We've tackled some of that here, along with topics more typically covered in the newsletter, such as the changing strategies in Georgia's runoff. One question that didn't get asked, but that we'll answer anyway, is what would happen if the slim Democratic House majority is eroded by special-election losses, and Republicans end up with 218 seats before 2022? That's easy: As in 1931, the last time that a party's majority was lost mid-session, the opposition party would take over.
That scenario isn't unfolding right now, though, so we'll start with questions about what's coming next.
Q: “After the inauguration, which Trump will/will not attend, can we hope that there will be a lot less media coverage of the former president?” — Jacklin
A: More and less. After Jan. 20, nothing Trump says or does will come with the potential of government action. The actions President Biden takes will lead to immediate and far-reaching policy impact; the tweets of former president Donald Trump will not.
But in the age of televised mass media, there has never been a defeated president who made it clear he wanted to run again. Jimmy Carter and George H.W. Bush gave up electoral politics. Gerald Ford considered another run, but wasn't dominant in polls of Republican primary voters, as Trump is now. In the first years after his 1976 loss, he kept his options open, in part out of worry that Ronald Reagan, who nearly wrested the GOP's nomination away from him, would win a primary and lose a general election. Trump has no comparable political rival.
The point: Just as it had to adjust to a reality show host taking over a major political party, the media will have to adjust to something else, a defeated president remaining the dominant figure in his party. There may be some resistance to covering this at all — witness the post-election spectacle of reporters turning off their Trump tweet notifications. But the future of the GOP will be a major story in 2021, just as the future of the Democratic Party was in 2017, and Trump will determine how much of the story is about him. Watch for what happens immediately after Jan. 20, as President Biden unwinds a string of Trump executive orders, and the press assesses how much to cover Trump's response.
Q: “If Dems take the two Georgia seats, how high are D.C. and Puerto Rico statehood on Schumer’s priority list?” — Jordan
A: To watch Republican ads in Georgia, yes, you'd think that statehood for D.C. is Item One of the agenda of a Democratic Senate. A cause for years in the city itself, it was pushed into the presidential campaign by dedicated local activists, and it gained momentum on the left as part of a wider conversation of how to reduce the rural, conservative skewing of the Senate.
Puerto Rican statehood has been a more bipartisan issue, supported in the 2016 Republican platform — which famously wasn't updated this year. But the current Republican conferences in the House and Senate have taken no steps to support it, and the Puerto Rico Statehood Admission Act has only 16 Republican co-sponsors who can vote on it. (It's backed by two nonvoting territorial representatives, including the representative from Puerto Rico, who aligns with the GOP.)
The point: While a state can be admitted to the union with a majority vote in both houses of Congress, most successful statehood bids enjoyed bipartisan, majority support, and these bids don't have it. Sen. Joe Manchin III of West Virginia has said that he won't vote to eliminate the filibuster even if Democrats gained a working majority by winning the Georgia races, so unified Republican opposition and a filibuster could stop any statehood drive. Neither Democratic candidate, Jon Ossoff or the Rev. Raphael Warnock, opposes the statehood drives, but neither has prioritized them on the trail.
Q: “If we Democrats had been able to rig the election, surely we would have taken a solid majority in the Senate. Why hasn't this been enough to puncture the ‘stop the steal’ idea?” — Hal
A: Actually, the Democrats' lackluster down-ballot performance has been cited by Trump supporters as a reason to suspect voter fraud. “We have identified at least 450,000 ballots in the key states that miraculously only have a mark for Joe Biden on them, and no other candidate,” erstwhile Trump campaign attorney Sidney Powell told Fox Business on Nov. 8. Breaking down the numbers in swing states, Powell's estimate was that about 2 percent of all ballots had votes for president but nothing else.
