one-fifth of likely voters didn't vote in 2016, and Biden leads among that group by 7 points; in Wisconsin, he's ahead by 19 points with those who sat out 2016; in Florida, he's up by 17 and in Pennsylvania, he leads Trump by 12 points among the 18% who sat out the last election, according to Greg Sargent.
  • There has been a huge shift in independents over the past four years; Trump won them by four points in 2016, and Biden leads the incumbent among this group by double digits in most polls.
  • And of course, Trump's approval rating went under water--with more people disapproving than approving of his performance--on his 15th day in office, which is unprecedented, and he and his party have trailed Biden and the Democrats every single day of this race by significant margins.
  • While Trump wasn't on the ballot directly in 2018, he sucks up all the oxygen in a room. A surge of turnout led Democrats to their biggest midterm win in history. They also turned out and won key races in the off-year elections in 2017 and 2019.

All of which is to say that it is abundantly clear from every available metric that a majority of Americans, having voted for Hillary Clinton four years ago, have wanted Trump gone ever since. And it is not vague fears of a polling error that is causing them stress--it's the very real possibility that Donald Trump will attempt to pull off a coup.

Trump's campaign is in tatters — but his administration is trying to pick up the pieces

The Trump campaign, facing a cash crunch, has gone off the air in a number of swing states in the final weeks of the election. They're playing defense in states they didn't expect to have to defend, like Texas and Georgia, and are spread thin. And they're competing against a Democratic challenger who has raised a record amount of campaign cash this cycle and entered the home stretch with an $118 million advantage over the incumbent.

Trump has compensated by using taxpayer dollars to supplement his campaign's efforts, most prominently with a planned $300 million advertising blitz by the Department of Health and Human Services (HHS) to "defeat despair" about Covid-19. According to Politico, the hyper-partisan political appointee responsible for the campaign, Michael Caputo, pitched it internally with the theme, "Helping the President will Help the Country."

That campaign appears to have fallen apart--or at least been pushed past the election--after Caputo suffered a high-profile meltdown and then took a leave of absence, and internal resistance from within the agency spilled into the press.

But HHS wasn't the only agency pushing Trump's message. In the closing weeks of the campaign, the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) have launched an unprecedented, coordinated campaign to advance Trump's demagoguery of immigrants and refugees "in key battleground states where President Donald Trump is trailing his opponent Joe Biden in the polls," according to Time Magazine.

As part of this push, top DHS and ICE leaders have traveled across the country to hold at least four press conferences this month in Pennsylvania, Arizona and Minnesota, shadowing the path of Trump's rallies as he makes a last-minute appeal to voters there. These public announcements by senior leaders ahead of the election, which former officials tell TIME are abnormal, if not unprecedented, have been held to publicize mostly routine immigration enforcement operations that would usually have been revealed with little fanfare.
Instead, DHS and ICE officials have used them as a platform to aggressively make the case for the president's immigration policies, often taking on a markedly Trumpian tone and echoing parts of his stump speech. At multiple events, Acting Homeland Security Secretary Chad Wolf and his deputy Ken Cuccinelli have talked about immigrants taking American jobs, blasted Democrat-run sanctuary cities, touted "America First" and warned of "evil people who seek to travel to the United States with the intent of harming and killing Americans."

Even more blatant are the billboards. CNN reports:

When the idea of erecting billboards of immigration violators initially came up at least a year ago, US Immigration and Customs Enforcement officials didn't think much of it. The proposal was considered to be a low priority, according to two sources familiar with the discussions.

But just weeks from the presidential election, billboards picturing immigrants who were previously arrested or convicted of crimes are up in six locations in Pennsylvania, a critical swing state.

Buzzfeed News reported that "current ICE employees, speaking anonymously because they were not authorized to speak publicly, said they were also concerned at the effort and what it meant for their agency and its reputation. One ICE employee said the billboards were clearly an attempt to 'pander' to Trump's base: 'It's appalling, but so much about immigration enforcement under this administration has been for that purpose alone.'"

This follows an ICE enforcement campaign this month targeting "sanctuary cities," a frequent target of Trump's mendacious attacks. The Washington Postreported in September that "two officials with knowledge of plans for the sanctuary op described it as more of a political messaging campaign than a major ICE operation, noting that the agency already concentrates on immigration violators with criminal records and routinely arrests them without much fanfare."

Absent some internal memo or emails emerging in which officials explicitly say that this effort is designed to help re-elect Trump, this is probably all technically legal. The Hatch Act, which bars federal employees from participating in campaign activities--and the use of public resources for partisan activities--is about explicit electioneering and doesn't cover acts that indirectly help a campaign advance its messaging. But it is hard to imagine a more brazen violation of the spirit of that law.

If Democrats win unified control next week, one hopes that they'll remember that these authoritarian agencies that have embraced Trump's xenophobic worldview like no others went all-in for his re-election.

Trump called military personnel 'suckers' and 'losers'--and now he's fighting to disenfranchise them

During the tumultuous fight for Florida in 2000, Mark Herron, an attorney for Al Gore's campaign, sent a memo to the team's recount observers urging them to challenge arriving absentee ballots that weren't properly postmarked. The race for Florida, and the White House, was separated by around 300 ballots at the time, and many of those mail-in votes were from overseas service-members who leaned toward George W. Bush.

The Bush campaign got ahold of Herron's memo and screamed bloody murder. CNN reported at the time that "Bush aides and Republican surrogates, including retired Persian Gulf war commander Norman Schwarzkopf, have blasted their Democratic rivals for having more than 1,400 overseas absentee ballots disqualified in Florida counties." Rep. John Sweeney (R-NY), accused Democrats of "actively and directly attempting to disenfranchise the brave men and women who are defending freedom."

Democrats moved into a defensive crouch, deploying then-Senator Bob Kerrey, a decorated veteran of the Vietnam War, "to call on Republicans to retract those 'unfair and irresponsible' claims." Gore's Florida campaign chief reversed course, telling election officials, "no man or woman in military service to this nation should have his or her vote rejected solely due to the absence of a postmark." Bush spokesperson Ari Fleischer's response: "They accomplished their mission and now they're running for cover. They never should have targeted our nation's servicemen and women in the first place."

Of course, everyone knew they weren't all military ballots. While military service members have been voting absentee since the Civil War, The Uniformed and Overseas Citizens Absentee Voting Act of 1986 guaranteed that military personnel, civilians working for the US government abroad and all other "overseas voters who no longer maintain a residence in the United States" could register and vote by absentee ballot in all elections for federal office. And all of those ballots, whether military or civilian, were to be treated the same.

But the GOP's messaging elided that fact, and it was effective.

Now, 20 years later, demonizing voting-by-mail is central to Donald Trump's strategy to eke out a second term despite being historically unpopular and presiding over a public health catastrophe. This week, he suggested that counting ballots after November 3 would be "totally inappropriate" and, in his eyes, illegal. Meanwhile, Republicans across the country have filed a flurry of lawsuits asking courts to limit absentee ballot counts on various grounds, and in a much-derided opinion issued this week, Supreme Court Justice Brett Kavanaugh wrote that Election Day mail-in deadlines are devised "to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election."

But according to a report by a military voting rights group, 29 states and the District of Columbia "accept mailed military absentee ballots after election day, if the ballots are sent before the close of polls." According to the report, "more than 75 percent of the available votes in the Electoral College will come from states that will count military ballots after election day."

Millions of Americans will vote absentee because of the pandemic, and among them will be hundreds of thousands of ballots cast by service members. (Most military personnel vote by mail, whether stationed at home or abroad.) It isn't clear why Democrats, having been vilified for "actively and directly attempting to disenfranchise the brave men and women who are defending freedom" 20 years ago aren't making this a major issue today.

Trump is vulnerable to these charges after reportedly calling military personnel "suckers" and "losers," and attacking a number of his top generals. A Military Times poll conducted in late August found that he was trailing Joe Biden by four percentage points among active-duty service men and women. And they have families.

Trump and his party are fighting tooth-and-nail to prevent military ballots from being counted after November 3. That should be an easy layup for Democrats.

