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The Trailer: Seven days to go, 14 Senate seats up for grabs

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In this edition: The post-SCOTUS Senate picture one week out, new polls in key states and questions about conservative judges stopping some ballots from being counted.

Turn in your mail ballot already. This is The Trailer.

For Republicans, the confirmation of Supreme Court Justice Amy Coney Barrett was the end of an epic saga, an achievement that would stand for a generation — something Democrats “won't be able to do much about.”

Democrats preferred to think of it as a cliffhanger, with the next twist coming Nov. 3. A net gain of three Senate seats for their party, plus a presidential victory, would give tie-breaking power to a Vice President Kamala D. Harris and a quasi-majority to Democratic Leader Charles E. Schumer. A net gain of four seats would deliver a clear majority, at a moment when liberal anger and demands to break the filibuster and expand the courts are peaking.

What's in play? It's more than either party expected at the start of this cycle. In three races, challengers entered with leads and never lost them: Republican Tommy Tuberville in Alabama, Democrat John Hickenlooper in Colorado and Democrat Mark Kelly in Arizona. The first two started with an advantage, thanks to the demographics and partisan preferences of their states; Kelly, already well-known in the state through his gun safety activism with wife Gabrielle Giffords, benefited from recent Democratic gains and a surge of early money.

If those seats changed hands, and nothing else, Republicans would enter 2021 with a 52-to-48 majority, identical to what they had at the start of the Trump era — though since then, conservatives have taken over seats held for years by Republican moderates.

Four seats that flipped from blue to red in 2014 are seen as off the map this year. Sen. Mike Rounds (S.D.) is facing a former state legislator with no national Democratic support; Sen. Shelley Moore Capito (W.Va.) is ignoring Bernie Sanders-inspired activist Paula Jean Swearengin; Sen. Bill Cassidy (La.) is in an all-party primary, where Shreveport Mayor Adrian Perkins is trying at least to force a runoff; and Sen. Tom Cotton (Ark.) has a Libertarian opponent, but not a Democratic one, after the party’s nominee quit too late to be replaced.

That leaves 11 more races, in addition to the three races with clear front-runners that super PACs and third-party groups see as competitive enough to deploy some resources. Eight are in states the president carried four years ago: Alaska, Georgia (where there are two races on Nov. 3), Iowa, Kansas, Montana, North Carolina, South Carolina and Texas. Three are in states he didn’t: Maine, Minnesota and New Mexico. And in Mississippi, where Democrat Mike Espy is in a rematch with Sen. Cindy Hyde-Smith, outside groups have stayed away, but the Republican has lagged in last-minute fundraising.

What’s changed in the final month? There's been a surge of spending, but no real changes to the map, apart from a small buy by the Democrats’ Senate Majority PAC in New Mexico; the race wasn't attracting much outside money other than that. But most of the money has gone elsewhere, with tens of millions of dollars flowing from the Senate Leadership Fund, the Senate GOP’s super PAC, and the Senate Majority PAC into the most contested races, while some of the new spending from Future Forward, a brand new pro-Democratic PAC, flowing into races where Republicans are favored, like Texas.

But events have barely moved the needle. The death of Justice Ruth Bader Ginsburg and the rapid, controversial confirmation of Justice Amy Coney Barrett energized small-dollar Democratic donors but didn’t have the same effect for Republicans. As campaign-finance-watcher Rob Pyers pointed out this week, a Republican challenging Rep. Maxine Waters (D-Calif.) — a race that’s functionally impossible for the party to win — raised more in the first two weeks of October than at least four Republican senators in tough races.

The gist: Democratic candidates have raised more money than Republicans in every race targeted by both parties. Even Sen. Gary Peters (Mich.), the only Democrat outraised by his challenger in several quarters, leaped ahead of Republican John James in the third quarter and the first two weeks of October. Both parties have well-funded super PACs, and last-minute donations to the SLF have boosted some Republicans who were going to be outspent. Nearly $1 billion has been spent by independent groups so far, and final reservations are going to crack the 10-figure mark.