That's not unusual. Take the example of Pennsylvania, the only Midwest swing state that had Senate races in both 2016 and 2012. Four years ago, 6,166,938 votes were cast in the presidential race, but just 6,051,856 votes in the state's expensive and very close Senate race. In the Obama-Romney race, 5,775,620 votes were cast for president, compared with 5,627,422 in a Senate race that became competitive in the final days. That falloff is comparable to the one that Powell initially cited as a reason to doubt the count.
To your question: Why would a party allegedly capable of a scheme to fake hundreds of thousands of ballots not bother filling in the bubbles for down-ballot candidates? The answer you most often see online is that the fraudsters were in a hurry, and cut corners to save time, prioritizing the Biden race. The reality-based explanation: Most of the attention in any presidential election year goes to the presidential candidates, and some voters just show up, vote for that office, and ignore the rest.
Q: "How have the candidates in the Georgia Senate run-offs adjusted their campaign messages since November 3rd?" — Nick
A: They've each approached it differently, but in general, both Democrats have talked more about direct financial relief to combat the effects of the pandemic, and both Republicans have sharpened their attacks.
The biggest shift came in the race between Republican Sen. Kelly Loeffler and Democrat Rev. Raphael Warnock; Loeffler spent the all-candidate primary emphasizing her conservatism and attacking her strongest Republican rival, and turned to negatively defining Warnock.
After nearly ignoring the Democrat for months, Loeffler made use of Republican opposition research into Warnock's sermons and his criticism of Israel's policy toward the Palestinians. She's dropped the “more conservative than Attila the Hun” messaging of the primary, and her current ads alternate between recaps of her work on pandemic relief and warnings that the “radical” and “Marxist” Warnock would “defund the police.” (The charge that Warnock is a Marxist is based on a debate exchange when Loeffler challenged Warnock to denounce “Marxism,” and the Democrat described his support for capitalism. Because he did not say outright that he was not a “Marxist,” Loeffler has handled that answer like an admission.)
Warnock tried to preempt the attacks with a now-famous series of ads that showed him playing with a dog and warning that Loeffler would say anything to win. The messaging in the David Perdue-Jon Ossoff race has been less attention-grabbing; Perdue has continued to portray Ossoff as a leftist in league with China, which he started doing in September, and Ossoff has portrayed Perdue as a “crook” who benefited from inside information on the pandemic.
Q: “A number of mail ballots were NOT delivered in time for the November election deadline by the U.S. Postal System. Has there been any follow-up reporting on the final status of those ballots? Were they ever opened or just discarded? Are they subject to a FOIA request before they are discarded?” — Gary
A: In key states, tens of thousands of mail ballots were eventually delivered to be counted according to local rules. But the number was always smaller than the gap between Biden and Trump. Just 10,000 or so ballots missed the deadline in Pennsylvania, and thousands could be counted depending on the final judgment on a lawsuit against a three-day grace period. In Michigan, fewer than 4,000 ballots arrived after election night.
Rules vary from state to state, and sometimes vary more among counties, but there are typically months-long grace periods where ballots are held in storage for recounts or other research. That's how the Tribune Co. conducted a study on the ballots in Florida's 2000 election, publishing the results in late 2001. There are so many Republican attorneys now casting doubt on the 2020 results that it's safe to expect somebody else going for the same research.
Q: "With the President and many Republicans refusing to accept the reality that Trump has lost the election, is there a case for saying they are mentally ill and not fit to serve?" — CJ
A: This is the 25th Amendment question, and answering it never makes Democrats very happy. Yes, there is a method for taking away a president's power, in Section 4 of the 53-year-old amendment. It allows the vice president and a “majority of either the principal officers of the executive departments or of such other body as Congress may by law provide” to declare that the president is “unable to discharge the powers and duties of his office.” Any plan to take power away from Trump without removing him from office must involve Vice President Pence, and for that reason, it hasn't been considered outside of the most colorful #resistance fan-fiction.
