Sometime this morning Ossoff declared victory over Perdue, although I don’t believe any major media organizations have yet called the race for Ossoff. His lead has not appreciably changed in the last several hours, and still sits a little below the 0.5% recount threshold, but there is still some vote to be counted and I’ve seen speculation that his margin will eventually exceed that threshold.

As we speak Congress is debating an objection raised to the electoral college votes of Arizona (alphabetically the first of the ‘swing states’). Current headlines from the New York Times include:

• “Pence rejects Trump’s pressure to block certification saying he ‘loves the Constitution.'”
• “Parts of Capitol Hill are evacuated as protesters flood the grounds.”
• “McConnell speaks out forcefully against push to overturn election.”

Trump addressed supporters in front of the White House, saying “we will never give up, we will never concede,” and referring to Biden as an “illegitimate” president.

There is new reporting today that Biden will name Merrick Garland as his Attorney General, which is a fascinating choice. Garland, of course, was famously nominated by Obama in 2016 to fill Scalia’s Supreme Court seat, and was supposed to be an easily-confirmable nominee, but the McConnell-controlled Senate never gave him a hearing and after Trump’s victory the seat went to Gorsuch. Now that Biden believes the Democrats will control the Senate, he can pluck the 68-year-old Garland off of the D.C. Circuit Court of Appeals, install him in his Cabinet, and then get somebody younger and/or less moderate nominated to the D.C. Circuit in Garland’s place — somebody like 50-year-old Ketanji Jackson Brown, who might eventually be Biden’s first Supreme Court nominee. Whereas, if McConnell still controlled the Senate, he might have sought to block Biden from filling Garland’s seat, making a Garland Cabinet appointment less appealing.

In the wee hours of the morning, the major news organizations have called the Warnock-Loeffler race in favor of the Democrats. While I was sleeping Warnock’s margin has increased from 35K votes to 53K votes, putting him ahead by 1.2% (50.6 – 49.4).

The other race remains uncalled, but the lead has changed overnight: Ossoff is now ahead of Perdue by 16K votes, or 0.4% (50.2 – 49.8) — within the 0.5% margin at which the losing candidate can request a recount, but slightly ahead of Biden’s margin over Trump in November. Per the New York Times: “The remaining uncounted vote in Georgia appeared largely to be in Democratic-leaning counties in the Atlanta area, such as DeKalb and Fulton counties, as well as ballots from voters in the military and overseas.”

As such, things are looking rather good for the Democrats at this moment. Achieving a 50-50 tie in the Senate would allow Schumer to become Majority Leader in lieu of McConnell, and would give the Biden Administration a shot at actually being able to govern, without a solidly obstructionist Senate. I still wouldn’t expect to see transformative legislation passed in the 117th Congress, given the tenuous nature of the Democratic legislative majorities; as I saw one wag put it last night, Senator Manchin (D?-WV) is now the real Majority Leader, and I imagine as the most conservative Democratic Senator he will indeed have an outsized degree of influence on the legislative agenda. But, there’s a lot to be gained simply from Schumer’s ability to ensure that Biden’s Cabinet nominees, Biden’s judicial nominees, and any legislation adopted by the House can actually get a shot at moving forward in the Senate.

Later today attention will shift back to Capitol Hill for the joint meeting of Congress to open the Electoral College votes. There is reporting that Pence told Trump yesterday that “he did not believe he had the power to block congressional certification of [Biden]’s victory in the presidential election despite Mr. Trump’s baseless insistence that he did.”

It has been an exciting night of result-watching in the Georgia Senate runoffs. At this point in time, with approximately 98% of the vote having been counted, Warnock has a 35K vote lead (50.6-49.4) over Loeffler, while Perdue has a 2K vote lead (50.0-50.0) over Ossoff. However the remaining vote outstanding is believed to largely be early vote from metropolitan Atlanta counties. The New York Times’ election forecast model believes strongly that both races will go Democratic. Right now Warnock’s lead is outside the recount threshold. Heading to bed for now, but there’s certainly cause for Democrats to be optimistic.

By now the polls have been closed in Georgia for an hour-and-a-half, so vote is coming in swiftly. Steve Kornacki on MSNBC has been focusing on looking at counties whose vote is reasonably complete, and comparing the Democratic Senate candidates’ margin against Biden’s margin in the general. Based on that metric, it feels to me like things are going well for both Democrats. But there is obviously still a long ways to go.