A right-wing powder keg: How conservative media is convincing Trump fans that he's winning bigly

Over the weekend, NPR interviewed some anxious voters. One, a Trump-supporter, said that his biggest worry was that Trump needed to win in a landslide to keep the left from claiming that the election was stolen. That Trump would win wasn't in doubt.

For those who get their news from the conservative media, there is ample evidence that Trump is cruising to victory. In a National Review piece pushing back on such reports, Kevin Williamson writes that "many conservative media figures are predicting . . . a Trump landslide. This wish-casting is based on increasingly imaginative reading of the political terrain: Comedian Jimmy Failla of Fox News, for example, called a Trump "lawnslide" based on — hold your breath, now — an informal poll of truckers who were giving their estimates of the ratio of Trump yard signs to Joe Biden yard signs." Boat parades, truck caravans, how many people believe their neighbors are supporting Trump and other quicky metrics have all been the basis of arguments that the "liberal media" is lying about Trump's bleak position in the race.

On a press call earlier this month, Trump campaign advisor Corey Lewandowski told reporters that based on the campaign's internal polling, as well as grassroots enthusiasm within Trump's base, it was quickly becoming "mathematically impossible for Joe Biden to win this campaign." Pro-Trump media outlets ran with it.

Serious election observers agree that it's always best to focus on the polling averages rather than individual surveys because the former aren't as noisy or prone to sampling errors. But throughout October, The Washington Examiner columnist Paul Bedard has written a series of posts painting a picture of Trump surging from behind to take a clear lead in carefully cherry-picked polls conducted by firms that are known for their strong pro-GOP "house effect," or lean. Most of them are write-ups of the latest Rasmussen polls. Rasmussen currently has Trump's approval rating at 51 percent, a very different picture than his 42.5 percent approval rate in FiveThirtyEight's polling average or the 44 percent in RealClearPolitics'. On Monday, when Rasmussen's tracking poll gave Trump a narrow lead nationally and pegged Trump's approval at 52 percent, Bedard noted that being over 50 percent is "a key factor to winning reelection. Former Presidents George W. Bush and Barack Obama were both at 50% when they edged out reelection victories."

Trump could win this election--his chances are probably better than the 12 percent likelihood FiveThirtyEight's forecast model gives him due to issues with mail ballots and potentially adverse rulings by partisan courts--but it's hard to overstate how unmoored from reality the view that he's presently leading in the race really is. Trump is the first president in the modern polling era whose disapproval rating exceeded his approval rating in his first month in office and he has remained under water in that metric for his entire presidency, usually by around ten points. The presidential race has been historically stable, with Joe Biden leading Trump nationally by an average of 6 points all of last year, and expanding that lead to around 9 percentage points at present. Biden's also been ahead in the top battleground states for every day of the race.

The shared goal of the Trump campaign and its sprawling propaganda network in presenting an alternate reality of the race is to keep donors writing checks and the Republican base engaged. Amid a raging pandemic, it's not hard to imagine some voters who support a candidate trailing by a large margin deciding they'll sit this one out, especially if they face long lines at the polls to cast a vote.

But in doing so, they're creating a powder keg. The narrative that Trump is poised to win a second term is being pushed by the same politicians and media outlets that have spent years advancing a big, consequential lie that voter fraud is widespread in the United States. Taken together, they are telling millions of perpetually angry Trump supporters that he can only lose as a result of foul play.

This reckless effort to keep their voters engaged is coming at a time when experts are sounding alarms over the potential for violence surrounding this election. In this case, their habitual dishonesty is incredibly dangerous.

Voting Rights Roundup: Supreme Court poised to upend federalism itself to gut voting protections


Pennsylvania: The U.S. Supreme Court deadlocked 4-4 on Pennsylvania Republicans' request to stay two state Supreme Court rulings that had sided against Republican requests to restrict voting access and enable voter intimidation, leaving the state court's orders in place.

The decision, however, has catastrophic implications for the future of voting rights in the likely event that Judge Amy Coney Barrett is confirmed to the bench, signaling that the justices are prepared to eviscerate long-settled doctrines of federalism in the service of actively undermining fair elections.

The rulings in question saw the Democratic majority on Pennsylvania's top court reject the GOP's request to block counties from setting up drop boxes for returning mail ballots. The court also turned back Republican demands that ballots only count if received by Election Day (the state will accept ballots postmarked by Election Day and received within three days).

In addition, the court determined that ballots lacking a postmark would "be presumed to have been mailed by Election Day" unless there is strong evidence to the contrary. Finally, the justices rejected allowing "poll watchers" from serving in counties where they were not registered to vote, a thinly veiled attempt at voter intimidation by Trump, who has repeatedly incited his supporters to harass voters at polling places in Philadelphia and other localities with large Black populations.

While Chief Justice John Roberts' decision to side with the Supreme Court's three liberals leaves the Pennsylvania court's orders in place for now, that's no guarantee they'll remain in effect much longer. Republicans swiftly filed a new federal lawsuit seeking to block the mail ballot return deadline in an attempt to get the question back before the U.S. Supreme Court soon after Barrett is confirmed. Barrett could therefore cast the deciding vote, potentially even after Election Day, to overturn the state court's ruling and throw out thousands of ballots that were postmarked by Election Day but not received until afterward.

It has been a cornerstone of American federalism for more than two centuries that when state courts make decisions based solely on state constitutional grounds that don't conflict with federal law—as is the case here—those decisions are insulated from federal review. However, Republicans argue that the U.S. Constitution's Elections Clause giving the "legislature" in each state the power to set the "times, places, and manner of holding" federal elections means that only the legislature itself may exercise that power, not those tasked with setting or interpreting state laws, such as state courts.

In other words, Republicans are arguing that state courts—as well as voter-initiated ballot measures and potentially even governors—lack the power to set election laws when they disagree with the legislature. Such a notion would shatter the principle of judicial review at the state level. In a state such as Pennsylvania, where the GOP holds gerrymandered legislative majorities despite Democrats winning more votes in 2018, it would cement minority rule by removing any real check on ill-gained legislative power. This outcome would eliminate any real recourse that voters have to end gerrymandering when lawmakers won't act.

The last few months have seen the U.S. Supreme Court and federal judges appointed by Republicans repeatedly rule against voting rights. This Pennsylvania case is an ominous indicator that right-wing judges will go to new extremes to eviscerate voting protections to entrench the GOP in power for the foreseeable future. Should Democrats overcome these barriers next month and win the presidency and Senate, they will likely soon face the difficult choice of either reforming the structure of the courts or watch voting rights wither away under an unrelenting judicial assault.


Ballot Measures: Daily Kos Elections takes a look at 24 ballot measures going before voters around the country that would reshape how elections and voting work, with some seeking to protect fair elections while others attempt to undermine them. Major issues include redistricting reform, the adoption of voting systems that promote majority winners, efforts to lower the voting age in local elections, and Republican-backed efforts to restrict future ballot initiatives.

Key contests include whether to adopt redistricting reform in Virginia or variations of instant-runoff voting in Alaska and Massachusetts; Colorado's membership in the National Popular Vote Compact for the Electoral College; and Puerto Rico's latest referendum on statehood. Be sure to bookmark our spreadsheet for Election Night as results come in.


Arizona: Democrats have filed a lawsuit in state court arguing that Republican Gov. Doug Ducey has illegally undermined the impartiality of Arizona's independent redistricting commission by injecting partisanship into the process for selecting members of the panel.

In 2000, Arizona became the first state to adopt an independent redistricting commission enshrined in its constitution after voters passed a ballot initiative by a wide 56-44 margin. That development, however, deprived Republicans of their expected control over redistricting, prompting the GOP to fight the commission's existence nonstop for years.

The commission is made up of two Democrats, two Republicans, and one unaffiliated member. All are selected from a pool of 25 applicants screened by the state's commission on appellate court appointments, a panel that was established as a way to help insulate judicial appointments from partisan politics. Legislative leaders from both parties in the state House and Senate each get to pick one member. Those four commissioners then choose an unaffiliated tiebreaker. The commission's maps are required to adhere to nonpartisan criteria and prioritize political competitiveness.

