It’s the day after Thanksgiving, and the major electoral news of the day is the release of an opinion from the 3rd Circuit that starts with the following passage: “Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”

This came in an unsuccessful appeal brought by Trump’s campaign requesting, among other things, an injunction to block Pennsylvania’s certification of the election results. And those words were actually penned by a Trump appointee to the bench, Judge Bibas, whose opinion was joined by both of the other members of the panel, Republican appointees themselves. Which didn’t stop a campaign attorney from complaining about “the activist judicial machinery in Pennsylvania” after the decision didn’t go their way, mind you.

In other news, Biden was already the first Presidential candidate to surpass the 70 million mark in the national popular vote, but two days ago he passed the 80 million mark. His lead over Trump is now about 6.2 million and should continue to grow, as Democratic-leaning New York continues to be the largest source of uncounted votes (in 2016 there were 7.7 million votes counted in New York, while at this point we’re only at about 7.25 million votes counted in 2020, despite nationwide turnout being up significantly from 2016 to 2020).

Of course, Trump took that news well, tweeting the following today: “Biden can only enter the White House as President if he can prove that his ridiculous ‘80,000,000 votes’ were not fraudulently or illegally obtained. When you see what happened in Detroit, Atlanta, Philadelphia & Milwaukee, massive voter fraud, he’s got a big unsolvable problem!” I love how the article linked above dispassionately follows in the next paragraph with this: “Biden does not have to disprove mass fraud to become president, and there is no evidence of widespread voter fraud in the 2020 election.” I imagine the copy editors of America are looking forward to a time when they no longer have to view each article they publish about the President through the lens of, what disclaimers do we need to put in this article and where so as to make it clear that certain of the President’s statements are inaccurate and/or unsubstantiated…

We seem to have reached the inflection point today with respect to the presidential transition.

First, Michigan certified its election results (on a 3-0 vote with one Republican canvasser abstaining). Most Pennsylvania counties also certified their results as scheduled today although some counties won by Trump look to be running a little behind.

Second, late in the day the General Services Administration finally took the formal step of issuing an ascertainment letter stating that Biden is the apparent winner. Under federal law, this is a necessary precursor to official transition activities, but the Trump-appointed GSA Administrator had until today been unwilling to take this step.

Mind you, in announcing the issuance of the ascertainment letter by tweet, Trump took pains to emphasize that he was not conceding: “Our case STRONGLY continues, we will keep up the good fight, and I believe we will prevail!” However, it is hard to understand what path forward Trump thinks he has at this point.

While we’re well into the “states certifying election results” phase of the 2020 Presidential election, Trump continues to refuse to concede, whereas Biden is planning to start naming Cabinet picks the day after tomorrow.

Georgia recently completed what it referred to as a risk-limiting audit of the election results, which entailed a full hand recount of 5 million ballots. The hand recount reduced Biden’s margin over Trump from 0.26% to 0.25%. As a result, Georgia’s Republican secretary of state and governor have now certified the results, although the Trump campaign have requested a further recount. Confusingly, their recount request explicitly articulates a desire to re-inspect signature matching on mail-in ballots, which is literally impossible to do again at this point, but was already done twice as part of the initial processing of ballots.

Michigan’s state board of canvassers, which has 2 members from each party, is scheduled to vote tomorrow to certify the election results. However, the federal and state Republican parties have sent a letter requesting a two-week delay to allow for “a full audit and investigation into potential voter fraud.”

Pennsylvania is supposed to certify its election results tomorrow. Yesterday a federal judge dismissed the Trump campaign’s attempt to block that from happening, although today the Trump campaign has appealed to the 3rd Circuit.

The Trump campaign had decided to pay for a recount in Wisconsin, but saved $5 million by only requesting the recount in the two large Democratic-leaning counties (Milwaukee and Dane). Now they are apparently seeking to disqualify all absentee ballots that were cast in person in those counties before election day, on the grounds that state law was not followed with respect to the paperwork for people requesting such ballots. Wisconsin is not scheduled to certify its results until December 1st.

All of this would be somewhat funny, were it not for the fact that Trump’s antics seem to have convinced tens of millions of Americans that Biden was not legitimately elected, despite no presentation of evidence to support that view. A poll conducted Nov 12th to 16th stated that 32% of Americans believe Biden only won due to fraud, with another 2% volunteering that they don’t believe Biden will actually be declared the winner; among Trump votes, those numbers went up to 77% and 4%. The same poll said that 44% of Americans, and 88% of Trump voters, felt that not enough information was yet known to know who won. (Recall that the news organizations had declared the race for Biden on Nov 7th.)