Interestingly to me, Warnock’s vote share relative to Ossoff’s has been pretty consistent over the past hour at +0.3%. That is rather less than I was expecting, but is consistent with the candidates’ relative performance in the final 538 polling averages. This suggests there is much less ticket-splitting (and/or Black voters not bothering to vote in the all-white race) than I might have expected.

The Senate runoff elections in Georgia are today, although over 3.0 million early votes have already been cast, down about 25% from the number of early votes cast in the Georgia general two months ago. Polling strikes me as being of even more limited value than usual when it comes to a special election, but for what it’s worth 538’s polling averages have Ossoff ahead of Perdue by 1.8% and Warnock ahead of Loeffler by 2.1%; in both cases this is a shift of about 1.5% to the Democrats since Christmas.

Yesterday’s news cycle continued to be dominated by the fallout from Saturday’s call between Trump and Georgia Secretary of State Raffensperger. There were pockets of criticism towards Raffensperger for recording the call in the first place (although that appears to have perfectly legal under Georgia law) and then for arranging/condoning the recording’s leak to the press (which happened only after Trump’s Sunday morning tweet mischaracterizing the call, in response to which Raffensperger tweeted “the truth will come out”). However that has been dwarfed by criticism of Trump, including multiple suggestions that the call is grounds for impeachment, and calls for federal and/or state criminal investigations. What would be the point of impeaching a President whose term ends in 15 days? Because Article I of the Constitution allows the Senate to determine whether an impeached individual should be disqualified from holding any further federal “office of public trust”.

And then in addition to the Georgia election, we have the build-up towards tomorrow’s political theatre in Congress regarding the formal counting of the electoral votes. I believe that, since the original twelve members of what some have called the “sedition caucus” were announced over the weekend, the only other Senator to go on record as joining their ranks is Loeffler (and also Perdue, who doesn’t get to vote since his seat is now technically vacant). Signs of sanity in the Republican party were exhibited yesterday by ambitious Senator Tom Cotton, former speaker Paul Ryan, and pundit George Will, whose latest column‘s title is “Hawley, Cruz and their Senate cohort are the Constitution’s most dangerous domestic enemies”.

Today marked the first day of the 117th Congress. My understanding is that the Senate currently sits at 51-48 in favor of the Republicans, because Perdue’s seat is technically vacant pending the outcome of runoff, whereas Loeffler continues to occupy her seat (she was appointed to it and the full term is not yet up). The House currently sits at 222-211 in favor of the Democrats, with a vacancy in Louisiana due to Rep.-elect Letlow’s death last week, and a vacancy in New York due to the unresolved race in the 22nd. Pelosi was re-elected as Speaker despite not having the support of five moderate Democrats.

But, it’s been an eventful weekend in addition to that.

On the litigation front, yesterday the 5th Circuit quickly dismissed Gohmert’s appeal of his lawsuit against Pence regarding the 12th Amendment, agreeing with the lower court’s ruling that the plaintiffs lacked standing. The 5th Circuit is generally seen as the most conservative of the appellate courts, and the three-judge panel who tossed the appeal consisted of a Trump appointee and two Reagan appointees.

Also yesterday, we learned that the “arsonist wing” (to borrow Senator Sasse’s term) of the GOP Republican caucus has at least 12 members, including not only Senator Hawley but also another Senator with clear Presidential ambitions, Ted Cruz. Cruz and 10 other Senators (four of whom just joined the Senate today) floated a plan whereby on January 6th Congress would appoint an Electoral Commission to perform an “emergency 10-day audit” of the election results, which would theoretically allow a state time before January 20th to convene its legislature and “certify a change in their vote, if needed” in light of the Commission’s findings. This plan has been roundly criticized as anti-democratic by such Republicans as Senator Romney, Senator Toomey, and Governor Hogan. And, it is doomed to fail since the House will clearly not vote to support the plan.

However, it is nonetheless a very distressing development. Steve Schmidt, the former Republican political operative who announced last month that he would register as a Democrat, argued today that January 6th will represent the first shots in a “political civil war” within the Republican party, with the vote on January 6th representing a “loyalty test,” and with the “autocratic” wing pushing out the remnants of the “pro-democracy” wing in the 2022 Republican primary season. While I haven’t seen any media speculation regarding what I’m about to say, I suspect that if the Democrats were to win both Georgia Senate races next week, the schism within the GOP might come sooner than that: If McConnell no longer has the power of Majority Leader to bind his caucus together, might the likes of Romney, Toomey (who has already announced his retirement in 2022), Sasse (just re-elected in 2020), and Collins (ditto) decide to leave the GOP caucus and sit as independents, or perhaps even take steps towards formation of a new conservative party?