Like the Electoral Count Act, the 25th Amendment has unspecific language that later generations have found difficult to interpret. Rep. Jamie Raskin, a liberal Democrat from Maryland and constitutional law scholar, has introduced legislation to create a Commission on Presidential Capacity to Discharge the Powers and Duties of Office, which would bring together nonpartisan actors and make it the “body as Congress may by law provide.” That legislation hasn't passed, and wouldn't make it out of the Senate, now or when the new Congress sits on Jan. 3.
Q: “What would happen if Biden died before the inauguration?” — Stuart
A: He's getting a coronavirus vaccination tomorrow, but this macabre question keeps getting asked, and there's an answer. Actually, two. The Dec. 14 vote of the electoral college affirmed Biden as president-elect, and were something to happen to him before Jan. 6, members of Congress could raise objections to the electors from each state Biden won.
Democrats would undoubtedly vote to give those sets of electors to Vice President-elect Kamala D. Harris, citing the 20th Amendment: “If, at the time fixed for the beginning of the term of the president, the president-elect shall have died, the vice president-elect shall become president.” On Jan. 6, it would be up to Republicans whether to try to flip the state to Trump, and risk the repercussions. After a president is certified by Congress, the constitution is clear: Harris would become president if something were to happen to Biden.
Like Section 4 of the 25th Amendment, this provision of the Constitution has never been invoked. In 1872, Democratic presidential nominee Horace Greeley died after the election, but before the electoral college vote. He'd lost the election anyway, so the break-the-glass measure was not tested.
“Even as Trump vows to keep fighting, his aides are quietly starting to move on,” by Josh Dawsey, David A. Fahrenthold and Carol D. Leonnig
The other plans that the president's closest allies are making.
Why were people still betting on a Trump win last week?
“Top Republicans offer conflicting messages about Trump’s loss while campaigning in Georgia,” by Cleve R. Wootson Jr. and Paul Kane
Four more years or the last line of defense?
A guide to the money rushing into Georgia.
One of the quests that the president-elect sounds happiest to take on.
Did a Supreme Court clerk overhear a MAGA-enraging discussion between justices? Nope.
On the Trail
Until this week, the phrase “crossing the Rubicon” was more of a warning than a piece of advice. Julius Caesar’s decision to enter Italy from Gaul inaugurated a period of civil war and dictatorship, ending with Caesar’s assassination five years later. People don’t talk about emulating it; they cite Caesar’s decision as a disaster to avoid.
They used to, anyway. Kelli Ward, the far-right chair of Arizona’s Republican Party, tweeted the hashtag #CrossTheRubicon at the end of a post promising Trump that “patriots” were “working every avenue to stop this coup.” She tagged disgraced former national security adviser Michael Flynn, who had told Newsmax on Thursday that, while he was “not calling” for “martial law,” he wanted the president to consider deploying the military to prevent Biden from becoming president.
“Within the swing states, if he wanted to, he could take military capabilities and he could place them in those states, and basically rerun an election in each in those states,” Flynn said.
The electoral college vote on Dec. 14 got a few more Republicans, including Senate Majority Leader Mitch McConnell (Ky.), to start calling Biden the “president-elect.” But any hope of that ending challenges to the election was fanciful. Denial of the Nov. 3 results has moved on to two previously unthinkable remedies: preventing the results from being certified by Congress on Jan. 6, and deploying the military to make that happen.
The president has elevated both options, the first one publicly and the second in a Friday meeting first reported by the New York Times. Sidney Powell came to the White House to talk about the campaign’s legal strategy — one she had been separated from weeks ago, alongside Flynn, her client. Trump asked about Flynn’s logistically and legally impossible idea of an election “rerun,” while in a separate conversation, Trump lawyer Rudolph W. Giuliani urged the Department of Homeland Security to seize voting machines and gather evidence to undo the Nov. 3 results.
Trump, who has frequently denied stories that turned out to be true, tweeted a quasi-denial just after midnight on the East Coast: “Martial law = fake news.”
