Yes, Trump’s a stupid and dangerous asshole; but so are many— how many?— of his voters. And, yes, Republicans have nothing to offer the electorate except nihilism and a mirror with which to view their grievances. And gas prices are falling and Americans are starting to feel better about the economy. And the polling is looking good for Democrats. Even in Ohio, of all places. On Thursday, The Economist’s latest YouGov poll showed 44% of registered votes saying they plan to vote for a Democrat running for Congress, as opposed to just 38% who say they plan to vote for a Republican. All good news, right? Let’s allow David Leonhardt to piss on your parade as he looked into whether Democrats will again be disappointed by overly optimistic polling.
He reminded his readers that the final 2020 presidential polls “overstated Joe Biden’s strength, especially in a handful of states.” His small lead in North Carolina, for example, turned into a small win for Señor Trumpanzee. A prediction of a big Biden win turned into a near loss and the tight race in Ohio turned out to be a 8 point margin of victory for Trump. Leonhardt explained that “In each of these states— and some others— pollsters failed to reach a representative sample of voters. One factor seems to be that Republican voters are more skeptical of mainstream institutions and are less willing to respond to a survey. If that’s true, polls will often understate Republican support, until pollsters figure out how to fix the problem… This possibility offers reason to wonder whether Democrats are really doing as well in the midterm elections as the conventional wisdom holds. Recent polls suggest that Democrats are favored to keep control of the Senate narrowly, while losing control of the House, also narrowly. But the Democrats’ strength in the Senate campaign depends party on their strength in some of the same states where polls exaggerated Democratic support two years ago, including the three that I mentioned above: North Carolina, Ohio and Wisconsin.”
Nate Cohn offers the possibility that “the polls may not be wrong this year in the same way that they were wrong in 2020. It’s even possible that pollsters are understating Democratic support this year by searching too hard for Republican voters in an effort to avoid repeating recent mistakes. The unavoidable reality is that polling is both an art and a science, requiring hard judgments about which kinds of people are more or less likely to respond to a survey and more or less likely to vote in the fall. There are still some big mysteries about the polls’ recent tendency to underestimate Republican support. The pattern has not been uniform across the country, for instance. In some states— such as Georgia, Nevada and Pennsylvania— the final polls have been pretty accurate lately. This inconsistency makes the problem harder to fix because pollsters can’t simply boost the Republican share everywhere. There is also some uncertainty about whether the problem is as big when Trump is not on the ballot — and he is obviously not running for office this year. Douglas Rivers, the chief scientist of the polling firm YouGov, told me that he thought this was the case and that there is something particular about Trump that complicates polling. Similarly, Nate noted that the polls in the 2018 midterms were fairly accurate.”
The Democrats have two things going for them that might make the polling come true this year: the Republicans’ abolishing the right to Choice and Trump’s assholery in the media every day.
Judd Legum went deeper into misery territory with today’s newsletter: The radical legal theory that could upend the 2024 election. He’s talking about a SCOTUS/state legislative coup engineered by arch-villain Leonard Leo, who has spent decades successfully reshaping our country’s judiciary, developing a network of conservative donors to help confirm conservative and fascist foot soldiers to the federal bench. “He played a central role,” wrote Legum, “in the selection and confirmation of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. The right-wing supermajority on the Supreme Court reflects Leo's vision, and it has already resulted in radical changes,” the anti-Choice decision and the kneecapping of the federal government's ability to combat climate change.
Leo has stepped down from his day-to-day responsibilities at the Federalist Society to pursue an even more audacious agenda. According to reports by ProPublica and the New York Times, Leo recently raised $1.6 billion for a new political advocacy group, Marble Freedom Trust. That money came from a single donor, "ultra secret Republican businessman" Barre Seid.
These funds will be available for Leo to pursue his latest initiative: an effort to give state legislatures unfettered authority over federal elections. It is a fringe legal argument advanced by Donald Trump's lawyers in their effort to overturn the 2020 presidential election. If adopted by the federal courts, it could throw 2024 and future elections into chaos. But it is being taken very seriously by Leo and several of his allies on the Supreme Court.
