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

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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Exit Polls and Projections

While working through this year’s “what to expect on election night” posts, it occurred to me that it would be a good idea to do a brief refresher on exit polls and projections.

To start with, projections have no legal meaning.  Legally, there is no winner until several weeks after the election when canvassing boards certify the official results.  Instead, a projection is a media company’s prediction of who will be the winner once all votes are counted.

In practice, all of the media companies isolate their projection team from those reporting the election results.  Thus, the number crunchers do not know what the talking heads are saying.  On the other hand, the number crunchers aren’t idiots.  They know what the expectations are and what races are probably going to determine who wins. Continue Reading...

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Election Night Preview — Part I — Pre-Prime Time

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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Voting and Vote Counting 101

Once again, we are facing the possibility that early election returns on November 5 will be very misleading.  In large part, this is due to the efforts of one candidate (he who shall not be named) to demonize one form of voting which means that there will likely be significant partisan differences based on the mechanism showing.  This problem is made worse by certain states which would rather make voting difficult in the name of preventing the tiny amount of fraud that exists rather than actually preventing fraud.

There are basically four types of voting in the U.S.:  1) Absentee/Mail-in voting; 2) Early (in-person) voting; 3) In-person (election day) voting; and 4) provisional voting.  Each state has slightly different rules for these types of voting.  This difference is most pronounced for absentee and early voting.  For early voting, the difference mostly comes down to the period for early voting (when it starts and when it ends) and the days/hours when early voting locations are open.

For absentee voting, there are two big areas of difference.  First, states differ on whether a reason is required for an absentee ballot and what reasons are accepted.  While almost every state now allows early voting, many states still require an excuse before a person can cast an absentee ballot.  Second, there is a wide variety of rules governing the deadline for casting an absentee ballot.  The big difference is whether the ballot must be received by election day or merely postmarked by election day.  However, six states (Alabama, Connecticut, Louisiana, New Hampshire, North Dakota, and West Virginia) require any absentee ballot dropped off by the voter to be dropped off by the day before the election, and two states (Louisiana and New Hampshire) require any ballot mailed to be received by the day before election day, and three states (North Dakota, Ohio, and Utah) require that mail-in ballots be post-marked by the day before the election.       Overall, thirty-five states are “received by” states and fifteen states (and the District of Columbia) are “post-marked by” states (but each of these states have a different post-election deadline for the receipt of ballots).  Of the crucial states (at least at the presidential and Senate level), only Nevada, Ohio, and Texas are “postmarked by” states. Continue Reading...

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Understanding the Polls

We are at that time of the election cycle where every close poll causes Democrats to have panic attacks.  But it is important to understand the exact imperfections of polls rather than the myths about polls.

First, almost every polling company tries to be accurate.  There are a couple of exceptions that are really propaganda companies that use slanted polls to push a political agenda, but most polling companies depend on having a reputation for accuracy.

Second, every poll has a margin of error.  The margin of error is tied to sample size.  To use a real world statistical example, we know that a coin flip will come up heads 50% of the time.   But if you flip a coin twice, you will only get a 1-1 split 50% of the time.  If you flip a coin 100 times, 95% of the time, you will get between 44 and 56 heads (a margin of error of 6%).  If you flip a coin 1000 times, 95% of the time, you will get between 480 and 520 heads (a margin of error of 2%). Continue Reading...

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Supreme Court Preview — Part 3 — Possible Cases for Later this Term

This post is always the speculative part of the term preview.  The Supreme Court only grants review on about 1% of the applications that it receives.  Our legal system is based on the principle that courts are always open to anybody with a legitimate case.  In practical terms, that means that anybody can file a case and that courts sort out the clearly meritless cases after they are filed.  And the Supreme Court certainly gets a significant number of applications from people who “want to take their case all the way to the Supreme Court” even though the lower courts clearly applied current law correctly and there is no good argument for Supreme Court review.  But even eliminating those cases, there are still a large number of applications that raise issues that deserve to be decided by the Supreme Court.

In practical terms, the Supreme Court is looking for the “right” case to present an issue.  The Supreme Court has, in recent years, gotten better at screening out cases that have procedural issues that might prevent the Supreme Court from reaching the “merits” of the issue raised by the “questions presented” part of the application for review.  The application process means that (at least after the early October conferences) the Supreme Court considers accepting review of cases approximately 5-8 months after the decision by the lower appellate court.  That means that the cases to be heard this year involve lower court decisions that have already been made.

Among the cases that we should learn about in October are a pair of cases involving Uber and Lyft.  Both companies have agreements with their drivers requiring arbitration of disputes.  Under the Federal Arbitration Act, those contracts are valid and enforceable.  California, like many states, have laws that give the state government the power to enforce minimum wage and overtime laws.  The issue presented in those case is whether those state laws allowing the government to take action to enforce the employees right to additional compensation is a valid way to get around the arbitration requirments. Continue Reading...

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Supreme Court Preview — Part 2 — December and January Arguments (?)

In last week’s post, we covered the cases that already have argument dates scheduled for October and November.  In this week’s post, we cover cases which the Supreme Court accepted this past Spring.   As of today, the Supreme Court has not yet released its December argument schedule.  Thus, we do not know which of these cases will be heard in December and which might be held over for January.

The Supreme Court tends to schedule cases in the order in which they were accepted for review.  However, all of the cases that might be scheduled for December or January were accepted for review in the last three weeks of the old term (June 17, June 24, and July 2).   So this post will go in order by the date on which review was granted.

From June 17, only one case remains to be set for argument.  (The other cases will be heard in November.)  Kousisis vs. United States is a criminal case, but it implicates two issues of political significance.  The first is that this case is a fraud case involving government benefits.  The harm to the government is that the false statements allowed defendants to get a government contract over a potential alternative bidder.  But there is no indication that the defendants failed to properly fulfill the core of the contract.  In recent years, the Supreme Court has been pushing back against broad reading of fraud statutes and have not been inclined to allow charges based on noneconomic harm.  The second is that the fraud related to minority participation in the contract.  The business in its bid claimed to meet the goals for minority participation but, on closer analysis, the proposed minority participation was a mere shell to create the illusion of minority participation.  Again, the Supreme Court has been pushing back on such affirmative action programs in recent years.  This case presents another opportunity to minimize the role of attempts to assure minority businesses have the chance to participate in federal contracts. Continue Reading...

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Supreme Court Preview — Part 1 — October and November Arguments

We are three weeks away from the start of the new Supreme Court term.  While the Supreme Court (specifically Chief Justice john Roberts) tries to present itself as outside of politics, the reality is that some members of the Supreme Court encourage politically controversial cases.  Even without such efforts, courts have become the first resort for people who do not like political decisions.

As of this point in the year, the Supreme Court has announced the cases that it will be hearing in its October and November argument sessions.  It has also taken some other cases for argument, but it has not yet scheduled them for argument.  (More on how argument works and how cases are taken are in an “appendix” at the end of this post.)

The first potentially controversial case of the term is the “ghost guns” case — Garland vs. VanDerStok.  The issue in this case is whether the regulations that the ATF has proposed for ghost guns (guns which are assembled from parts by the user) is consistent with the federal statutes on firearms.  As we have seen last year with the bump stock case and others, the Supreme Court has taken the position that it will determine whether proposed regulations are consistent with statutes and it tends to strictly interpret the firearms statutes in a way that makes it hard for ATF to keep pace with changes in the gun market.  This case will be heard on October 8 — the second day of the term. Continue Reading...

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Convention wrapup

Some odds and ends after the Chicago gathering:

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Trump Legal Watch — Labor Day 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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