Legislatures Cannot Override the Popular Vote

Some crackpots are floating the idea that state legislatures should ignore the election outcome and select electors on their own.

They cannot do so.

Adav Noti at Just Security:

The Constitution has two main provisions that govern the selection of presidential electors. First, the Constitution says that each state’s legislature has the authority to determine that state’s manner of choosing its electors. Second, the Constitution gives Congress the power to decide when the electors are chosen, which Congress has done by enacting a federal law designating the Tuesday after the first Monday in November — Election Day.

Proponents of the legislative-appointment theory read too much into the first constitutional provision and forget about the second. Although every state has chosen its electors by popular vote for more than a century, most constitutional experts agree that, under the legislature’s authority to choose the “manner” of appointing electors, a legislature could theoretically decide before Election Day to cancel the popular vote for presidential electors and instead appoint them directly. But Congress’s enactment of a uniform national Election Day under its own constitutional authority — which supersedes any contrary state actions — prohibits the choice of electors from being made based on elections held or laws passed after Election Day.

In other words, under the constitutional timing provision as implemented by federal law, the absolute last day a state legislature could have decided to appoint the state’s presidential electors for this election was November 3, 2020. Once that date passed, the determinative popular votes had all been cast, and therefore the legislature’s authority to change the state’s manner of appointing electors in 2020 passed as well.

Polling Problems

Across the board, public opinion surveys overstated Democratic support in the 2020 election.

David Graham at The Atlantic:

This is a disaster for the polling industry and for media outlets and analysts that package and interpret the polls for public consumption, such as FiveThirtyEight, The New York Times’ Upshot, and The Economist’s election unit. They now face serious existential questions. But the greatest problem posed by the polling crisis is not in the presidential election, where the snapshots provided by polling are ultimately measured against an actual tally of votes: As the political cliché goes, the only poll that matters is on Election Day. The real catastrophe is that the failure of the polls leaves Americans with no reliable way to understand what we as a people think outside of elections—which in turn threatens our ability to make choices, or to cohere as a nation.

Aaron Zitner at WSJ:

Some have come to believe that a distrust of institutions is more pervasive than anticipated across many voter groups, and that it leads conservative voters, even those with college degrees and urban addresses, to avoid participating in polls in disproportionate numbers. If so, the problem likely can’t be corrected by adding more members of any one demographic group to a polling sample, they said.

“I readily admit that there were problems this year, but it is too soon to know the extent of the problems, or what caused them,’’ said Courtney Kennedy, who supervises poll methodology for the Pew Research Center. In both 2016 and 2020, she said, ”there was a widespread overstatement of Democratic support,’’ but the causes this time around could be different. 

 Kevin Drum at Mother Jones:

Without doing a deep dive, here’s the nutshell answer. It’s always been the case that not everyone answers the telephone when pollsters call. This produces a non-random sample, which pollsters have to correct using models to reweight the sample so it matches the actual electorate.

But in recent years, this problem has become acute: response rates to polling calls have plummeted to around 5 percent these days. This produces a massively lopsided sample, which in turn puts a lot of pressure on the model weights to correct things. It’s now gotten to the point where everything depends on the accuracy of the model, and if the model is off then the polling numbers are worthless. But this produces something of a tautology: the goal of the model is to emulate the “real” electorate, but there’s never any way to be sure you’ve done that since the real electorate is what you’re trying to measure in the first place.

In 2016 the models failed to adjust properly for educational levels among likely voters. In 2020 pollsters corrected for that but obviously failed to account for something else. Eventually they’ll figure out what it was. And there’s no guarantee that they’ll get it right in 2024, which might have some entirely different problem.

Texas v. Califoria, California v. Texas

Our colleague Kenneth Miller has a new book titled Texas vs. California (Oxford University Press, 2020)

Texas and California are the leaders of Red and Blue America. As the nation has polarized, its most populous and economically powerful states have taken charge of the opposing camps. These states now advance sharply contrasting political and policy agendas and view themselves as competitors for control of the nation's future. Kenneth P. Miller provides a detailed account of the rivalry's emergence, present state, and possible future. First, he explores why, despite their many similarities, the two states have become so deeply divided. As he shows, they experienced critical differences in their origins and in their later demographic, economic, cultural, and political development. Second, he describes how Texas and California have constructed opposing, comprehensive policy models--one conservative, the other progressive. Miller highlights the states' contrasting policies in five areas--tax, labor, energy and environment, poverty, and social issues--and also shows how Texas and California have led the red and blue state blocs in seeking to influence federal policy in these areas. The book concludes by assessing two models' strengths, vulnerabilities, and future prospects. The rivalry between the two states will likely continue for the foreseeable future, because California will surely stay blue and Texas will likely remain red. The challenge for the two states, and for the nation as a whole, is to view the competition in a positive light and turn it to productive ends. Exploring one of the primary rifts in American politics, Texas vs. California sheds light on virtually every aspect of the country's political system.

Fittingly, the two states are at odds in an important upcoming Supreme Court case. 

