Tag Archives: Donald Trump

Remaining Races and Recounts (UPDATED 11-23)

By tmess2 | Published November 17, 2024

Votes are still being counted, particularly out west where mail-in ballots are the predominate form of voting.  But we are down to a handful of races that are still too close to call.

There are three things to consider at this point.  The first is how many ballots remain to be processed and where those ballots are.  The second is that Alaska uses ranked-choice voting.  While the U.S. does not have much experience with ranked-choice voting, Australia does.  The Australian experience has taught us is that second and third choices tend to be for the candidate closest to the first choice but there will be some drop off and a minority will go to the “non-similar” candidate.  As such, it is hard for a trailing candidate to close the gap much, and the trailing candidate usually wins only if the original margin is small, there are a significant number of votes for the “also-ran” candidates.  Third, the vote counting machines are very accurate.  There will be some voter errors that are only caught by visual inspection, but recounts rarely change the final count by much.  Closing a 1,000 vote margin in a recount is almost impossible.

Turning to what is still outstanding, depending on the media site that you use, the only outstanding Senate race is Pennsylvania.  The real issue in Pennsylvania is provisional ballots.  The current margin is 18,000.  Senator Bob Casey is receiving about 60% of the vote from provisional ballots so far, and most of the remaining provisional ballots are in areas that favor Senator Casey.  There will be a recount, but, as noted above, it is unlikely that the recount will change the vote total by more than 1,000.  Senator Casey’s chances depend entirely on how many additional provisional ballots are counted. Continue Reading...

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Election Night Preview — Part Six (Post-Midnight Eastern)

By tmess2 | Published November 3, 2024

Prior to Midnight, the polls will have closed in forty-eight states and the District of Columbia.  All that is left to close are Hawaii and Alaska.  Hawaii closes at midnight Eastern (7;00 p.m. local).  Polls close at 8:00 p.m. local time in Alaska.  For most of the state, that is midnight Eastern.  But the Aleutian Islands are in a separate time zone and will close at 1:00 a.m. Eastern.

In Hawaii, the first big chunk of returns will be the early votes, but those are not reported until all polling places have actually closed.  As such, it may be an hour or more before results are released.  The release of results will be a little bit slower than Alaska.

The biggest race out of these two states is the congressional seat for Alaska, currently held by Democrat Mary Peltola.  One factor that will delay a projection in this race is that Alaska uses ranked-choice voting.  The Republicans in Alaska have pretty well demonstrated that they do not know how to run a race with ranked choice voting.  Thus, rather than running two strong candidates and having the candidates encourage their supporters to rank the other candidate second, the Republicans have had their second candidate withdraw.  Not having two candidates attacking Representative Peltola is a strategic mistake.  But because the Republicans have cleared the field, it is unlikely that there will be many votes for the remaining candidates on the ballot.  A good rule of thumb for ranked choice voting is that a candidate who finishes in second on first preferences is unlikely to have a net gain more than 1% for every 2% of the vote that went to the eliminated candidates.  Representative Peltola received a majority of the vote in the primary, but that is now guarantee that she will get a majority of the first preference votes in the general election.  It is entirely possible that we will not know the winner until after all counts are voted and preferences are applied, but the history of ranked choice voting in Australia is that, in most races, there is a clear winner with a sufficiently large margin in first preferences that the second-placed candidate can’t realistically catch-up. Continue Reading...

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Election Night Preview — Part Five — The Local News and the West Coast (11:00 To 11:59 P.M. Eastern)

By tmess2 | Published November 2, 2024

Typically, in the Eastern and Central Time Zones, 11:00 p.m. EDT is when the local affiliates of the “big three” broadcast networks have their local newscasts.  Election night is a little bit different.  Most of the networks give their affiliate a five minute or so slot at the top and/or bottom of the hour to give an update on the local races.  At 11:00 p.m., after doing a quick run down along with any quick projections that can be made, the networks will give an extended break for a short (fifteen minute or so local newscast).