The vote continues to drip in from some of the larger and less contested states. Biden’s popular vote margin is now up to 5.9 million, or 3.8%; that is with fairly complete results from California (Biden 63.6-34.2) and Illinois (Biden 57.4-40.6), but New York (56.5-42.0) is still a work in progress, particularly in NYC.

There are still 8 uncalled House races, 5 in New York; Republicans are leading in all of them, in one case (Iowa 2nd) by 48 votes and in another (California 25th) by 422 votes. As such Pelosi’s House majority could end up being as narrow as 222-213.

Trump’s litigation strategy appears to be going nowhere, in a direct sense. However many are speculating that his real strategy is indirect – to create enough smoke about ‘general election fraud’ that the election officials responsible for certifying the elections in certain states refuse to do so, potentially opening a pathway for Republican legislators to submit a set of Trump electors even though the reported popular vote in that state favors Biden. For a few hours earlier this week there was a hint this was working, when Republican election officials in Wayne County (Detroit) refused to certify the county’s election results, before reversing course later in the evening, although now they apparently want to rescind their votes. However there are myriad problems with this overall “alternate electors” strategy, many of which are summarized in this Politico article from today.

Perhaps the real objective here has been for Trump to create enough doubt about the election outcome that he feels justified governing during the ‘lame duck’ session as if his administration will continue beyond January, thus giving conservatives additional opportunities to ‘burrow in’ to the federal government. Six district court nominees were confirmed these week, even though since 1897 only one judicial nominee had been confirmed during the lame duck session after a presidential election in which the incumbent lost. That one exception? In the fall of 1980 a Democratic Senate staffer was appointed to the First Circuit by an 80-10 vote, despite Reagan’s election: Stephen Breyer.

A quick observation, as a follow-up to yesterday’s post: There is a sense in which Trump’s apparent 232-306 loss in 2020 is closer than Clinton’s apparent 232-306 loss in 2016, but only slightly.

I noted yesterday that in order for the apparent outcome of the 2020 election to be reversed, the following margins in three states would need to be overcome, yielding a 269-269 tie that would presumably be broken by the House in Trump’s favor (due to the “one vote per state” rule in effect for such a situation):

1. Georgia – Biden by 0.28%
2. Arizona – Biden by 0.31%
3. Wisconsin – Biden by 0.62%

Applying the same analysis to 2016, in order for Clinton to have won the following margins in three states would need to have been overcome, bringing about a 278-260 Clinton victory:

1. Michigan – Trump by 0.23%
2. Pennsylvania – Trump by 0.72%
3. Wisconsin – Trump by 0.77%

In 2016, faced with a need to overcome margins in three different states to achieve a different outcome, Clinton conceded on the night of the election.

In 2020, faced with a need to overcome margins in three different states to achieve a different outcome, Trump remains completely defiant almost two weeks after election night.

Collectively, the three margins Trump faces average to 0.40%, while the three margins Clinton faced averaged to 0.57%. I would submit that, while Trump’s situation is objectively closer than Clinton’s, the difference between the two situations is not vast enough to justify the dramatic difference in the two candidates’ post-election behavior.

Put differently: If Trump is right to not concede in 2020 until states have certified their results, then why should Clinton have conceded in 2016? But imagine how berserk the Republican Party would have been in mid-November 2016 if Clinton had not conceded by then…

To recap: By now the major media organizations have called all of the states in the 2020 Presidential election, resulting in an apparent 306-232 win for Biden. The three closest states at this point are: (1) Georgia, where Biden’s margin is 0.28%; (2) Arizona, where Biden’s margin is 0.31%; and (3) Wisconsin, where Biden’s margin is 0.62%. No other state is within 1.0% — not even Pennsylvania, where Biden’s margin has kept climbing since the state was called and is now up to 1.00%.

So, what would it take for Trump to win at this point? Overturning the results in any two of those three states would not suffice. If all three of GA, AZ, and WI were to flip from Biden to Trump, then that would produce a 269-269 electoral college tie. Assuming no faithless electors, that tie would lead to a vote in which each state’s House delegation gets a single vote; and that would probably lead to Trump’s re-election (as going into the 2020 election the Republicans held a 26-23 lead in control of state House delegations).