And then we have today’s big news, where the Washington Post released an hour-long audio recording of a call that took place yesterday between Trump and Georgia’s beleaguered Republican Secretary of State Raffensperger, plus attorneys and other advisers on both ends. The call consists largely of Trump asserting that he really won Georgia by hundreds of thousands of votes, and imploring Raffensperger to “find” enough votes to change the result. Raffensperger wasn’t having any of it.

In the hours since the call was released, there has been speculation that in the call Trump may have violated Georgia and/or federal laws regarding solicitation of election fraud. But even notwithstanding that potentiality: to the extent the call provides a window into Trump’s beliefs and his current state of mind, it’s frightening stuff. He seems to genuinely believe the election was stolen from him, based on conspiracy theories and arithmetic not grounded in actual facts. If his term weren’t coming to a natural end in 17 days, I suspect we’d need to talk once more about impeachment and/or the 25th Amendment.

Oh, and there’s reporting today that this week Trump intends to give the Presidential Medal of Freedom to Republican Congressmen Nunes and Jordan. I have no words.

We’re now 1 day away from the swearing in of the 117th Congress, 3 days away from the two Georgia Senate runoffs, and 4 days away from when the new Congress (with the old Vice-President presiding) meets to formally open and count states’ electoral college votes.

The 116th Congress passed two significant bills in its dying days. One was the Consolidated Appropriations Act, 2021, which is commonly thought of as the second major piece of COVID-19 stimulus legislation (the first having been March’s CARES Act). However, like many year-end consolidated appropriations acts before, the 2021 bill is filled with lots and lots of other things – in fact at over 5500 pages it is supposedly the longest bill ever passed by Congress. Of particular interest to me is the inclusion within this bill of a pet project of retiring Senator and HELP Chair Lamar Alexander, a bill to ban so-called “surprise medical bills”, which arise in situations where a patient is seeking care at an in-network facility but unknowingly (or unavoidably) is treated by out-of-network providers like anesthesiologists. There was a time when it was thought Trump might not sign the bill, but he finally did on December 28th.

The other bill is the National Defense Authorization Act for Fiscal Year 2021. The bill had passed in December with veto-proof majorities. Trump vetoed it anyways, on December 23rd, citing two reasons: he objects to the bill’s language that would rename military bases that were named after Confederate officers; and he wanted the bill to include a repeal of Section 230 of the Communications Decency Act of 1996, which he believes is inappropriately protecting Facebook, Google, Twitter et al. Some have suggested that Trump’s real motivation for vetoing the bill was its inclusion of new stronger anti-money-laundering provisions, including a new requirement that all corporations tell the U.S. Treasury who owns and controls them. However, last week the House voted to over-ride the veto and yesterday the Senate followed suit, making this the first veto over-ride of the Trump Administration.

As for Georgia, yesterday Trump tweeted that the runoff elections were “both illegal and invalid.” There has been speculation that Trump’s rhetoric may lead to lower-than-expected Republican turnout in Georgia: If some of his base believes elections are inherently rigged, then why would they bother to vote? This dynamic is adding to the difficulty of assessing what will happen in these races. Intuitively, the Republicans are coming into these races with huge structural advantages. First, Purdue had a 1.8% lead on Ossoff in the general, and the Libertarian candidate had attracted 2.3% of the vote. Similarly, in the ‘jungle special’ the Republican candidates in total attracted 1.0% more of the vote than the Democratic candidates in total. Second, in general Republicans have enjoyed greater success than Democrats in getting their base to turn out for non-Presidential elections. On the other hand, you have unprecedented amounts of money flowing in for the runoff, with more flowing to the Democrats; you have Trump casting doubt to his base about the election’s integrity; and you have a little bit of ‘demographic leakage’ to the Democrats (two months’ worth of deaths and voters turning 18). If forced to make a prediction, I think we’ll end up with a split decision with Purdue and Warnock prevailing, giving us a 51-49 Senate. But, I have very little confidence in that prediction. As was true in the general, it will likely take days before the Georgia drama is settled.