While this system is supposed to remove either party's ability to ram through gerrymandered maps, that is just what Republicans appear intent on doing. Democrats say that Ducey has illegally stacked the applicant pool by stacking the court appointment commission itself. Indeed, Ducey has refused to nominate any Democrats to the judicial nominating commission despite a rule that no more than eight of its 15 members can belong to the same party. That has left the panel with only Republicans and independents, some of whom have ties to the GOP.

Thanks to Ducey stacking the judicial nominating commission, multiple candidates from the five supposed independents approved by the appellate court commission appear to be decidedly Republican-leaning. Democrats want the state court to disqualify gun store owner Robert Wilson for having hosted a rally for the Trump campaign, as well as utilities attorney Loquvam because he was a lobbyist registered with the state's Corporation Commision, which regulates utilities. Arizona's constitution prohibits commissioners who have served as a lobbyist within the past three years.

Ducey's efforts are only the latest attempt to thwart the will of voters. After independent commissioner Colleen Mathis chose proposals put forward by Democrats in 2011, Republicans claimed she was a closet Democratic partisan and tried to impeach her, only to be rebuked by the state Supreme Court. But the partisanship of the maps she selected can be measured by statistics, which showed no unfair advantage for the GOP and are among the fairest nationally, especially when considering the commission's competitiveness mandate.

Republicans then twice sued all the way to the U.S. Supreme Court, seeking both to strike down the commission itself and the maps it produced. However, in a 2015 ruling in which former swing Justice Anthony Kennedy cast the decisive vote, the court upheld the constitutionality of using ballot initiatives to enact laws such as Arizona's redistricting commission.

But thanks to the GOP's unrelenting assault on judicial independence, the independence of Arizona's redistricting commission may now be at risk. That's because in 2016, Ducey packed the state Supreme Court by adding two seats to cement a hardline conservative majority, leaving in doubt whether Democrats have a chance to succeed with this lawsuit. But even if Democrats do prevail at the state level, the U.S. Supreme Court could still overturn its 2015 precedent and strike down the commission now that Justices Kennedy and Ruth Bader Ginsburg are no longer on the court.

Redistricting: Next month's elections are the last that will take place before states are required to redraw their congressional and state legislative districts to reflect population changes in the 2020 census. That makes them critical in the fight against gerrymandering. In a new article, Daily Kos Elections looks at what are the key elections for governors, state legislatures, state supreme courts, and ballot measures in the states that could change who's in charge of the redistricting process for the coming decade. Be sure to bookmark the spreadsheet version of this info since we'll update it as results come in.

As things stand today, Republicans would get to draw three to four times as many congressional districts as Democrats if nothing changes in 2020, and the picture is similar for state legislative maps. But Democrats are well-positioned to flip a number of key races that would break GOP's control over redistricting in important swing states. In just four states home to one-fifth of the House's seats, control over Ohio's Supreme Court and the state houses in Florida, North Carolina, and Texas could decide whether the GOP has unfettered power to gerrymander there or whether Democrats will have a seat at the table.


Michigan: A 6th Circuit Court of Appeals panel has ruled 2-1 along ideological lines to overturn a lower court decision that had blocked Michigan's unique law banning third-party organizations from hiring paid transportation to take voters to polling places, with the panel's two GOP appointees siding with Michigan Republicans.

Texas: A panel of three GOP-appointed judges on the 5th Circuit Court of Appeals has overturned a lower court ruling that required Texas to adopt a uniform process statewide for giving voters a chance to fix purported problems with their signature on absentee mail ballots. The plaintiffs appeared to concede defeat, saying they would now try to persuade counties to voluntarily change their procedures to avoid disenfranchising voters.


New Jersey: Democrats in a state Assembly committee have passed a bill along party lines to establish two weeks of in-person early voting for general elections beginning with next year's state elections. Democrats in the state Senate passed a similar bill in committee earlier this year.


2020 Census: A federal district court in California has become the second lower court to block Trump's executive memo ordering the census to exclude undocumented immigrants from the counts used to determine the apportionment of congressional seats and Electoral College votes among the states after the 2020 census, prompting Trump to appeal to the Supreme Court. In the other case that saw a ruling against Trump in this matter, the Supreme Court has set oral arguments for Nov. 30 over Trump's appeal.


Please bookmark our litigation tracker for a complete summary of the latest developments in every lawsuit regarding changes to elections and voting procedures as a result of the coronavirus.

Alabama: The U.S. Supreme Court has sided with Republicans and blocked a lower court ruling that had suspended Alabama's ban on curbside voting.

Alaska: A state court judge has refused to require that officials notify voters and give them a chance to fix purported problems with their mail ballot signature instead of rejecting their ballots.

Indiana: A panel of three GOP-appointed judges on the 7th Circuit Court of Appeals has blocked a lower court decision that had ruled that ordinary voters had standing to sue in court to seek an extension of Election Day polling hours in the event of voting problems, meaning once more that only county election boards will have that ability. Indiana's polls close at 6 PM, making it the earliest state in the country alongside Kentucky.

Iowa: Iowa's conservative-dominated state Supreme Court has upheld a law passed by Republicans earlier this year that bars county officials from using the state's voter database to fill in missing information on mail ballot applications such as a voter's "PIN" when their identity is otherwise known.

The law instead requires that officials individually contact voters to fill in missing data, increasing the turnaround time for processing and potentially risking that some voters will not receive their ballots in time. Republicans have used this law to throw out tens of thousands of partially pre-filled mail ballot applications that voters had already submitted.

Maine: The Democratic-appointed majority on Maine's Supreme Court has refused to require that mail ballots be counted so long as they're postmarked by Election Day and received within a few days afterward, instead requiring they be received by Election Day. The court additionally rejected the plaintiffs' request that it order local officials to notify voters and give them a chance to fix supposed problems with mail ballot signatures; Democratic Secretary of State Matt Dunlap had previously issued an order directing local election officials to take such steps, but the plaintiffs wanted further assurance in court.

Missouri: A federal appeals court has blocked a lower court ruling that would have allowed mail voters in Missouri to return their ballots in person. Under an almost unparalleled state law, such voters can only return their ballots via U.S. mail.

Mississippi: Voting rights advocates who had sued Mississippi officials in federal court over expanding voting access have reached a settlement that will allow curbside voting for those with COVID symptoms and give absentee voters whose ballots are rejected the chance to fix any problems. The agreement leaves in place the state's requirement that voters who request an absentee ballot present an excuse in order to do so. Mississippi is one of just five states with such a requirement still in place this year and the only one that also lacks any form of in-person early voting.

Nevada: Donald Trump's campaign has filed a suit in state court demanding that election officials in Clark County, Nevada stop counting mail ballots, claiming that officials are not following proper procedures "that facilitate transparency," but a lower court denied Trump's request for a temporary restraining order on Friday while the case proceeds. This year, Nevada is conducting its elections almost entirely by mail for the first time, an approach that is being followed statewide. Clark County, which is home to Las Vegas and roughly two-thirds of the state's registered voters, is a Democratic stronghold.

North Carolina: The 4th Circuit Court of Appeals, with all 15 judges sitting en banc, has upheld a settlement made by the Democratic majority on the North Carolina Board of Elections extending the absentee ballot receipt deadline from three days after Election Day to nine days after (ballots must still be postmarked by Election Day). Republicans are appealing the ruling to the Supreme Court.

Meanwhile in a separate state-level lawsuit, the Democratic majority on North Carolina's Supreme court has rejected issuing a stay in the GOP's attempt to overturn the state board's settlement in state court, leaving provisions in place making it easier for voters to fix purported signature problems on mail ballots. Republicans have not indicated if they will also appeal this ruling to the U.S. Supreme Court.

Pennsylvania: The Pennsylvania Supreme Court, which has a 5-2 Democratic majority, has unanimously ruled that election officials may not reject mail ballots because of alleged signature mismatches.

Tennessee: A federal appeals court has declined to overturn a lower court order that put on hold a Tennessee law forbidding first-time voters who register by mail or online from voting absentee and instead requiring them to vote in person.