During this hour, we have three states in which the remaining polls close and two states in which the polls close entirely.  But, in talking about the West Coast states, there is a heavy reliance on mail-in vote.  So vote counting in these states takes days.  The partial closings are 8:00 p.m. local (Pacific) time in the majority of Oregon and the northwest part of Idaho and 9:00 p.m. local (Mountain) time in North Dakota.  North Dakota and Idaho are covered in yesterday’s post, but Oregon is covered below.  The two full closings are in California and Washington.

The result in the presidential race is not in doubt in any of the three states closing this hour.  Kamala Harris should sweep all three states.  Given how many electoral votes are available in California, it is almost impossible for Vice-President Harris to be projected as the national winner before 11:00 p.m.  Similarly, if Adam Schiff is not the new Senator from California and Senator Maria Cantwell is not reelected in Washington, we are looking at a red wave that could get Republicans a filibuster proof majority.  In other words, these five contests should be projected for Democrats during the hour.  The races to follow in these states are the House races. Continue Reading...

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Election Night Preview — Part Four — Prime Time Hour Three (10:00 to 10:59 P.M. Eastern)

By tmess2 | Published November 1, 2024

After the heavy numbers of the previous two hours of prime time, the final hour of prime time represents a slight slowing of polls closing.  Of course, that will be made up for as several of the close states will either be projected or turn into all night counts.

There are three partial closings and three full closings this hour.  On the partial closing, we have the second of two 9:00 p.m. local time closings with the eastern (Central Time Zone) part of North Dakota.  You also have all but the panhandle of Idaho closing at 8:00 p.m. local time (Mountain Time Zone).  For both of these states, the part closing represents the majority of the state.  The last partial closing is the one exception to the general trend.  Oregon is the one start in which the majority of the state is in the western part of the state.  So this post will only cover the partial closing in Idaho and North Dakota with Oregon in the next post.  The three full closings are Montana and Utah at 8:00 p.m. local time and Nevada at 7:00 p.m. local time.

Idaho, like Wyoming in the previous post, is solidly red.  If Democrats are competitive at either the presidential level or for either of the congressional seats, then it will have been a very good night for Democrats.   The one contest of interest is a ballot proposition seeking to go to a top four primary with ranked choice voting.   While Idaho is not likely to turn blue anytime soon, a top four primary with ranked choice voting might mean more moderate Republicans representing Idaho in the future. Continue Reading...

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Election Night Preview — Part Three — Prime Time Hour Two (9:00 To 9:59 P.M. Eastern)

By tmess2 | Published October 31, 2024

As the major networks into the second hour of coverage, the focus begins to move from exit polls to actual returns.  Counting the split states in their main time zone, polls have now closed in the overwhelming majority of states.  For the first group of states (the ten that closed before 8:00 p.m. Eastern), you now have a good chunk of the returns from rural counties and you will have most of them by the end of this hour).  For the second group of states (the twenty that closed between 8:00 p.m. and 8:59 p.m. Eastern), those returns are just starting to come in.  In both cases, the people doing the math are comparing those returns to the results from 2016 and 2020 to see what, if anything has changed (percentages, margins, turnout).  And while you tend to have good exit polls for the statewide races, many congressional districts need these early returns to confirm the anticipated results.

This hour will see the remaining polls close in Michigan, Kansas, South Dakota, and Texas.  We will also see the polls close in Nebraska, which like Tennessee in the previous hour, opts to close all polls at the same time even though the state has two time zones (so the eastern part of the state closes at 8:00 p.m. local time and the western part of the state closes at 9:00 p.m. local time).  You have the last of the Eastern Time Zone states, New York, close its polls at 9:00 p.m. local time.  You have four Central Time Zone states — Iowa, Louisiana, Minnesota, and most significantly Wisconsin — close at 8:00 p.m. local time along with the eastern half of North Dakota.  Finally, polls close at 7:00 p.m. local time in four states located in the Mountain Time Zone of which the most significant is Arizona but also includes Colorado, New Mexico, and Wyoming.  At the end of this hour, we will only be waiting on polls to close in ten states.