And before that happens, we’ll have an interesting January 6th on Capitol Hill. It has been expected for weeks that there will be formal challenges to certain states’ electoral votes in the House. It was less clear until recently as to whether any Senator was prepared to make a parallel objection in the Senate. But then Senator Hawley (R-MO) confirmed that, yes, he would make such an objection. That will place Republican Senators in the unpleasant position of having to vote, on the record, on whether or not to disregard certain states’ certified election results. In the wake of Hawley’s announcement, Senator Sasse (R-NE) penned a lengthy essay on his Facebook page about the election, referring to Hawley and others (albeit not by name) as “institutional arsonist members of Congress.” On the plus side, yesterday a Trump-appointed federal judge threw out the Gohmert v. Pence lawsuit on standing grounds. Amusingly, the previous day Pence’s DOJ-penned response to the lawsuit basically said that Gohmert had named the wrong defendant and that if he wanted to sue anybody it should be Congress, pointing out the inherent absurdity of suing the Vice-President in an effort to increase the Vice-President’s power.

A few bits and pieces, on the penultimate day of 2020:

• Yesterday the Republican who had just won election to the House from the Louisiana 5th, 41-year-old Luke Letlow, died from COVID-19. That makes him the first member of Congress (broadly construed, since he was days away from being sworn in) to pass away from the disease. He had been hospitalized a week before Christmas, less than two weeks after he actually won election. I hadn’t noticed this race until his death, but under Louisiana’s ‘jungle general’ system there was actually a runoff in early December; however it was between Letlow and another Republican (in the general the various Republican candidates garnered over 68% of the vote).
• Pelosi has confirmed that she will provisionally seat the Republican candidate who appears to have prevailed in the Iowa 3rd by 6 votes, notwithstanding the fact that the Democratic challenger will continue to have her appeal heard by the House Administration Committee.
• The latest results in the New York 22nd have the Republican challenger up by 29 votes, but there are still hundreds of votes that will be submitted to a judge for potential further inclusion in the tally.
• A supplemental legal filing in the Gohmert v. Pence lawsuit, regarding the Vice-President’s role regarding the counting of electoral votes, appears to indicate that the reason Gohmert has needed to sue Pence is that Pence (quite appropriately) refused to sign on to Gohmert et al’s absurd interpretation of the 12th Amendment.
• Trump continues to attack Georgia Republican politicians that he had previously endorsed, today calling for Governor Kemp to resign, calling him “an obstructionist who refuses to admit that we won Georgia.” Trump’s renewed frustration with Kemp comes in the wake of yesterday’s news that Georgia had completed a signature audit of over 15,000 mail-in votes from Cobb County, finding none that were fraudulent and only two for which the signature on the envelope did not match voter registration records, suggesting an accuracy rate of 99.99% in election officials’ process for validating mail-in votes before they were counted.
• Trump has appealed the Wisconsin Supreme Court’s recent unfavorable ruling to the U.S. Supreme Court. The core argument Trump is making is that Wisconsin election officials, in taking actions not explicitly approved by the Wisconsin legislature to allow certain types of voters to cast absentee ballots, violated Article II of the U.S. Constitution with the result that Wisconsin has “failed to make a choice,” which would then allow the (Republican-controlled) Wisconsin legislature to submit its own set of electors. If Wisconsin were the tipping point state for the Presidential election, this case might be of greater interest.
• The tight margins in both the House and Senate have surely impacted Biden’s thinking in selecting his Cabinet. No Senators have been selected to date, despite many of the leading Democratic presidential primary candidates being in the Senate (Klobuchar, Sanders, Warren). Harris’ post-inauguration replacement as the junior senator from California has been named by the Democratic Governor: Alex Padilla, who will be the first Latino senator from California. Three sitting House members have been named to Biden Administration posts, but they all represent safe Democratic districts: Louisiana 2nd (Richmond, to a White House post), which was gerrymandered to be the only Democratic-leaning district in the state; New Mexico 1st (Haaland, for Interior), which went 60-37 for Biden; and Ohio 11th (Fudge, for HUD), which went 80-20 for Biden.

First update in a while. As Eric B and Rakim put it, “It’s been a long time, I shouldn’t have left you…”

Let’s start with the easy stuff. Nothing has really changed in the Senate in the past month, except that Arizona’s Mark Kelly has physically assumed his new seat, replacing McSally for the lame duck session. We are only 8 days away from the two Georgia Senate runoffs, the outcome of which will determine whether the Biden presidency starts with 48, 49, or 50 Democratic Senators. These will have been the two most expensive U.S. Senate races in history. The latest polling averages from 538 have Perdue and Ossoff tied, and Warnock up a point on Loeffler; but who the heck knows. Anything could happen here.