Texas: The Texas Supreme Court, which is entirely Republican, has rejected a Republican lawsuit that had sought to block curbside voting in Harris County, the most populous in the state. Meanwhile, a state Court of Appeals panel has upheld a lower court order that blocked GOP Gov. Greg Abbott's order limiting counties to only one location for dropping off mail ballots regardless of population size. Republicans said they would appeal to the state Supreme Court, which would suspend the ruling from going into effect while the appeal is pending.

The danger of laughing off Trump's fascist blather

"As President Trump entered the final stretch of the election season," reports The Washington Post, "he began making more than 50 false or misleading claims a day." Since then, "it's only gotten worse — so much so that the Fact Checker team cannot keep up."

Trump's relentless mendacity and constant ridiculousness numbs reporters and the larger public to just how dangerous his inclinations are when paired with the power of the presidency. Every day, he says something that would result in a major scandal for any other president, of either party, and after years of hearing this stuff, there's a natural tendency to dismiss it as 'Trump being Trump.'

On Wednesday, The Washington Postran a story illustrating why this is so dangerous. While we shake our heads at Trump's favorite rhetorical gambit--accusing political opponents and reporters who ask him questions he doesn't like of committing unspecified crimes--the report reveals that he says the same things in private; it is more than just campaign gibberish.

President Trump and his advisers have repeatedly discussed whether to fire FBI Director Christopher A. Wray after Election Day — a scenario that also could imperil the tenure of Attorney General William P. Barr as the president grows increasingly frustrated that federal law enforcement has not delivered his campaign the kind of last-minute boost that the FBI provided in 2016, according to people familiar with the matter.
The conversations among the president and senior aides stem in part from their disappointment that Wray in particular but Barr as well have not done what Trump had hoped — indicate that Democratic presidential candidate Joe Biden, his son Hunter Biden or other Biden associates are under investigation, these people say. Like others, they spoke on the condition of anonymity to disclose internal discussions.
In the campaign's closing weeks, the president has intensified public calls for jailing his challenger, much as he did for Hillary Clinton, his opponent in 2016. Trump has called Biden a "criminal" without articulating what laws he believes the former vice president has broken.
People familiar with the discussions say Trump wants official action similar to the announcement made 11 days before the last presidential election by then-FBI Director James B. Comey, who informed Congress he had reopened an investigation into Clinton's use of a private email server while she was secretary of state after potential new evidence had been discovered.
The attorney general has been drawn into some of those disputes as the president has complained that a hoped-for report from Connecticut U.S. Attorney John Durham, who is scrutinizing the Russia investigation's origins, is not expected to surface before Election Day.
The president has stopped praising Barr and instead strikes a more critical tone toward him. Trump declined to answer a Newsmax reporter recently when asked if Barr would be kept around for a second term.
Trump was so focused on the Durham report that he would turn up the television volume when segments would air about it, people around him said. Trump has told allies that he once believed Barr would deliver "scalps" in the form of Durham's findings, according to an adviser who recently spoke to Trump about it. "But they aren't doing s---," the president said, according to this person.

Fortunately, with Trump trailing Joe Biden by a significant margin and unlikely to occupy the Oval Office after January, nobody in law enforcement is fabricating bogus charges against Trump's foes.

But keep in mind that Trump is hectoring the most corrupt Attorney General in memory--a guy who has turned the country's top law enforcement agency into Trump's personal law firm and probably obstructed justice on Trump's behalf--for perceived disloyalty. And recall that Trump picked Barr after his first choice, wingnut Matthew Whitaker, became a laughingstock when his past as a toilet-scammer became public. FiveThirtyEight currently gives Trump a one-in-eight likelihood of winning the Electoral College, and if he does, you can bet that Trump would find someone in MAGA world who wouldn't similarly frustrate his authoritarian impulses.

Trump's clownishness would be comical if he were a fictional character. But he controls the executive branch--and holds the nuclear codes--and we should take him both seriously and literally and understand that it's no laughing matter.

Trump forced Republicans into the dumbest corner

Republicans are stuck on the wrong side of public opinion on Covid-19, and that's probably the biggest reason why they've struggled to make up any ground against their Democratic opponents. Back in March, I noticed a trend that was unusual in our polarized times: GOP voters were telling pollsters that they believed Donald Trump's various claims about the origins of the pandemic and bought that the media and Democrats were exaggerating its danger, but when asked about how they themselves were responding to the outbreak, majorities made it clear that they took it very seriously. They were concerned about its impact on their families and communities, were taking precautions to avoid contracting the virus and supported most if not all public health measures to contain it.

That disconnect has persisted throughout the course of the campaign. Trump and others have mocked Joe Biden for "hiding in his basement" and wearing a mask when out on the campaign trail, but a survey released earlier this month found that, "despite noisy no-mask protests, 92 percent of 2,200 Americans polled say they wear a face mask when leaving their home, with 74 percent saying they 'always' do." Another survey released this week found that voters favored a national mask mandate by a 20-point margin. While Trump assures Americans that the coronavirus is nothing to fear, another recent poll found that two-thirds of respondents "say they are worried that someone in their family will be exposed to the virus."

Any minimally competent campaign strategist would tell you that it has always been imperative for Trump to project a seriousness about Covid-19 to the American public and, if possible, shift the conversation to more friendly ground. But he and his party seem intent on doing the opposite. They've created a steady stream of news stories about their own carelessness--from the Rose Garden reception for Trump Supreme Court nominee Amy Coney Barrett turning into a super-spreader event to picking fights with Anthony Fauci to multiple elected officialsviolating airline mask mandates. Conflicting reports about Trump's health status, that goofy ride around Walter Reed Medical Center and now Trump touring the country holding rallies, many in Coronavirus hotspots, have all assured that Covid and the regime's reckless and anti-scientific responses to it would remain the media's primary focus in the final stretch of the campaign.

And even as numerous prominent Republicans and White House staffers tested positive for the disease, the conservative media continued to relentlessly downplay the severity of this historic public health crisis and openly mock those who take it seriously. It's hard to overstate how wide the divide between the movement and a significant majority of the public--voters Trump needs to win over--has become.

For a party that was once hailed for its messaging prowess, it is confounding. But it makes sense in context. Trump set the course for his party to navigate the pandemic months ago, and he simply does not have a plan B.

Way back in March, when Trump was calling warning about the severity of the pandemic a "hoax," I wrote that his "[Covid] strategy is clear."

He's incapable of even considering any political approach other than firing up his base, and he hopes to deepen the existing partisan divide on the severity of the COVID-19 pandemic, and then blame the media and Democratic governors for the economic tsunami that's about to break over our shores... This is all about laying the groundwork to claim that he desperately tried to keep the economy humming but was thwarted by others.

When I wrote that, 602 Americans had died, and while I thought the strategy was doomed from the start, it made at least a modicum of sense at the time. If the outbreak did turn out to be less widespread than the experts were saying it would be, Trump might have been able to shift responsibility for the economic downturn to Democratic governors and the media, and run on his stewardship of the economy prior to the pandemic hitting.

That he hasn't made a course correction as the death toll rose through the thousands to the tens of thousands and ultimately to over 210,000, is no doubt related to the fact that Trump is ensconced in the same conservative media bubble that has defended and protected him since he won the Republican nomination in 2016. He believes in his mythical political skills, and knows better than any advisors and pollsters who tell him he's making serious strategic errors, if any of them do.

But a simpler explanation would be that Trump just doesn't have another strategy to which he can pivot. He has always been a bullshit artist whose carefully cultivated image obscures a lack of substance. The coronavirus crisis was a test that he couldn't spin away but PR is really all he knows. It has seemed from the start that he's thoroughly overwhelmed by circumstances and has frozen up like a deer in the headlights.

And having settled on a remarkably self-destructive strategy early on, Trump has taken virtually the entire Republican Party--and the broader conservative movement--with him. They've persistently downplayed the pandemic, cheered all of Trump's claims about miracle cures and portrayed those popular public health measures as acts of tyranny. It's an example of the deference they've given Trump throughout his time in office, but it's important to keep in mind that isn't only a result of their instincts. They are feckless in large part because Trump has wielded the most effective tools of quelling dissent within his own party of any president in modern history. Not only can a tweet storm from him lead to elected Republicans being ousted in primaries, but it also unleashes a torrent of abuse from his belligerent hardcore base.