What are Republicans and Democrats running on? That’s the key difference between this cycle and recent years when Republicans triumphed. Six years ago, Republicans gained nine seats in the Senate, the biggest gain for either party in decades, thanks to a perfect political storm. The Affordable Care Act was unpopular; they ran on repealing it. Isolated cases of Ebola, brought by physicians returning from an outbreak in Liberia, sparked an 11th-hour panic and questions about President Barack Obama's ability to lead. And Democratic turnout fell off a cliff.

Turnout is supercharged for both parties this year, and Democrats have basically updated their 2018 messaging for the pandemic. They endlessly emphasize health care, from expanding the Affordable Care Act to promising more coronavirus relief. The vast majority of Democratic ads not about the candidates themselves are about health care, in sync with the party’s strategy in the Barrett hearings. The ongoing lawsuit to repeal the Affordable Care Act, the third to reach the Supreme Court, is by far the biggest topic in Democratic campaigns.

Republicans have responded in three ways. When a Democrat has damaged himself, as North Carolina's Cal Cunningham did with an extramarital affair — or, less sensationally, Kansas Democrat Barbara Bollier freezing when asked what she liked about the Trump tax cuts — they've used paid media to remind voters of it. They've run ads promising to protect rules that prevent health insurers from discriminating against people with preexisting conditions, with Sens. Cory Gardner (Colo.) and Thom Tillis (N.C.) specifically touting their support for legislation that urges insurers to protect those customers, though it wouldn't be enforceable without the ACA. And they've accused Democrats, if they win, of empowering more liberal forces that would pass Medicare-for-all.

“The Democrats that you will empower want more government control, want socialized health care,” Sen. Dan Sullivan (Alaska) said in his last debate with Democratic nominee Al Gross. “Public option? We want the patient to have the power. Transparency. No surprise medical billing. Things like that.”

Warning that total Democratic control of Washington would empower the left is a key Republican message in the closing week. The messaging's the same in each state: Democrats in Washington encouraged these candidates to run, Democrats from outside their state poured money into their campaigns, and it's only natural that they'll owe something to those donors, even if they say they disagree with left-wing priorities.

“Theresa Greenfield won’t say where she stands,” warns an ad from Sen. Joni Ernst (Iowa), “but the millions being spent to elect her from liberal extremists who will defund police, raise taxes and destroy Iowa jobs tells you all you need to know.” Washington's represented not by Joe Biden, but by New York Rep. Alexandria Ocasio-Cortez, the breakout star of 2020 Republican advertising.

How does the top of the ticket play into this? It's plenty, but also less than you'd expect. In public polling, there is no competitive race where support for the parties' presidential candidates diverges from support for Senate candidates by more than a few percentage points. That's true in races where more than $100 million has been spent by outside groups, like North Carolina's; it's true in races where the math has kept most big money on the sidelines, like the Minnesota race between Democratic Sen. Tina Smith and former Republican congressman Jason Lewis.

In the final days, one Republican has acknowledged the straight-party ticket problem; Michigan's John James is running an ad accusing Democrats of saying a “39-year-old black man from Detroit is Donald Trump,” responding to endless advertising that links him to President Trump. (Democrats' play in Michigan, all year, has been to remind voters of James's full-hearted support for Trump in 2018.)

In New Mexico, which hasn't sent a Republican to the Senate since 2002, Republicans nominated former TV meteorologist Mark Ronchetti, whose campaign has resembled James's, sketching out a choice between a bipartisan pragmatist and a loyal vote for Democrats.

“On health care, do we protect preexisting conditions and lower costs?” Ronchetti asks in one ad. “Or do we have a complete government takeover of health care?” That’s been an effective message in an uphill year for New Mexico Republicans. The Albuquerque Journal Sentinel endorsed Ronchetti, expecting him to bring a “work-across-party lines approach” to the Senate, while worrying that Rep. Ben Ray Luján would be a vote for whatever Democrats proposed, and worrying in particular that he could end the filibuster. The problem for Republicans everywhere else: Luján is the only Democrat in a competitive race who has endorsed Medicare-for-all.