In a series of opinions authored by Chief Justice Roberts, the Supreme Court has already gutted many federal voting rights protections. In 2019, for example, Roberts ruled that federal courts cannot do anything about partisan gerrymandering. The ruling means that if the party in control of a state legislature manipulates political maps to enhance its power, federal courts can do nothing.
North Carolina is a closely divided state. In 2020, Trump, with 49.93% of the vote, narrowly defeated Biden, with 48.59% of the vote. But, after the 2020 Census, Republicans in the North Carolina legislature created gerrymandered Congressional districts that were so extreme that an evenly divided popular vote would result in "10 of the 14 seats to the Republicans and only four to the Democrats." The map created by the Republican legislature "was a radical statistical outlier more favorable to Republicans than 99.9999% of all possible maps."
Federal courts, after Robert's ruling, were not going to get involved. But voters sued in state court, arguing the maps "violated the [North Carolina] constitution’s 'free elections clause,' among other provisions." The North Carolina Supreme Court agreed with this argument, calling the maps "an egregious and intentional partisan gerrymander… designed to enhance Republican performance, and thereby give a greater voice to those voters than to any others.”
The legislature effectively ignored that decision and produced another gerrymandered map. Ultimately, the state courts ordered "a special master to create a fair map for the 2022 congressional elections."
Two Republican members of the North Carolina legislature filed an emergency appeal with the Supreme Court seeking to restore the gerrymandered maps. The basis of the appeal is a radical legal doctrine called the independent state legislature theory. The independent state legislature theory is based on a hyper-literal interpretation of the Elections Clause of the Constitution:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.
Advocates of the independent state legislature theory argue that this means that, apart from Congress, the state legislature has absolute power over the administration of elections. This power, according to the theory, cannot be constrained by state constitutions or state courts.
The most important thing to know about the independent state legislature theory is that it makes no sense. State legislatures do not exist independently. They are created and constrained by state constitutions. And state courts interpret state constitutions.
The idea that the intention of the Election Clause is to allow state legislatures to violate the state constitution is absurd. Indeed, "many framers— including James Madison— voted to adopt state constitutions that regulated federal elections, as North Carolina’s does today." And, of course, most laws passed by state legislatures must be signed by a governor to take effect. The independent state legislature theory has been rejected by the Supreme Court for more than 100 years and as recently as 2019.
The independent state legislature theory was promoted by Trump's lawyers after the 2020 election to argue that state legislatures could simply ignore the election results and appoint electors pledged to Trump. Such actions, according to the independent state legislature theory, would be unreviewable by state courts even if they directly violated state constitutions.
…Leo is advocating for the independent state legislature theory through a group called the Honest Elections Project. The group is a rebranding of the Judicial Education Project, which has longstanding ties to Leo.
Before the 2020 election, the Honest Election Project spent hundreds of thousands on dollars "warning against voting by mail and accusing Democrats of cheating." It filed "briefs in favor of voting restrictions in Nevada, Virginia, Texas, Wisconsin and Minnesota."
Last week, the Honest Elections Project filed a brief in support of the North Carolina Republican legislators seeking to restore gerrymandered maps. The brief aggressively argues in favor of the independent state legislature theory. It claims the theory represents "the plain meaning of the Elections and Electors Clauses." The Honest Elections Projects assures the Supreme Court that adopting the theory would not "wreak havoc upon elections nationwide.” Rather it would merely prevent "state courts and executives from ignoring or invalidating clear laws passed by the legislature." A similar brief submitted by the Republican National Committee and National Republican Congressional Committee accuses critics of the theory of "political histrionics."
John Eastman, "the lawyer who was behind then-President Donald Trump’s attempts to have states’ valid electors tossed out," filed a brief supporting the Republican North Carolina Legislators on behalf of the right-wing Claremont Institute. Eastman takes the independent state legislature theory to its logical conclusion. He argues that when state legislatures take action regarding the "time, place, and manner" of elections or the selection of presidential electors, they "cannot be constrained by anything in state law or even a state constitution to the contrary."
…In the memo, Eastman argued that actions taken by state courts in at least 7 states prior to the 2020 election were illegal under the independent state legislature theory. Therefore, Pence should ignore the electors submitted by those states and declare Trump the winner. Now Leo and the Republican Party are now attempting to take the pretext Eastman relied on to justify overthrowing American democracy and make it the law of the land.