The enduring irony of this bizarre election cycle is that Trump decided early on to wish the pandemic away in order to prop up the markets and maintain his positive ratings on handling the economy, and if he'd taken it seriously would probably be in a much stronger position today. It isn't the only reason that he's running a historically awful campaign, but it's a big one.

Trump campaign invents a foreign policy debate and then whines when it doesn't happen

Donald Trump really doesn't want to talk about his regime's catastrophic mismanagement of the Covid-19 pandemic. He is desperate to shift the conversation to #HunterBidenghazi, and has always run against the press with as much zeal as he does against his political opponents.

So on Monday, campaign manager Bill Stepien--Trump's fifth, and the second to not be arrested--sent a scathing letter to the non-partisan Presidential Debate Commission accusing them of bias and expressing outrage that the affair would not focus on foreign policy. "We write with great concern over the announced topics for what was always billed as 'The Foreign Policy Debate' in the series of events agreed to by [the campaigns] many months ago," he wrote.

If you don't recall reading anything about the third debate focusing on foreign policy before yesterday, you are not alone. As The New York Timesreports, "in some campaign years, the third presidential debate has focused on foreign policy. But the debate organizers did not announce such a plan in 2020, saying that the third debate would mirror the format of the first, with six subjects selected by the moderator."

This isn't a matter of Stepien making an assumption based on past election cycles. Every detail of these debates were exhaustively negotiated by the campaigns months ago. But in this world of post-truth politics, the campaign did not hesitate to baldly lie in order to advance their grievance-based campaign.

And while it's clichéd to draw comparisons to Orwell, the conservative media ran with the narrative and millions of Trump supporters are now convinced that the debate was always supposed to be centered on foreign policy and that the Presidential Debate Commission changed it up at the last moment in order to help Joe Biden.

Here's the simple truth about the fake Hunter Biden scandal Team Trump wishes was a 'smoking gun'

Donald Trump is trying hard to recreate the perfect storm that landed him in the White House in 2016 despite being the most unpopular candidate in the modern polling era. That year, the Clinton campaign's hacked emails were dribbled out over the final six weeks of the race. There wasn't much to them, but internal campaign communications tend to be frank and are easily mined for scandalettes. Having established the storyline that Clinton was as corrupt as Trump, they provided a steady stream of stories with "emails reveal" in the headlines which served to reinforce the right's narrative.

We can expect a similar stream of stories of ostensible "smoking guns" stemming from Hunter Biden's emails (whether hacked or fabricated) to come our way in the final weeks of this race. And some people who want to see themselves as fair will inadvertently amplify the right's preferred narratives by assuming that there must be something there.

So it's very important to keep in mind that the "scandal" is supposed to be that then-Vice President Joe Biden pushed for the removal of Ukraine's top prosecutor, Viktor Shokin, to stave off an investigation into Burisma Holdings--the Ukrainian gas company whose Board Hunter sat on--in order to protect his son. It is supposed to be a story about conflict of interest--of the elder Biden using the office of the Vice Presidency to help his son.

There is not a shred of truth to those claims. The effort to get Shokin fired "was prompted by a push for anti-corruption reforms developed at the State Department and coordinated with the European Union and the International Monetary Fund," The Washington Post reported. And according to CNN, a bipartisan "letter from 2016 shows that Republican senators pushed for reforms to Ukraine's prosecutor general's office and judiciary, echoing calls then-Vice President Joe Biden made at the time."

Shokin was corrupt, and that was a problem. Vitaliy Kasko, a former deputy of Shokin's who resigned over his boss's habit of stymieing corruption probes, told Bloombergthat Shokin was not investigating Burisma during the period in question. "There was no pressure from anyone from the U.S. to close cases against" the firm or its owner. "It was shelved by Ukrainian prosecutors in 2014 and through 2015," Kasko said. And Daria Kaleniuk, a prominent Ukrainian anti-corruption crusader, told The Washington Post that "Shokin was fired not because he wanted to do that investigation, but quite to the contrary, because he failed that investigation."

Without some impropriety on Joe Biden's part, Hunter Biden's business ventures aren't a story. He isn't running for office. Like many, if not most children of the powerful, the younger Biden leveraged both his family name and the connections he'd made at Yale to land various business deal and secure a cushy, high-paying position on a corporate board. Both Hunter and Joe Biden have acknowledged that associating himself with a shady Ukrainian gas company--as opposed to, say, a reputable American or Western European firm--was an error of judgment, but it was neither illegal nor unethical. This isn't a meritocracy, and this is one way that wealth and power are reproduced from one generation to the next. It's distasteful and unfair, but that's a class issue, not a scandal. Hunter isn't running for office and his judgment, or lack thereof, isn't a matter of public concern.

Joe Biden spent years in the Senate, and year after year he ranked among the least wealthy members of that body. We know how he came into his wealth--mostly through a multi-million dollar book advance and speaking gigs after leaving office. Biden may not be everyone's cup of tea, but there's no evidence that he's corrupt.

It's been one faceplant after another as Trump and the GOP try to recreate 2016's perfect storm

Donald Trump is very, very bad at politics. In 2016, he lost the popular vote in both the GOP primaries and the general election. His net approval rating (approval minus disapproval) in FiveThirtyEight's average went underwater on his 15th day in office, and has remained right around -10 ever since. He's hemorrhaged support among women, college-educated whites and even white Evangelicals. And he's trailed Biden--and, during the Democratic primaries, all of Biden's rivals--for the entirety of the race. He's currently by a historic margin for an incumbent.

In 2016, he got very, very lucky. With 45 percent of the GOP primary vote, he beat a fractured, hapless field of establishment candidates who never figured out how to deal with him. Democrats nominated a woman whom the right had spent 30 years softening up and was widely distrusted by the left flank of the Democratic Party. A credulous media that thought he had no chance of winning harped on every baseless Clinton controversy his campaign stirred up. Wikileaks dribbled out his opponents' hacked emails for the final six weeks of the campaign. And then, 11 days before voters headed to the polls, then-FBI Director James Comey delivered the coup de grâce by violating FBI protocols and announcing that he was reopening an investigation into Clinton's emails, which proved decisive in the Rustbelt. It was a perfect storm.

Now, as he seeks re-election amid a historic plague and after losing more jobs than any president on record, Trump and his party are clearly overwhelmed. They can't run on their record--at least not without departing from reality-- so they've been trying desperately to get the old band back together and recreate the conditions that snuck them into the White House the last time.

It's not going well.

Trump and his supporters had pinned their hopes on reprising Comey's role in 2016 on an investigation into the roots of the Russia probe by US Attorney John Durham yielding arrests before the election. Last week, Trump was reportedly apoplectic when Attorney General Bill Barr announced that Durham would not wrap up his work before November 3. And he wasn't alone. "This is the nightmare scenario," a GOP congressional aide told Axios. "Essentially, the year and a half of arguably the number one issue for the Republican base is virtually meaningless if this doesn't happen before the election."

Then on Wednesday, Rupert Murdoch's New York Post tried to get the kind of traction former Breitbart editor Peter Schweizer enjoyed with his 2016 book, Clinton Cash, which spawned the now-thoroughly-debunked Uranium One "controversy." This story, which alleges that emails prove Hunter Biden leveraged his father's connections for something or another--something Burisma-related--comes complete with an email server, or at least a hard-drive.

But while The New York Times, The Washington Post and CNN all laundered and added credibility to Uranium One, this one's landed with a thud. The Times' Maggie Haberman earned so much scorn on social media for credulously tweeting about the story that she later tried to redeem herself by noting some of its obvious flaws and Facebook limit its reach on their platform.

This followed a similarly high-profile faceplant by Sens. Ron Johnson and Chuck Grassley when they tried to weaponize Hunter Biden's work with Burisma and ended up on the defensive after taking fire for disseminating Russian disinformation.