But with some of his supporters calling for martial law or invoking the language of military coups, the president’s non-denials rang louder. He’s continuing to encourage Republicans to challenge the Jan. 6 certification of the election by Congress, something no defeated president has ever done. Trump retweeted two posts by Lauren Windsor, a muckraking video reporter who had video of Sen.-elect Tommy Tuberville of Alabama and a paraphrase from Sen. David Perdue of Georgia, both saying they would join House conservatives to contest the election.
Perdue might not be in a position to do so. Georgia’s runoff is on Jan. 5, making it impossible for the state to certify the result of the election by the morning of Jan. 6. But Tuberville will be sworn in on Jan. 3, and has been talking to Republicans about supporting the GOP’s challenge of the vote count after Rep. Mo Brooks of Alabama kicks it off. On Sunday morning, the president called into a show hosted by Giuliani to say he had talked to Tuberville; not long after, Rep. Matt Gaetz of Florida said he “had a chance to speak with Coach Tuberville just moments ago” and was ready to challenge the vote.
“He says, ‘We are done running plays from the establishment's losing playbook. It is time to stand and fight,’ ” Gaetz told an audience at a conference hosted by the conservative student group Turning Point USA, quoting Tuberville. “The odds may be tough, it may be 4th and long, but we’re going for it on January 6.”
In any other year, that would represent the extreme end of a plan to challenge the vote count. But the martial law chatter, echoed constantly on conservative social media, has been flashier, and easier for other Republicans to dismiss.
“That’s going nowhere,” Sen. Mitt Romney of Utah said on CNN’s “State of the Union” on Sunday.
“It was a conversation, not a revolution,” Rep. John Curtis of Utah said in a separate CNN interview this weekend, when asked about the report of the White House meeting.
But neither Romney nor Curtis can stop their fellow Republicans from challenging the vote count.
The Trump campaign’s legal maneuvers didn’t end on Dec. 14, either. On Sunday, the campaign announced a new petition to the Supreme Court, asking it to retroactively disqualify ballots in Pennsylvania by reversing lower-court decisions that made absentee voting easier. There’s no reason the court is likely to take that up, after rejecting two other pro-Trump lawsuits involving the state, but each legal defeat now feeds into the argument that there’s enough uncertainty to justify a Jan. 6 challenge.
In the states
Campaign surrogates rushed down to Georgia this weekend for the final non-holiday weekend before the Jan. 5 runoff. (Next weekend follows Christmas, and the last weekend of the race comes right after New Year’s Day.) Vice President-elect Kamala D. Harris will stump with Democrats on Monday, and the outgoing president will campaign with Republicans on the night before the election.
Neither side’s messaging has changed, though as we noted above, Republicans are being pushed to say that they would reject the presidential election results when Congress certifies them. In his own swing through for Sen. David Perdue, Donald Trump Jr., who has been on a tear about what he sees as unfairly light media treatment of Rep. Eric Swalwell of California after the revelation that he was once targeted by a Chinese spy, brought the conversation to China's influence — a topic Perdue has emphasized in his attacks on challenger Jon Ossoff.
“There’s a reason the Chinese spend all of their propaganda money attacking Republicans and seeking to befriend the Democrats,” Trump Jr. said. “They see the Democrats as a way to make America weaker.”
Republicans have been winless in a series of lawsuits to change Georgia's election rules before the runoff, but they got some assistance Sunday when True the Vote, a conservative group that campaigns for tighter election rules on the premise of preventing fraud, preemptively challenged hundreds of thousands of voters.
“According to Georgia law, an Elector Challenge must be filed before a vote is cast,” the group explained in a statement, basing its challenges on postal records of whether voters lived at the addresses contained in election boards' records. “Once a vote has been cast, or in the case of absentee ballots, once the ballot has been removed from its signed envelope, there is no way to identify which ballot belongs to the ineligible party. In fact, the best way to ensure only eligible voters are voting in the upcoming runoff elections is through Elector Challenges.”
… 16 days until runoffs in Georgia
… 17 days until a joint session of Congress to certify the presidential election
… 31 days until the inauguration