When will we know who won the Senate? That question isn't being asked too often, but it's far likelier that control of the Senate is uncertain after Nov. 3 than the result of the presidential election is. Alaska won't count all of its mail ballots until Nov. 18. Georgia is likely to have one January runoff, for the seat now held by Sen. Kelly Loeffler, and it could have two if Sen. David Perdue and challenger Jon Ossoff both fall short of 50 percent next week — something that could take days to determine. Louisiana and Mississippi aren't giving Republicans any nightmares, but both could go to runoffs, too. And the results in Arizona and Michigan, if races are close there, could be unclear until the end of next week.

Reading list

“The end of democracy? To many Americans, the future looks dark if the other side wins," by Marc Fisher

Apocalyptic thinking in the final days.

“The two Americas financing the Trump and Biden campaigns,” by Shane Goldmacher, Ella Koeze, Rachel Shorey and Lazaro Gamio

What Zip codes tell us about the money race.

"Jaime Harrison bets on ‘New South’ coalition in his against-the-odds bid to oust Sen. Lindsey Graham," by Robert Samuels

Inside South Carolina's first competitive Senate race in 16 years.

“Caution and confidence keep Biden close to home in final days,” by Natasha Korecki and Marc Caputo

Why the Democrat isn't trying to match Trump event-for-event.

“Angry Democrats try to focus on health care as they watch Barrett confirmation,” by Paul Kane

The backup strategy for a court battle the minority party couldn't win.

“Trump campaign tones down immigration messages that dominated 2016 election,” by Sabrina Siddiqui, Michelle Hackman and Chad Day

Remember “build that wall”?

“New voters and Trump antipathy converge to make Sun Belt competitive — maybe for real this time,” by Jenna Johnson and Arelis R. Hernández

Why Texas and Arizona are flirting with purple status.

“Michael Bloomberg to spend $15 million on TV ads for Biden in Texas and Ohio after seeing tight polling,” by Alex Samuels

A big cash infusion in states Democrats were nervous about spending in.

Voting wars

The first decision likely to face Justice Amy Coney Barrett will have been put on her desk by swing-state Republicans — and it could determine whether tens of thousands of ballots get counted, or don't.

As you read here Sunday, and as Mark Joseph Stern explains in Slate, Republicans in Pennsylvania and North Carolina were stymied in their attempt to overturn lower-court rulings that allow absentee ballots to be counted if they arrive a few days after the election, so long as postmarks prove they were sent before it. They filed petitions to challenge that in the past 100 hours, in the expectation that Barrett would join the court and join its conservatives to strike down more forgiving ballot rules.

They got some encouragement Monday, when the court declined to lift a lower (conservative) court's injunction against a plan to count Wisconsin ballots that arrived by Nov. 9. In his concurrence, Justice Brett M. Kavanaugh cited former chief justice William Rehnquist's assertion in Bush v. Gore that the court should have “respect for the constitutionally prescribed role of state legislatures” in situations in which legislators wrote one statute and judges wrote another. And he made an argument that rhymed with what the president says about Election Day: that states clearly wanted to count ballots quickly, not wait around for days and risk baseless conspiracy theories as more votes are counted.

“For important reasons, most States, including Wisconsin, require absentee ballots to be received by election day, not just mailed by election day,” Kavanaugh wrote. “Those States want 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. And those States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter.”

One idea in there, that ballots cast before Election Day but counted later would “flip” the election, terrified liberals. The president goes a lot further. “Big problems and discrepancies with Mail In Ballots all over the USA,” he tweeted Monday, appearing to react to a Fox News segment about absentee ballot controversies. “Must have final total on November 3rd.”

That's not how our elections have ever worked, and voting rights activists are wondering how much of it courts could take seriously. First, while state and local elections offices publish results as soon as they get them, nothing on election night is official; canvass boards will certify the votes weeks later. That process will include some number of ballots that weren't counted before, for some reasons that have nothing to do with mail delivery.