As such, any theoretical doubt about the outcome of the 2020 presidential election would hinge on somehow reversing the results of three different states, none of which currently have a margin within 0.25%, and none of which seem to have encountered any significant election irregularities.

Nevertheless, this morning President Trump tweeted the following: “He only won in the eyes of the FAKE NEWS MEDIA. I concede NOTHING! We have a long way to go. This was a RIGGED ELECTION!” And tonight he followed with this: “Why does the Fake News Media continuously assume that Joe Biden will ascend to the Presidency, not even allowing our side to show, which we are just getting ready to do, how badly shattered and violated our great Constitution has been in the 2020 election.” Later in his Twitter rant he referred allegedly to “millions of ballots that have been altered by Democrats, only for Democrats” and “to voting after the election was over.”

So, yeah, that’s where we are.

A handful of states have already certified their election results, with more to come starting this week. I was glancing through the Delaware certified election results, and comparing them to the 2016 results, and noticed some interesting things:

• Overall turnout in Delaware was up 14% from 2016 to 2020. One might imagine some of that is a “favorite son” effect for Biden, particularly in light of the fact that Biden’s overall margin over Trump was several points stronger than Clinton’s.
• In 2016, only 5.6% of the votes cast in Delaware were “absentee” rather than “machine”, and the absentee votes were slightly more Democratic than average: Absentee votes went 56.2% to Clinton, while machine votes went 53.2 to Clinton%.
• Whereas in 2020, 32.1% of the votes case in Delaware were “absentee” rather than “machine”, and these votes were very heavily Democratic. Biden actually lost the machine vote to Trump in his home state by a slim margin, 208 votes. But, he won 79% of the Delaware absentee vote.

Now: If you just looked at these numbers in a vacuum, bereft of context, might you be able to convince yourself that they are an artifact of election fraud? If fraudulent absentee ballots favoring the Democrats were being added to legitimate votes, it would indeed look something like this: an increase in overall turnout, a dramatic increase in absentee votes, and a dramatic newfound Democratic lean for absentee votes.

But, of course, we have a compelling alternate explanation for this phenomenon, relating not just to a “favorite son” Democratic candidate in Delaware, but importantly also to the politicization of the pandemic: Democratic voters were far more likely than Republican voters in 2020 to place public health interests first by selecting absentee voting over in-person voting. And in the absence of any actual evidence of electoral fraud, there’s no inherent reason to find these results suspicious given the unusual context of our times.

Georgia and North Carolina have both been called this afternoon: Georgia for Biden by 0.3%, and North Carolina for Trump by 1.4%.

So, pending any unexpected developments coming out of the process for states to certify their results, we are finally at 306-232 as the final tally. The same electoral college margin for Biden in 2020 as for Trump in 2016, with Biden’s popular vote margin notably in excess of Clinton’s four years ago. Right now Biden is ahead by 5.3 million, versus Clinton’s 2.9 million, but that should continue to widen as states like New York report additional vote.

I had talked earlier this week about the House race in the Illinois 14th, where freshman Democrat Lauren Underwood faced a tighter-than-expected contest from Republican Jim Oberweis. Previously I referred to him as a “perennial candidate”. For clarity, he had: finished 2nd in two different U.S. Senate primaries; finished 2nd in an Illinois Governor primary; lost the U.S. House election in this same district in 2008 (pre-redistricting), when it was an open seat upon Speaker Hastert’s retirement; and eventually won a State Senate seat, although he didn’t run for re-election in that seat this year since he was instead running in this election.

Yesterday I missed that the race had finally been called, and for Underwood, whose lead kept expanding as the late vote came in. In the end she appears to have won by 50.6% to 49.4%. (Curiously, the Democrat running for Oberweis’ vacated seat in the Illinois Senate won by exactly the same margin.) This represented about a 2% shift from the Democrats to the Republicans in this largely exurban district.