Arizona is one of the two big states closing this hour.  While the easiest way for Kamala Harris to win the election is by sweeping the northern blue belt states (Michigan, Pennsylvania, and Wisconsin), winning in Arizona would allow Vice-President Harris to win if she loses Wisconsin.  At the Senate level, the unpredictable Kyrsten Sinema read the writing on the wall and decided to call it at one term.  Representative Ruben Gallego is favored to keep the Senate seat in Democratic hands but chief election denier Kari Lake will make it closer than it should be and will fight in court for the next three years if she does not win.  The Democrats are favored to keep the three seats that they currently hold in the House, but have fighting chances in three of the six seats held by Republicans.  The first district is a toss-up district (R+1) in which the Democrats have a well-funded challenger.  But we have seen this story before and Representative David Schweikert always seems to find a way to survive.  The second district is a little more of a longshot as it is a lean Republican district (R+6).   While the Democratic candidate has enough funding to run a strong campaign, unlike the first district, Republican Eli Crane has more money than his opponent.  The second is only likely to fall in a Democratic wave.  The last close district in Arizona in the sixth district.  Representative Juan Ciscomani narrowly won in 2022 and is facing a rematch this year.  The fundraising total for both candidates is approximately even. Continue Reading...

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Election Night Preview — Part Two — Prime Time Hour One (8:00 to 8:59 p.m. Eastern)

By tmess2 | Published October 28, 2024

While there are some significant states that close before 8:00 p.m. Eastern, that time marks when election coverage truly kicks off.  Aside from the realities of the broadcast networks that as for two basic reasons.  First, as discussed last weekend, vote counting is slow.  Since people in line when the polls “close” can still vote, it takes some time to actually shut down a polling place (both in getting the last people processed and out and in the procedures to secure the election materials after the polling place closes).  And then the counting usually have to be transported to some central location for the local election authority.  Thus, the first hour of returns tend to be the results of early voting and absentee ballots (in those states which release those separately from the election day returns) and a handful of smaller counties.  It is only in the second and third hour of counting that you start getting the rest of the smaller counties and the first returns from the really big counties.  Second, not every state closes at 7:00 p.m., local time, and a good chunk of the states are not in the Eastern time zone.  Only two states (Indiana and Kentucky) close at 6:00 p.m. local time.   While 7:00 p.m. is one of the more popular local times to close, only nineteen states close then (and only five of those are in the Eastern time zone).  Four states (Arkansas, North Carolina, Ohio, and West Virginia) close at 7:30 p.m. local time.    The most popular poll closing time is actually 8:00 p.m. when twenty-two jurisdictions close their polls.  You have two states (Tennessee and Nebraska) which despite being split in two time zones have opted to have all the polls close at the same real time (meaning in the eastern part of the state, the polls close at 8:00 p.m. local time while in the western part of the state, the polls close at 7:00 p.m. local time).  Lastly, two states (New York and North Dakota) close at 9:00 p.m. local time.

So when 8:00 p.m. Eastern time rolls around, you have polls closing in the ten jurisdictions wholly in the Eastern time zone that close at 8:00 local time.  You also have the polls in the western part of Florda closing at what is 7:00 p.m. local time in that part of Florida to finish out Florida.  You have the polls closing at 8:00 p.m. local time in the part of Michigan in the Eastern time zone (all but the Western part of the Upper Peninsula), You have the polls closing simultaneously at either 8:00 p.m. local time or 7:00 p.m. local time in Tennessee.  You have all of the polls closing at 7:00 p.m. local time in Alabama, Illinois, Mississippi, Missouri, and Oklahoma.  And you have polls closing at 7:00 p.m. local time in the eastern parts of Kansas, South Dakota, and Texas.  Of those last three states, only South Dakota is roughly evenly divided geographically between Central and Mountain time and only tiny slivers of Kansas and Texas are in the Mountain time zone.  In short, you go from approximately ten jurisdictions being closed, to the majority of almost thirty jurisdictions being closed.  For all intents and purposes, election night starts at 8:00 p.m. Eastern.