Also on Wednesday, an investigation into Obama officials "unmasking" the identities of Americans caught in foreign surveillance operations that the right has long promised would blow the lid on their silly "Obamagate" conspiracy theory ended with a fizzle when John Bash, the US attorney William Barr tapped to oversee the probe (who left the DOJ last week), not only failed to bring charges against anyone but didn't issue a report.

That was an unhappy end for a line of attack that the GOP has been developing for years, most famously with Rep. Devin Nunes' infamous "memo" that was chock full of nonsense and widely greeted with appropriate derision.

The big difference in how these contrived scandals played out is that in 2016, they were treated like legitimate controversies while in 2020, the regime's clumsy attempts to drop contrived opposition research into the race, some of it originating with adversarial foreign actors, has become a persistent storyline in itself.

And of course, all of this follows Trump's impeachment for attempting to coerce the Ukrainian government to lend weight to a line of attack that has gone nowhere. That's a big difference from 2016, when he asked Russia to produce Clinton's emails, they obliged and he won the Electoral College.

The efforts by Trump and his allies to recreate the conditions that allowed him to sneak into the White House despite winning almost 3 million fewer votes than Clinton were always doomed to fail. Voting for Trump in 2016 was an experiment. Many believed he'd take the job seriously, and be constrained by his staff and Republican lawmakers. Some bought his promises on trade and immigration.

This time, he is a known quantity. Even before the pandemic, voters had seen what Trump's style of governance looked like and most of them don't like it. Now, with the death toll resulting from his bungling of Covid-19 approaching a quarter-million, nobody who wasn't already supporting him could even care about investigations stemming from the last election or Joe Biden's son acting like a typical child of DC's power elite.

Trump needed to reach beyond his base this year, and he's way behind in this race because it turns out that he doesn't have a different set to play and is just recycling his old hits.

Trump destroyed the legitimacy of the judiciary by trying to entrench far-right minority rule

Late Monday night, after the first day of Amy Coney Barrett's nomination hearings had wrapped up in Washington, a three-judge panel of the 5th Circuit Court of Appeals overturned a lower court and gave a green light to Texas Governor Greg Abbott's order limiting the number of drop-boxes for absentee ballots in the Lone Star State to one per county. The result is that big, urban counties where Democrats are competitive--Harris County (Houston), Dallas County, Tarrant County (Fort Worth), Bexar County (San Antonio) and Travis County (Austin)--will each have a single drop-box for between one and five million residents just like the 87 rural counties in Texas that have fewer than 10,000 residents.

The judges who issued the 3-0 ruling were all appointed by Donald Trump. Their average age is 49.7. One of them, James Ho, was profiled by NPR in a piece titled, "Legal Opinions Or Political Commentary? A New Judge Exemplifies The Trump Era." The panel found that Abbott's order had actually increased voters' access to the ballot box. Up is down in this packed federal judiciary.

As a result of Republicans' unprecedented blockade of Barack Obama's nominees, he was only able to appoint three judges to the 5th Circuit during his 8 years in office. Trump has appointed six in under four years. When Trump won the Electoral College, he tapped Ho--along with the other members of the panel that ruled on Monday night, Don Willett and Kyle Duncan--to fill three of the 116 vacancies on the federal bench that Mitch McConnell and his caucus had held open for the final years of Obama term in office.

With Barrett's confirmation barreling along, it's likely that the last guardrails will be removed from the nation's highest court. Chief Justice John Roberts' concern for the legitimacy of the institution will no longer be an effective constraint on a majority that includes Justices Barrett, Alito, Thomas, Gorsuch and Kavanaugh. Those justices are now poised to relitigate broad swaths of what had been long-settled law.

The last shreds of the Court's legitimacy as a politically neutral body will soon be torn apart. It will be the culmination of the GOP's long campaign to counter demographic headwinds by insulating itself from democratic accountability--through extreme gerrymandering, voter ID laws and other means of suppressing minority votes and turning the federal judiciary into a third political branch dominated by Republican appointees.

The result will be intolerable in a democratic republic, and if Democrats win the White House and Senate, the most pressing question they'll face is how a legitimate, democratically-elected government should handle a judicial branch packed with young, activist jurists with lifetime appointments to the bench and a clear hostility to every aspect of the Democrats' agenda. Something must break.

Joe Biden says he is "not a fan of court-packing," but a campaign is underway, Barrett hasn't yet been confirmed and if she is, it won't only be the left flank of the Democratic Party advocating for structural reform of the federal courts. There would be an intra-coalition debate if Dems find themselves with unified control next year, and with the Republicans' relentless destruction of the norms surrounding judicial appointments, ideas that used to be considered radical--like expanding the Court, or rotating justices back and forth from the appellate courts--are fast becoming mainstream, liberal propositions.

I favor expanding the Court in keeping with Republicans' philosophy that a party can and should do anything within the bounds of the Constitution to advance its agenda--or to create a deterrent against that kind of thinking. But that shouldn't be the end of the conversation. Last year, I wrote about a number of different potential reforms that would not only rebalance the courts over the near-term, but also lower the temperature of nominations in the future and in some cases, limit the judicial branch's power to veto laws enacted by the elected branches.

All of them carry some risk. But the danger of living in a country with entrenched rule by a far-right minority party is much greater.

Here's the truth behind the Republicans' big lie about 'court-packing'

Since shortly after the death of Ruth Bader Ginsburg, Republicans have said that they will confirm her replacement just days before or after the election, after blocking Merrick Garland for 8 months in 2016, because they have the power to do so. Senate Majority Leader Mitch McConnell told Fox News, "this Republican Senate was elected for a term that ends in January of next year. The president was elected for a four year term that ends January 20th of next year. There are no reduced constitutional prerogatives during either of our tenures." The Constitution allows it, so for them it is self-evident that they will do it. Norms, public opinion and the justifications they offered for not even giving Garland a hearing four years ago don't enter into the picture.

But as soon as reporters started asking Joe Biden and Kamala Harris about whether they planned to expand the Supreme Court in response--which has become 2020's version of "but her emails"--they immediately changed their tune, decrying the horrors of violating the unwritten norms of democratic governance. When Biden parried a question about court-packing (poorly, as I wrote last week), Commentary'sNoah Rothman complained that not responding to the hypothetical was "contemptuous and unacceptable," because adding justices would "fundamentally alter[] the civic compact."

In response to the question, Biden offered a common refrain among Democrats. "Look, the only court packing is going on right now," he told reporters. "It's going on with the Republicans packing the court now." And this is true in a broad sense. Republicans mounted an unprecedented blockade of Barack Obama's nominees to the federal appellate courts, and then in 2016, they kept an eight-seat Supreme Court until Donald Trump managed to win the Electoral College. Before the election, some of them vowed to keep it that way throughout a Clinton presidency if she had won. They then packed the lower court vacancies they'd created with young judicial activists and installed Neil Gorsuch on the highest court. It's court-packing by another name.

But the hypocrisy runs even deeper. Because while Senate Republicans haven't actually expanded the number of seats on the Courts, their co-partisans in state governments have done so repeatedly in recent years.

In 2016, Georgia Governor Nathan Deal signed a bill expanding his state's supreme court by two members, shifting the balance of power from a 4-3 majority of Democratic appointees. It was Republicans' third attempt to do so over the previous ten years. That same year, Arizona Governor Doug Ducey followed suit, even though he was elected with a conservative majority on the court. He also gamed a state commission that recommend judicial candidates for the Governor to choose from. As in Georgia, Ducey's expansion was the culmination of five years of efforts by Republicans in the state legislature.

According to Duke University legal scholar Marin Levy, three other states have moved to expand their highest courts without success over the past 13 years. In two of the three, Republicans drove those efforts in response to specific rulings they didn't approve of--the Florida GOP was incensed when their Supreme Court ruled 5-2 that their school voucher program was unconstitutional, and Iowa Republicans were outraged by a decision in favor of marriage equality.