In my district, the 4th, as expected Congressman Garcia won re-election very handily, although by only 83-17 as opposed to 87-13 in 2018. There were some other House races of minor interest in Illinois, however:

• The 3rd District extends outwards from the Southwest Side of Chicago towards the southwestern suburbs. It was a noteworthy race in 2018 for two reasons: The conservative Democrat incumbent narrowly received a primary challenge to his left; and the only Republican running in the primary was a neo-Nazi, who was then disavowed by his party in the general, making for an uncompetitive election. This year the Democratic primary challenger (Newman) tried again and won, and then faced a more serious Republican challenge in the general. She won, but by only 9%, in a district where Clinton had beaten Trump by 15%.
• The 8th District covers many of the northwestern suburbs of Chicago; this had been Senator Duckworth’s seat before she ran for Senate, and Clinton had won this district by 22% in 2016. I was surprised to learn that the Republicans didn’t even field a candidate here in 2020, given that they managed to field them in less competitive districts like the 4th. The Libertarian party did however, and their candidate won 28% of the vote, as the only alternative to the Democratic incumbent. I rather suspect that could be the best-ever showing by a Libertarian congressional candidate (noting that Congressman Amash became a Libertarian earlier this year while in office but never ran for election as one), but I don’t know that.
• I used to work in the 10th District, which covers most of the North Shore suburbs of Chicago. In recent memory this had been a very competitive district: The current Democratic congressman, Schneider, won narrowly in 2012, lost narrowly in a rematch in 2014, and won narrowly in a rematch in 2016. Given that history I was surprised to see that this time he won 61-39, but it turns out that he’d actually won by a larger margin in 2018, once former Congressman Dold was no longer attempting to re-gain the seat.
• The 17th District covers the northwestern-most portions of the state. The incumbent Democrat, Bustos, had won 62-38 in 2018 and was the chair of the DCCC in the current election cycle. It came as quite a surprise, therefore, when it took two days for the Associated Press to call the race for Bustos. It now appears she won only 52-48.

This evening the last large remaining block of votes was reported from Maricopa County in Arizona, and in the wake of those results most news organizations have now called Arizona for Biden. His lead is currently 11.4K votes, or 49.4% to 49.1%; my understanding is that a mandatory recount would only occur if the margin is less than 0.1%.

Arizona makes the score 290-217 for Biden, with Georgia (16) and North Carolina (15) yet to be called. Neither state’s reported vote total has moved noticeably since yesterday.

From a just-published Maggie Haberman article at the New York Times: “[I]nstead of conceding … [Trump] is floating one improbable scenario after another for staying in office while he contemplates his uncertain post-presidency future. There is no grand strategy at play… By dominating the story of his exit from the White House, he hopes to keep his millions of supporters energized and engaged for whatever comes next.”

I hadn’t paid any attention to what happened in the Minnesota State Senate elections until just now. Going into the election the Republicans held a 35-32 advantage, which made Minnesota the only state in which different parties controlled different houses of the legislature. The Democrats did manage to flip 3 seats, but the Republicans flipped 2; so the end result is a 34-33 Republican edge, and continued potential for gridlock.

Not much to report today.

The media organizations have finally called Alaska for the Republicans, in both the Presidency and the Senate race. That puts the current electoral college score at 279-217. The leads in the Pennsylvania and the three uncalled states are now as follows: Biden by 53K in Pennsylvania; Biden by 14K in Georgia; Biden by less than 12K in Arizona; and Trump by 73K in North Carolina.

Georgia announced today that they will do a full hand recount, as opposed to a mechanical recount. The election certification deadline in Georgia is 9 days from now, on November 20th; it seems arduous to get a hand recount of almost 5 million votes accomplished by then.

Biden made his first significant appointment announcement today, naming (to nobody’s surprise) Ron Klain as his chief of staff.

A good article today from Benjamin Wittes, “How Hard is it to Overturn an American Election?”

A week after Election Day, this evening the Associated Press declared that the House majority will indeed remain in Democratic hands. At this point 16 House races have yet to be called, while the races that have been called so far have gone 218-201 for the Democrats.

Also, today Cunningham conceded to Senator Tillis in the North Carolina race, giving the Republicans their 49th Senate seat. Alaska would make 50, and then there are the two Georgia runoffs to occur on January 5th.

Nationwide COVID-19 hospitalizations hit a new high today, surpassing the 60,000 level for the first time and topping the previous peak from April 15th.

Today was also the day when the Supreme Court heard oral arguments on California v. Texas, the third major case to reach SCOTUS regarding the constitutionality of the Affordable Care Act. The general consensus from oral arguments, consistent with my expectations going in, appears to be that there are not five votes to declare the entire ACA unconstitutional.