As the hour starts, we should have already had some expected projections from the early states.  And the early news is more likely to be bad news than good news, but it is expected bad news that should not cause people to panic.  Barring a miracle, by 8:00 p.m. Eastern, the networks and the AP will have projected Donald Trump the winner in Indiana, Kentucky, South Carolina, and West Virginia.  They will also have projected the Republicans as winning two Senate seats (Indiana and West Virginia) to one for the Democrats (Vermont) for a gain of one although it is possible that the Virginia Senate seat might also be projected before 8:00 p.m.  And most of the early House seats projected will be Republican with a couple of seats gained in North Carolina. Continue Reading...

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Election Night Preview — Part I — Pre-Prime Time

By tmess2 | Published October 26, 2024

The U.S. is somewhat unique among major democracies in having national elections run by state governments (which in turn mostly delegate the actual running of the election to local governments).  While Congress has set a uniform election day for federal offices (including the election of presidential electors) and most states have decided to hold state and county elections at the same time, each state gets to choose the time when polls close in that state.  In other countries, there is either a uniform closing time (mostly in countries with a single time zone) or polls close at the same local time (creating a gradual move from east to west with additional polls closing every hour).  The result in the U.S. is that rather than a stately progression, you have something of a zig zag.

But this zig zag process creates a rolling story for election night (and creates a way for us to break down what to look for on election night.  In this (and following posts), I will designate poll closing times by local and Eastern Daylight times.

Putting to the side the territories, polls start to close at 6:00 p.m. Eastern (which is also 6:00 p.m. local time) in the parts of Kentucky and Indiana in the Eastern Time zone.  These two states are deep red and very gerrymandered.  In other words, there should be nothing to see in these two states.  Indiana has an open Senate seat as the current Senator is running for governor and one of the Republican representatives is running for the Senate seat.  But this state is not on any body’s list of states likely to flip even though the candidate the Republicans nominated for lieutenant governor is extremely controversial (which could make the race for Governor/Lieutenant Governor closer than it otherwise would be).  And none of the House seats in the Eastern time zone are competitive with the closest race having a PVI of R +11.  The only seat worth watching in Indiana’s first district which is mostly in the central time zone.  That district is only D+3, but the Republican candidate is viewed as a long shot.  The early votes are in the more Republican half of the district.  So the first hour or so of return may make the race look close, but, by the end of the night, the Democrat should be up by 10% or more.  In Kentucky, there are no Senate races or state races and the two closest races are +9 PVIs.    In other words, if anything is happening with the House seats in either state or the statewide races in Indiana, that could be a sign that polls are very off.  The most significant races in these two states are two ballot questions in Kentucky.  One is a “throw red meat to the base” proposal to ban voting by non-citizens (which is already illegal).  The other would allow public funding for private schools (which would include religious schools). Continue Reading...

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Trump Legal Watch — Labor Day 2024

By tmess2 | Published September 2, 2024

This week saw several developments in the on-going effort to bring Donald Trump to justice.

To start with the most frivolous, Trump is attempting to remove the New York criminal fraudulent business records case to federal court.  Given that this attempt is coming post-trial, the odds of the case being removed are almost certainly less than none.  Additionally, the attempted filing was rejected for procedural defects.  It’s not clear that Trump can remedy the procedural defects given that this filing is very late in the case.  In any case, the trial court is likely to take up and then deny Trump’s frivolous motion for new trial and then proceed to sentencing.   While Trump is attempting to delay the sentencing, he has presented no legal reason why his criminal case should be treated differently from ordinary defendants other than a non-existent “presidential candidate” exception to the standard procedure.  As of today, a decision on Trump’s motion for new trial (almost certainly a denial) is due on September 16 with sentencing to occur on September 18 unless the motion for new trial is granted or the trial court decides to postpone the sentencing.