Levy also noted that there have been five efforts to reduce the number of justices on state supreme courts over the past decade. Four of them--in Oklahoma, Montana, Washington and Pennsylvania--were undertaken by Republicans, either as acts of retribution for rulings they disagreed with or to shift the balance of power on the bench, and one, which would not have tipped the ideological balance if it had been successful, was driven by a Democrat in the Alabama legislature.

In the two states where Republicans did in fact expand their highest courts, they argued that they were merely doing so to deal with rising caseloads as their populations grew. It's worth noting, then, that when the number of justices on the United States Supreme Court was set at nine in 1869, the country's population was around one-tenth of what it is today. There were nine lower court circuits at the time, with one Supreme Court justice overseeing each; today there are 13 circuits. An expansion is long past due.

So keep in mind that while Republicans are now preemptively warning that Democrats would "destroy the Supreme Court" by changing its number of seats, they have attempted to do the same thing eight times at the state level in the past 13 years--and succeeded twice.

There are a number of good arguments for expanding the Court. A critical one is that it might serve as a deterrent to a Republican Party that has adopted the view that it can do anything within its constitutional powers without regard to longstanding norms and assume that Democrats can be cowed into not following suit.

Here's how Trump's 'court-packing' attack on Biden could blow up in his face

Given how brazenly Republicans blocked Barack Obama's judicial nominees on an unprecedented scale and then packed the federal courts with young, conservative judicial activists, it was disappointing to see Joe Biden and Kamala Harris both dodge the question of whether they would expand the Courts if they win and Senate Republicans confirm Amy Coney Barrett in a shambolic process. The question is a layup that they should have been able to convert into a slam dunk. Evading it made them seem defensive when public opinion is clearly on their side.

Here's how they should handle such questions:

All options are on the table

One of Trump's favorite responses to questions that he doesn't want to answer is, "we'll see what happens." Sometimes he adds that he doesn't want to reveal his hand prematurely. Democrats should follow suit.

"We will be watching closely to see what happens. If Republicans go against the will of the American people, who clearly think the winner of the election should fill that seat, and rush through a nomination process without properly vetting a nominee for a lifetime position on the Court, then all options are on the table.

"We don't know who will hold the White House and Senate next year, so there's no point in discussing a hypothetical. What I will say now is that we are not going to allow a partisan Supreme Court to strip health coverage from 20 million Americans, remove protections for people who have pre-existing conditions, take away a woman's right to choose or limit citizens' right to vote. We'll keep all of our options on the table."

They should also broaden the conversation beyond expansion.

"And when I say 'all options,' I mean all options. If they go through with this charade of a confirmation, we'll look at rebalancing the Court, but we'll also look at term limits and perhaps rotating justices from the lower courts to the Supreme Court. Right now, the GOP's reckless disregard for the will of the people makes it clear that the stakes for seating a justice have just become too high. But there are different ways we can go about lowering the temperature a bit and making the process less polarizing. Again, our priority is protecting Americans from a Court stacked with Trump's judicial activists."

Focus on the corrupt process

Keeping their options on the table shifts the focus to what might factor into a decision to rebalance the Court. And that's an opportunity to talk about Republicans desperately rushing through a nominee with limited hearings while two members of the Judiciary Committee are unable to participate in hearings after testing positive for Covid-19.

"Look, according to The Congressional Research Service, the average time to get a nominee through the process is 2.2 months. But those confirmations didn't take place in the middle of an election season with Congress in recess because of the pandemic. There just isn't enough time on the Senate calendar to do this right. There isn't enough time for the American people to learn what they need to about Amy Coney Barrett and her judicial philosophy. There's a reason we hold bipartisan hearings and thoroughly vet nominees before giving them a lifetime appointment on the bench. They're making a mockery of this process and that's why we're going to keep our options open."

Invoke the Ducey Rule

In 1992, then-Senator Joe Biden said in a floor speech that a Supreme Court nomination shouldn't be considered during a presidential election. It was June, and there wasn't a vacancy on the Court at the time. He was essentially arguing against the Senate doing precisely what Mitch McConnell is attempting to do right now. But in 2016, McConnell and Senate Republicans distorted those comments to claim that they applied to blocking Merrick Garland's nomination despite the fact that Barack Obama nominated Garland in mid-March, almost 8 months before that year's election. The "Biden Rule," as they have called it ever since, was (and is) a complete lie.

Shortly after his election in 2015, Arizona Governor Doug Ducey added two seats to his state's Supreme Court and filled them with conservatives whose views aligned with his agenda. It wasn't an exact parallel with Democrats rebalancing the Court if they win next month--Ducey already had a conservative majority on the court and Arizona's Governor has to pick from a list of judges submitted by a commission filled with allies--but the Ducey Rule would be a lot more honest than the Biden Rule was. (Georgia Governor Nathan Deal also expanded his state's Supreme Court by 2 seats that year.)

Democrats should invent the Ducey Rule (or the Deal Rule) and use it to reframe the question more broadly and make it about what response to the GOP's relentless efforts to control the federal judiciary might be appropriate. "Look what you made us do" has long been a common justification for Republican norm-breaking.

"Let's get one thing straight: Democrats don't want to mess with the Court. If we do end up rebalancing the Court or instituting other reforms--if we do apply the Ducey Rule on the federal level--it will only be because Republicans have been packing the Courts for a decade. We've never seen anything like Mitch McConnell's blockade of Obama's nominees. That left so many open seats that the federal judiciary was barely able to function. Cases stacked up. And then Trump, who lost the popular vote by almost 3 million and was never given a mandate by the American people, filled those vacancies with justices that supported his agenda to kill the Affordable Care Act and limit Americans' civil rights. Many of them were rated "unqualified" by the American Bar Association. That's the only reason why anyone's even talking about expanding or rebalancing the Court.

"Again, we will do whatever it takes to protect the American people."

The stars may be aligned for Trump to be prosecuted

To say that the US doesn't have a great record of holding its elites accountable would be a gross understatement. So while former prosecutors and other legal expertshave argued that Donald Trump faces significant criminal liability once he's out of office, those analyses have been greeted with quite a bit of skepticism. People with Trump's connections and resources are hardly ever punished so it's understandable, especially given Joe Biden's consistent promise to try to "heal" a fractured nation.

But Trump isn't a typical member of America's ruling class, and while a 75-year-old former president with the means to afford a team of high-power lawyers may not ever actually face the inside of a prison cell, there's a better chance that he will be convicted after he leaves office than some people believe.

Ideally, if Biden wins the presidency, he would appoint a Special Counsel staffed entirely with Republicans to investigate crimes Trump is alleged to have committed in office. Biden's administration would emphasize that holding Trump accountable is something Republicans need to do for the good of their party as well as the country and promise that they would have full autonomy from the White House and the DOJ to pursue the facts wherever they may lead.

But there's good reason to think that's unlikely, given that Democrats tend to be wary of "criminalizing" politics and would see going after a polarizing former president as setting a dangerous precedent. So Trump will probably never face federal charges for obstructing justice, coordinating with foreign powers to undermine the 2016 election, violating campaign finance laws or other offences related to his presidency. If history is any guide, he certainly won't be held accountable for any human rights violations committed on his watch either at home or abroad.

State-level prosecutions for financial crimes are another matter entirely. The Manhattan DA, Cy Vance, filed a motion recently which implied that his office was pursuing charges that may include tax evasion and banking and insurance fraud. Meanwhile, on Monday, after dodging a subpoena for weeks, Eric Trump invoked his Fifth Amendment rights rather than testify in a separate probe of Trump's businesses by New York State AG Tish James. There may be similar investigations underway in other states where The Trump Organization does business.

The crimes Trump is suspected of committing are easy-to-explain acts of fraud. He allegedly manipulated the values of his properties to defraud the IRS, banks and insurance companies. Those very crimes helped make the Trump family's fortunes; as The New York Times reported in 2018reported in 2018, Donald Trump was earning $200,000 per year from his father's tax fraud scheme as a 3-year-old and was a tax fraud millionaire by age 8.

Experts say that these kinds of offenses tend to be red-flags for money laundering, and there are a lot of questions about why Trump, who had previously done business with other people's money, suddenly went on a buying spree acquiring money-losing properties with cash several years back.