Oyez sums California v. Texas:

In 2012, the U.S. Supreme Court upheld the individual mandate of the Affordable Care Act (ACA) against a constitutional challenge by characterizing the penalty for not buying health insurance as a tax, which Congress has the power to impose. In 2017, the Republican-controlled Congress enacted an amendment to the ACA that set the penalty for not buying health insurance to zero, but it left the rest of the ACA in place. Texas and several other states and individuals filed a lawsuit in federal court challenging the individual mandate again, arguing that because the penalty was zero, it can no longer be characterized as a tax and is therefore unconstitutional. California and several other states joined the lawsuit to defend the individual mandate.

The federal district court held that the individual mandate is now unconstitutional and that as a result, the entire ACA is invalidated because the individual mandate cannot be “severed” from the rest of the Act. The U.S. Court of Appeals for the Fifth Circuit upheld the district court’s conclusion but remanded the case for reconsideration of whether any part of the ACA survives in the absence of the individual mandate. The Supreme Court granted California’s petition for review, as well as Texas’s cross-petition for review.

Potential Senate Outcome

 

Click the map to create your own at 270toWin.com

Voting: Comparative Perspectives

 From Pew:

Though the exact policy varies from one place to another, 122 of the 226 countries and territories in the ACE Electoral Knowledge Network have some form of compulsory voter registration. In Argentina, Chile, Hungary, Israel, the Netherlands and elsewhere, such registration is automatic, based on government records such as census counts. In other cases, qualified residents are required to register themselves. Failing to register is punishable by a fine in some places, including New Zealand, Tonga and the United Kingdom.

Another 90 countries and territories have no laws requiring all qualified residents to register to vote, though registration may be required in order to vote. In India – the world’s largest democracy – and Mongolia, voter rolls are compiled automatically through census data collection, though registration is not compulsory. In Austria, voter registration and voting itself were compulsory in at least one province until 2004; today, there is no requirement to register or to vote in Austrian elections. There is no compulsory voter registration in the U.S., though registration is necessary in order to vote in nearly all states and U.S. territories (North Dakota does not have voter registration)

Voting by the Dead (Seriously)

As of this morning, 89.6 million Americans had already voted.

 Wendy Underhill at NCSL:

What happens when an eligible voter casts an absentee ballot and then passes away before Election Day? This question comes up more and more, as absentee/mail voting, and even early in-person voting, gain in popularity.

Do these pre-Election Day votes count? Like everything else related to elections, the answer varies from state to state. By our count, statutes in at least 12 states (Arkansas, Connecticut, Idaho, Florida, Louisiana, Maryland, Massachusets, Minnesota, Montana, New Mexico, North Dakota and Tennessee) direct election officials to count these ballots.

Massachusetts has done so most recently, with the enactment of HB 4820 in July: “The absentee or early ballot of any voter who was eligible to vote at the time the ballot was cast shall not be deemed invalid solely because the voter became ineligible to vote by reason by death after casting the ballot.”

Again by our count, 15 states go the other way and are clear that these ballots are not to be counted: Colorado, Delaware, Hawaii, Illinois, Indiana, Iowa, Kentucky (by an AG’s opinion, 77-667), Mississippi, Missouri, New Hampshire, New Jersey, Pennsylvania, South Dakota, Virginia (again by an AG’s opinion, 10-104) and Wisconsin.

Regardless of the law, it is hard to retrieve a ballot from someone who has died between casting it and Election Day. Once the absentee ballot has been verified and the ballot is removed from the envelope for counting, the ballot can’t be retraced to the voter—it’s a secret.

Newspapers During COVID

 From Pew:

U.S. newspapers have been in a long economic downturn. While some national newspaper brands have reported audience growth in recent years, the industry overall (which extends to hundreds of local papers throughout the country) experienced a sharp decline in ad revenue amid the Great Recession and has yet to recover.

Ad revenue historically has been the industry’s biggest single revenue stream, although many newspapers have made efforts in recent years to orient their business models more around revenue directly from readers – such as through online or print subscriptions. Despite this, overall circulation and subscription revenue has barely budged over the past 10 years.

Now, with the coronavirus-driven downturn, the six publicly traded newspaper companies analyzed here (which collectively own over 300 newspapers) have seen a year-over-year fall in both types of revenue.6

The median ad revenue among these publicly traded newspaper companies fell by 42% in the second quarter of 2020 when compared with the second quarter of 2019. This pattern was similar for all six newspaper companies analyzed here, with even the least-affected company, Gannett, showing a 35% decline in ad revenue year over year.

Rick Edmonds at Poynter:

The two newspapers serving Salt Lake City and other parts of Utah have announced that they will switch from daily to once-a-week print editions early in 2021.

At the same time, executives of The Salt Lake Tribune and Deseret News said that their joint operating agreement, set to expire at the end of 2020, will not be renewed.

The JOA allowed the two to share printing and other business functions while keeping distinct news and editorial operations. Each will now need to bring that work back in-house.

Part of the transition will be to close a printing facility, which Deseret owns, that currently serves both papers. That will mean the loss of 161 jobs, the company said.

Deseret is also laying off 18 other employees, including six journalists. The Tribune said that it will retain all the journalists in its newsroom, roughly 65.