The other three are more significant but routine. Continue Reading...

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The Supreme Court and January 6

By tmess2 | Published April 14, 2024

Monday marks the start of the two-week “April” argument session at the Supreme Court — traditionally, the last argument session of the term.  After next week, the Supreme Court will spend the next two months finishing up the opinions.  (As of today, we have 14 opinions in the 51 cases heard in the first six argument sessions of the term.  As we get later in the term and have more opinions issued, there will be posts about which justice might have each case.  For now, there are not enough opinions issued to support any attempt to read the tea leaves.)

This session features two crucial cases related to January 6.  The first, being heard on April 16 involves the legal reach of the obstruction charge which has been filed against a significant number of defendants, including prisoner in the dock Donald J. Trump.  The second, being heard on April 25 (a special semi-expedited Thursday argument) involves whether Donald J. Trump has any immunity to the pending charges.

The April 16 argument comes in the case of Fischer vs. United States.  This appeal arises in the context of a motion to dismiss filed Mr. Fischer.  The essence of a motion to dismiss is a pre-trial claim that the conduct alleged by the government is not conduct covered by the offense charged.  The trial court agreed with Mr. Fischer, but the appellate court reversed. Continue Reading...

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Trump vs. United States — The Immunity Argument

By tmess2 | Published March 3, 2024

Earlier this week, the United States Supreme Court announced that it would hear arguments in the case of Trump v. United States, regarding Trump’s claim that he is immune from prosecution for his role in the January 6 insurrection because his actions that day were official actions.  They also announced that arguments will be held this term — on April 22.  There is a lot to unpack in this order.

Let’s start with the procedural posture of this case.  Late last year, the trial judge (sitting in the federal district court for D.C.) denied Trump’s motion to dismiss the indictment based, in part, on his claim of absolute immunity for actions taken while President.  He then filed an “interlocutory” appeal of that ruling.  (In most cases, parties can only appeal when a case is over.  There are a limited number of circumstances in which a party can immediately appeal from a pre-trial ruling,)   The appellate court (the D.C. Circuit) expedited the appeal (even more so than is normal for interlocutory appeals).  Despite the D.C. Circuit expediting the case, the special prosecutor, In December, asked that the U.S. Supreme Court take the case without waiting for a ruling from the appellate court (something that is rarely done).    But, on December 22, the U.S. Supreme Court denied that request.

On February 6, the D.C. Circuit issued its opinion affirming the trial court.  Normally, there would be a brief period of time before the “mandate” (the formal order implementing the opinion and restoring the authority to the trial court to proceed).  But the panel that issued the opinion set a quick deadline of February 12 for Trump to get a stay of the mandate from either the full D.C. Circuit or the U.S. Supreme Court.  As such, on February 12, Trump filed for a stay with the U.S. Supreme Court.  Now, in most cases, once the stay were granted, the case would proceed on a normal schedule.  On a normal schedule, Trump would then ask for rehearing from the full D.C. Circuit.  If and when the D.C. Circuit declined to rehear the case (the ruling in almost all cases), Trump would then have ninety days (plus any extensions) to ask for certioarari (the formal order taking the appeal) from the Supreme Court.  In some cases, however, when the U.S. Supreme Court issues a stay, it will also treat the stay application as a petition for certiorari.  The special prosecutor, in his response to the stay application, while arguing for the U.S. Supreme Court to deny the stay, made the alternative argument that, if the U.S. Supreme Court did grant the stay, it should exercise that power to treat the stay application as a petition for certiorari and expedite the case. Continue Reading...

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