When powerful people do face consequences for violating the law, these are exactly the kind of tawdry financial crimes that often bring them down.

More importantly, state and local prosecutors in blue states would have powerful incentives to prosecute Trump. There are two reasons why our political elites often enjoy impunity. First, prosecutors guard their winning percentage, and people who can afford to drop millions on their defenses are more likely to be acquitted. Second, they tend to be well-connected. In many cases, they are reliable political donors.

But we should be as cynical about prosecutorial decisions as we are about the impunity that American elites typically enjoy. After four years of attacking blue states, Trump doesn't have a lot of friends in high places in states like New York or California. Prosecuting a historically unpopular authoritarian like Trump would be a career-making move in those states. It would make a prosecutor into an overnight star among their constituents and put their name on the national map. Professional ambition is probably the best reason to think that Trump may end up being the rare powerful political figure who pays a price for tax evasion and fraud.

While this isn't a prediction, the stars may align for the Trump Crime Family to see some "law and order" up close, from the other side of the system.

Let's admit it: Karma has finally come for Trump and his inner circle

Why should anyone respect the office of the presidency when the President* consistently makes it clear that he doesn't?

The question occurred to me when I saw conservatives whining about opponents of Donald Trump indulging in some Schadenfreude on social media over the news that Donald Trump testing positive for Covid-19. "Liberals on Twitter had a chance to show the country that they were bigger than hateful, petty politics," wrote some guy at Legal Insurrection. "They had an opportunity to rise above the nastiness and division," he lamented, but "they failed." The rest of this deep post is just a bunch of embedded tweets, some by conservative anti-Trumpers and many of them obviously intended to be lighthearted.

One can debate the degree to which Trump's policy agenda has departed from Republican orthodoxy (the answer is not by much on issues other than trade). But Trump's relentlessly nasty and consistently partisan rhetoric is unlike that of any president from either party. Whether it was Reagan or Clinton or the Bushes or Obama, presidents have always communicated with the public in a professional manner and took it as a given that after an election ends, their job is to govern on behalf of all Americans. That hasn't always been entirely true, but they have always comported themselves as if it were.

Trump has spent an enormous share of his time in office insulting Democrats--and also Republicans who don't show unyielding support for him--in crude, often childish terms on Twitter. And this open, infantile contempt for the opposition isn't limited to bloviating on Twitter and in press briefings. It consistentlymanifestsitself in policy.

Trump's supporters want to have it both ways, insisting that Trump's consistently abhorrent behavior should be ignored because it's just Trump being Trump and then turning around and demanding that we show respect for the office and conform to traditional norms of decorum. And regardless of how much hand-wringing they engage in over liberals refusal to be "bigger than hateful, petty politics," that is just not going to happen.

Of course, their rending of garments is even more dishonest in light of Trump's disastrous response to the pandemic, which has killed over 210,000 Americans, most of whom would be alive today if he had taken the threat of Covid-19 as seriously in public as he did in private conversations with Bob Woodward. This week, researchers at Cornell University released a study analyzing "38 million articles about the pandemic in English-language media around the world," and they found, as The New York Times reported, that "Trump made up nearly 38 percent of the overall 'misinformation conversation,' making the president the largest driver of the 'infodemic' — falsehoods involving the pandemic."

Trump may only suffer mild symptoms and have an easy recovery, but if he does become severely ill, it could save the lives of thousands of his supporters by signaling to them that they should take this pandemic seriously, wear a mask around others and comply with public health guidelines rather than seeing them as a nefarious plot to infringe upon their liberties. It could end up being the best thing he ever did for his base.

I'm one of those people who generally believes it to be unbecoming and bad for our democracy to revel in a political opponent's personal misfortune. But Trump has debased the presidency for four years, making it clear at every opportunity that if you do not support him than he does not work for you. His inability to care about anything but his own re-election prospects led directly to his gross negligence in responding to an outbreak that is projected to kill almost a quarter-million Americans by Election Day. For these reasons, it's OK to ignore the concern trolls and appreciate the karma of Trump and his inner circle contracting the disease that they've so recklessly tried to ignore.

Here are 5 reasons why Trump's taxes will actually matter in 2020

I've been a consistent proponent of the 'lol, nothing matters' school of analysis of the 2020 election. I've noted that voters are unusually locked in this cycle, that Trump's approval rating and the head-to-head polling have been remarkably stable and that his base consumes a diet of conservative opinion journalism and Facebook memes that insulate them from bad news for their guy.

And if one defines "mattering" as a dramatic cratering support for Trump, that will indeed prove to be the case with Trump's tax returns. This isn't an Aaron Sorkin script, and the scales won't suddenly fall from eyes of MAGA Nation upon discovering that the brilliant businessman they thought they were supporting is in fact a deeply-indebted tax swindler.

But The New York Times getting its hands on Trump's taxes is going to matter if we define that word realistically. The Supreme Court would not have had an opportunity to decide the 2000 presidential race if it hadn't come down to several hundred votes in Florida. Recent Senate contests have been settled by smaller margins and could again be this year. Donald Trump won the Electoral College in 2016 by 77,000 votes across three states—out of 136 million ballots cast. If just a small share of Republicans living in the right places decide to stay home, it could have an outsized impact on the outcome of the election.

Consider five reasons why Trump's taxes becoming public is likely to matter.

First, Sunday's blockbuster scoop is just the beginning. In a memo to New York Times staff, publisher AG Sulzberger wrote, "we are continuing our reporting and will publish additional stories in the weeks ahead." Other outlets will, too.

Trump's taxes contain many threads to pull on, and reporters will no doubt produce a steady drip, drip, drip of bad news for Trump over the final weeks of the election. One big reason why most negative stories about Trump don't move the needle is that they get overtaken by other news and don't have an opportunity to stick. This one is almost sure to be sticky as reporters connect the many dots contained in Trump's previously opaque finances.

Second, Trump would very likely lose the election if it were held today, and desperately needs to expand his voter base beyond the 43 percent who currently support him, according toFiveThirtyEight's average, in order to have better than a marginal chance of winning the Electoral College. These stories are going to rattle Trump and take him off of his preferred messages about his Noble Prize nomination or Biden using performance enhancing drugs or anitifa menacing the suburbs or whatever.

Trump being broke, in debt up to his ears and facing considerable criminal liability also cuts straight to the heart of the image that Trump has so carefully cultivated over the years. It's exactly the kind of controversy that Joe Biden can exploit both during the upcoming debates and in the ad wars.

Third, it puts Republicans across the country and up and down the ballot in the uncomfortable position of having to defend their unwavering support for a tax swindler. And each new revelation will bring about a new round of awkward questions that they'd rather not have to tackle.

Fourth, the fact that Trump is desperate for cash, with close to a half-billion dollars in personally guaranteed loans coming due--and possibly a huge tax bill arriving at some point in the near future—paints many stories that the media have largely shrugged off in a new light.

When you talk about violating the Emoluments Clause, people's eyes glaze over, but when you point out that Trump has spent over one year of his first term visiting or staying at his own properties, and charged taxpayers unknown sums for rooms for security and staff on each occasion, it takes on new salience. The same is true for all the business and political organizations--and foreign entities--that have dropped massive sums at his DC hotel while trying to curry favor with Trump.

Finally, not everything can or should be boiled down to partisan politics. It matters that we have yet more evidence that the President of the United States is crooked. It's important that the American people know the truth even if it doesn't swing a single vote.

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There are always dark warnings coming from the fringes that an incumbent president may refuse to honor the results of a losing election and pull off some sort of coup to remain in power. But with Donald Trump, such concerns are mainstream, and for good reason. Claiming widespread fraud, Trump rejected the results of the popular vote when he won the White House in 2016. His former consigliere, Michael Cohen, has said that he doesn't believe that Trump would leave peacefully if he loses. Trump has been preemptively lying about absentee balloting being rife with fraud for months, and just last week, White House Press Secretary Kayleigh McEnany laid the groundwork to claim that ballots counted after November 3 aren't "fair," telling Fox News that determining the outcome on Election Night is "how the system is supposed to work."

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