First, votes go uncounted or miscounted in the first tabulation. Machines can misread them, paper can snag, or the total initially calculated by election officials can be off. In 18 states, including the five where all votes are cast by mail or at drop boxes, voters can “cure” their ballots if they arrived and couldn't be counted — for example, if the signatures on their envelopes or ballots don't match what's on record with the state. In a few other states, where “curing” isn't the law, the process has been put in place for this year. Second, voters who show up to vote in person, and learn that they're either off the rolls or at the wrong location, can vote with a provisional ballot, which they can “cure” by proving, within a few days, that they were eligible to vote all along.

Millions of ballots fall into those categories, and as of now, tens of millions of ballots received by voters haven't been returned yet, putting them in the danger zone of late arrival. The vote count will change after Election Day 2020, just as it does after every election. Kavanaugh, one of three Bush campaign attorneys on the court, was part of a team that got more than 1,000 absentee ballots qualified in Florida weeks after the 2000 election, arguing successfully that errors with the ballots shouldn't disqualify them.

But the idea that voters deserve a quick election, digestible in one night of TV coverage, has persisted all the way into a Supreme Court order.

“There are no results to ‘flip’ until all valid votes are counted,” Justice Elena Kagan wrote. “And nothing could be more 'suspicio[us] or improp[er]' than refusing to tally votes once the clock strikes 12 on election night."

Ad watch

Joe Biden, “Rising.” In each one of the past four presidential campaigns, Democrats have put out a 60-second “closing message” for the final week, heavier on feel and optimism than on policy. Hillary Clinton’s final ad didn’t use her voice at all, opting for a montage of happy voters excited about some issue or another, to the sounds of Katy Perry’s “Roar.” Biden’s ad uses his voice exclusively, restating the broad themes he’s used since the start of the campaign. “This is our opportunity to leave the dark, angry politics of the past four years behind us,” he says. “I believe it’s time to unite the country.” There’s no direct mention of the president at all.

Joe Biden, “Inez.” Most Biden ads in the last stretch have ignored Trump, actually, but with an average American, usually the owner of a business or someone worried about health care. The takeaway here from a restaurant owner is meant to rebut the idea that Biden would shut down the entire economy if the pandemic worsened: “Everybody wants the economy to reopen. That has never been a question.”

President Trump, “Joe Biden Is In Hiding, Just Days From the Election!” The bulk of Trump campaign advertising recently has focused on the traditional Republican issue of low taxes, but unlike Biden, the Trump campaign spins videos out of the news cycle and is responsive to what's trending in ideological media. This is a return to a theme that got counter-evidence from Biden's well-received debate showings: that he is so obviously in decline that he can't be president.

Preserve America, “Sawmill in Scranton.” A super PAC created this year to help reelect Trump, and funded in large part by casino magnate Sheldon Adelson, Preserve America began its ad blitz by attacking Biden over his support for police, or alleged lack thereof; it's pivoted recently to hitting Biden on taxes and jobs. Here, a sawmill owner claims that Biden forgot about his roots when he went to Washington and “sold us out” by voting for free trade deals.

National Republican Senatorial Committee, “California Al.” The Senate GOP's main committee began investing in Alaska's Senate race as Gross, a physician, began to pile up donations. This is one of two “California Al” attack ads that tap into something that's frequently effective, with no ideology required: Knocking a candidate for having a home in another state. “Gross took the dividend while living in California,” the ad says, referring to the check cut from oil revenue that’s given to every Alaskan. Gross was born and raised in the state, but lived briefly in California while getting a degree.

Future Forward PAC, “Shake That Place Up.” Founded this year and quickly filled with money by Silicon Valley donors, Future Forward has poured into swing states with presidential ads and invested in some Senate races where there were blank spots in Democratic advertising. This is a straightforward character spot for MJ Hegar, the Democrat running for Senate, framing her race as a “career politician” against a “Purple Heart veteran.”