Over in the House, the score is currently 222-211 for the Democrats, with two seats still in doubt:

• In the Iowa 2nd, the official result is that the Republicans have won the seat by 6 votes: 196,964 to 196,958. That would be a pick-up for the Republicans, the Democratic incumbent having retired. However, the Democratic candidate alleges that there were 22 votes that were inappropriately excluded from the count, and those votes broke 18-3 in favor of her, so she really should have won by 9 votes. The House may ultimately have to reach a determination on the matter.
• In the New York 22nd, as of Christmas Eve the Democratic incumbent was ahead by 14 votes: 155,625 to 155,611. However there are still issues to resolve and the new Congress will start with the seat vacant.

And then there’s the Presidential election.

On one level, things are progressing fairly normally. Biden’s final margin in popular vote was 3.5% and exceeded 7.0 million votes. In early December every state certified their election results, without significant drama. And on the constitutionally-prescribed day of December 14th each state’s Electoral College process went off, without a hitch. There were no situations where (say) the legislature submitted one set of electors while the governor submitted another, as was feared to be possible in Michigan (where Biden won and the governor is a Democrat but the legislature is Republican); although there were some theatrical exercises in some states, where the losing slate of Republican electors met to symbolically cast their votes for Trump. And there weren’t even any faithless electors: What ought to have been a 306-232 victory actually turned into a 306-232 victory, unlike in 2016. Nine days from now, the new Congress is scheduled to open the Electoral College votes and formally ratify what is already known to have occurred.

On another level, the phrase “Trump coup” has been bandied about a lot, and not in a bridge context.

Trump appears to be in complete denial that he could possibly have lost the election, and instead asserts that he actually won. As recently as Boxing Day he issued a series of tweets claiming without support that there was “massive election fraud” about which he has “absolute proof”, and that the 2020 election is the “biggest scam in our nation’s history.” Untold millions of people appear to accept, as an article of faith, that Trump is correct about this. Other untold millions of people, myself included, have no idea what he proof he thinks has.

Rather than concede the election, Trump (with the aid of numerous surrogates) have explored an increasingly bizarre series of potential maneuvers by which the election results might be overturned:

• There were scores of state lawsuits, primarily in the six most closely fought states (AZ, GA, MI, NV, PA, and WI), alleging various election irregularities and asking for extraordinary remedies. In general they went nowhere. The most impactful of these suits was in Wisconsin, where ultimately the State Supreme Court issued a 4-3 decision adverse to Trump’s interests, although even the minority was unclear about what remedy they would have granted.
• Texas filed an original action against GA, MI, PA, and WI directly in the Supreme Court, asserting that those four states’ purported failures to conduct legally sound Presidential elections somehow created violations of the U.S. Constitution for which Texas had standing to sue. Seven SCOTUS justices agreed that the Court should not accept the case, on the grounds that “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” The other two justices believed that it was mandatory on process grounds for SCOTUS to accept the case, but that in any event Texas was not entitled to any of the forms of relief that it sought. Perhaps the most troubling fact about this lawsuit is that many states (including some that don’t exist!) and a majority of Republican House members signed on to this lawsuit as amici.
• There has been reporting that some key Trump advisors, including Michael Flynn (the recently-pardoned former National Security Advisor), recently met with Trump to advocate that he invoke martial law in order to re-run the election in certain states. In response the Army Secretary and Chief of Staff issued a joint statement saying “there is no role for the U.S. military in determining the outcome of an American election.” Yes, but, we really needed to make that clear?!? Yikes.
• And now today there is a new lawsuit, Gohmert v. Pence. In this suit a Republican Congressman claims that portions of the Electoral Count Act of 1887 are unconstitutional, and that the right way to read the 12th Amendment is that it gives the Vice-President “exclusive authority and sole discretion” to determine which among competing sets of electoral college votes for a state should count. Remember those theatrical exercises I mentioned above, where the Trump electors in states Biden won went ahead and convened on December 14th to symbolically cast their votes? Well, per Gohmert, that represents an alternate slate of electors that Pence has the authority to select, in lieu of the ones formally submitted by the state. Somebody should build a time machine and mention this legal theory to Al Gore (or John Breckenridge).

And, of course, we’re well into Trump pardon season. So far he’s pardoned Flynn, Manafort, Stone, Ivanka’s father-in-law (who had famously been prosecuted by Chris Christie), and three Republican Congressmen who had been convicted of various offenses. And we’ve still got three weeks to go! Fun times.

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…