True Kentucky Patriots, “Brad Barron.” Democrats in two red states are running ads to promote conservative spoiler candidates in the hope that they could win with less than 50 percent of the vote, something they've decried when Republicans have done it. (In Montana, for example, Democrats successfully removed a Green Party candidate who'd gotten on the ballot with GOP help.) This ad in Kentucky never mentions Democrat Amy McGrath, but the PAC was created to help her, by promoting a fringe conservative candidate as the antidote to career politicians, like Mitch McConnell. “Sorry, Mitch. Thirty-six years is too long.”

House Majority PAC, “Arbor.” Democrats lost the race against Ohio Rep. Steve Chabot two years ago, in part, because their nominee had committed a campaign finance violation that dogged him for months. (He'd used resources from a county campaign to poll for a federal campaign.) This spot attacks Chabot for something that's legal but unpopular: paying a relative for campaign work. It's almost a stand-in for a story that evaporated before the election, a long-running investigation into a Chabot aide that didn't touch the congressman.

Elaine Luria, “Fix.” This is more typical of what the newest House Democrats have been doing, emphasizing the bills that actually made it out of Congress since they won, most of them in 2019. Luria fixes household appliances, chairs and other knickknacks, explaining (get it?) that she likes to fix things instead of getting rid of them. Most ads like this focus on the Affordable Care Act; here Luria credits her work to undo an unpopular part of the 2017 tax bill that her opponent, who she narrowly beat last time, had supported.

Poll watch

Presidential election in Texas (NYT-Siena, 802 likely voters)

President Trump: 47% (+1) Joe Biden: 43% (-) Jo Jorgensen: 3% (+2)

Since September, the last time this pollster surveyed Texas, the president has gained minimally with Black and Latino voters, while Biden has gained incrementally with White voters. The biggest movement for either candidate was seen among White voters without college degrees, whose net support for Trump shifted from 52 points to 44 points; the pollster also saw Trump turning a 15-point deficit into a two-point advantage around Houston, which other polls haven't captured.

Presidential election in Georgia (AJC-UGA, 1,145 likely voters)

Joe Biden: 47% (+1) President Trump: 46% (-2) Jo Jorgensen: 3% (-)

The Biden campaign's decision to send the candidate to Georgia today worried Democrats — never that hard to do — and sparked memories of Hillary Clinton sticking to a final stretch rally schedule that took her to Arizona even as polls showed her losing ground in the Midwest. But private polling in Georgia has looked a lot like this: Trump winning White voters by 38 points, Biden winning black voters by 72 points. and Biden winning voters of other races by 14 points. It's that White voter shift that worries Republicans, as Trump won that vote by 52 points four years ago, according to the exit polls.

Presidential election in Nevada (NYT-Siena, 809 likely voters)

Joe Biden: 49% (+1) President Trump: 43% (+1) Jo Jorgensen: 3% (-)

Republicans haven’t carried the Battle Born State since 2004, and both campaigns are sending candidates there in the final week, but these numbers show the president bumping up against a ceiling. The state’s competitive in large part because of a high number of White voters without college degrees. Trump won those voters by 24 points in 2016; he leads with them by 17 points here. Trump won White voters with college degrees by eight points last time and trails with those voters by five points now. A two-point improvement with Latino voters doesn’t erase those losses.

On the trail

Did Joe Biden forget the president’s name in an interview? No. Did he call Kamala D. Harris’s husband her “wife"? Yes. Did he ask an audience in Georgia, “Why am I doing this?” No again.

All three of those are based on things Biden did say over the past 48 hours, and all were clipped by the Trump campaign to share as viral videos. With both candidates on the stump, Democrats are responding mostly to Trump when he downplays the novel coronavirus; Republicans are taking their scissors to Biden clips to misleadingly portray him, as they have all year, as an old man who doesn’t know where he is.

That’s meant mixing up some genuine Biden stumbles with fake stories that get wide pickup. On Monday, the Trump campaign clipped a short segment from Biden’s "IWillVote” concert, a moment where he was talking with comedian George Lopez about the stakes of the election and briefly stumbled over a sentence.

“Four more years of — George, uh, George, we’re going to find ourselves in a position where if Trump gets elected, we are going to be going to be in a different world.”

Biden mashed together a few of his talking points, but the Trump campaign asserted that he was referring to former president George W. Bush, which made no sense. But outlets such as Fox News, NBC News and the BBC ran with it, several of them not mentioning that George Lopez was conducting the interview. (NBC later corrected a story with the context.)

The Trump campaign’s social media account has long been focused on Biden’s gaffes, or moments where he’s looked lost. Some of them go viral, and some don’t. Why did this one? It fit snugly into the news cycle; NBC’s report, for example, used it to balance a short update on the race by comparing Trump’s exit from a “60 Minutes” interview with Biden’s gaffe.

In the closing days of this race, Trump’s campaign is working to re-create the magic of 2016, when he held far more rallies than Hillary Clinton and she was staggered by a new FBI probe into her State Department emails. The political media is riven with worry that it will miss another Trump comeback; as a result, details like Biden sticking to one or two socially distanced events a day, while Trump holds two or three rallies, fit into a story line about Democratic overconfidence and stumbles.

And Biden can provide the stumbles. On Tuesday, the Trump campaign got some pickup with a perfectly in-context flub, where the candidate accidentally referred to his running mate’s “wife,” though not by name. It touched a hot stove again when it attempted to compare a moment from his speech in Warm Springs, Ga., to moments where Biden misstated what office he was seeking.

“For those who seek to lead, ‘We do well to ask ourselves; Why I am doing this? What is my real aim?’” Biden said, quoting a recent encyclical by the head of his church. “Pope Francis has asked questions that anyone who seeks to lead this great nation should answer.” In the Trump campaign's hands, the reference to the pope was removed, making it appear that Biden grew confused and asked “Why am I doing this? Why? What is my real aim?”

Candidate tracker

From here on out, expect President Trump and Joe Biden to be campaigning in a swing state every day. Goading Biden for not leaving his “basement” more often has been a focus of the president since March, and he did it again Monday, shortly before Biden made a brief visit to Chester, Pa. ― just miles from his Wilmington, Del., home — to join a get-out-the-vote launch and take questions from reporters. He once again mused about changing the Supreme Court, though he opposed ending lifetime tenure for justices, and he reiterated that the campaign wanted to win back all the Midwest states lost by Hillary Clinton.

"The blue wall has to be reestablished,” he said of his hope to win back Michigan, Pennsylvania and Wisconsin.

Biden's refusal to hold traditional rallies, for himself or surrogates, will continue through Election Day. But he's expected to campaign more, starting with stops in Georgia today and in Florida on Thursday, before heading back through the Midwest. That'll include a Friday stop in Iowa, a double-dip event designed to boost the party's House and Senate candidates, and to see if Biden's recovery of White voters relative to Hillary Clinton can narrowly flip the state.

The president's busy rally schedule is a meta-message in itself: He'll be everywhere, and Biden won't be. But like his Monday swing through Pennsylvania, the stops are focused on places he won in 2016, where he needs a boost now. After tonight's rally in Omaha, Trump will rally tomorrow in Mohave County, Ariz., then in the outskirts of Phoenix. Kamala D. Harris will be in Tucson and Phoenix the same day, and will be in Texas's biggest cities Friday, as the campaign continues to deploy her in places where non-White voters are a big part of their turnout model.

Vice President Pence, meanwhile, took no break from the trail after the positive coronavirus tests from five members of his staff. He did stay away from the Senate during Monday's confirmation vote. He'll rally in Wilmington, N.C., tonight, then head to Mosinee, Wis.; Flint, Mich.; Des Moines; and Reno. The last stop is the only one on Pence or Trump's schedule between now and Thursday in a state won by Hillary Clinton.

Countdown

… seven days until the general election … 39 days until runoffs in Louisiana … 48 days until the electoral college votes … 70 days until runoffs in Georgia … 85 days until the inauguration

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