Monday, November 9, 2020

Part I

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What Does it Mean that the Associated Press has Called an Election? Probably More and Less Than Many Americans Think

The mainstream media are already referring to former Vice President Joe Biden as the President-Elect of the United States. Similarly, they are referring to California Senator Kamala Harris as the Vice President-Elect of the United States. Are they? Well in a certain sense, yes. But in a certain sense, no. In the sense that they are referred to now as the President and Vice President-Elect, it is because on Saturday, the Associated Press called the election, looking at the numbers in the electoral college for the Biden-Harris ticket. Does that make it so? Not exactly, but it does come close, especially as you look at the history of presidential elections, at least since 1848.

Since 1848, it has been the Associated Press that has called these elections, declared a victor. The very first they declared was President Zachary Taylor in that 1848 election. So we’re looking at well over a century of experience by the Associated Press in doing this. So is this a poll? No, it’s an actual matter of math. The Associated Press is using about 4,000 different people within their organization, located all across the United States to report on statewide elections, congressional and senate elections, and the presidential election.

The Associated Press makes the call after they have determined that the leading candidate is unstoppable in the electoral college. Sally Buzbee, who’s the AP’s executive editor, said in an interview with The New York Times, “If there’s no way for the trailing candidate to catch up, no legal way, no mathematical way, then the race is decided essentially.” She went on to say, “And if there is any uncertainty, or if there are enough votes out to change the result, then we don’t call the race.”

Now, evidence of AP’s credibility in this is that they have done this since 1848. And true to form in the 2000 election, when it was too close to call, they didn’t call it. They didn’t call it until the Supreme Court of the United States handed down this decision in the case, Bush v. Gore, that actually said in process the end of that election and its result. In a report that was released before election day, and this was reported upon by Katie Robertson or The New York Times, “The Associated Press will not predict a winner of the presidential election. It will not even name an apparent or likely winner. The Associated Press will make the call only when it is certain just as it has in every US election since 1848.”

Remember again that was President Zachary Taylor. Just as a footnote, he is buried not far from the seminary in Louisville, Kentucky. Another historical footnote, most people do not remember that he was the president of the United States whose daughter married Jefferson Davis, who had become the president of the Confederacy. History is never far from us.

Now what makes the AP significant in this sense is that even as other news organizations, such as CBS, CNN, MSNBC, NBC, most famously, even as they often say that they are calling an election, they aren’t calling so in a way that has turned out to be authoritative. That’s different for the Associated Press. But where do we stand then? Is Joe Biden the President-Elect of the United States? He certainly declared himself to be so in a victory speech of sorts that was delivered after the AP announcement on Saturday afternoon.

But here’s something just to keep in mind. And this isn’t at all, even related to politics, that is to say politics cannot interfere in the process that I’m about to describe. First, the individual secretaries of state or the chief election official of the various states will have to certify the election. Once that happens, then the machinery, the presidential level goes into motion for the vote of the electoral college, which will take place officially on December the 14th. But the electoral college doesn’t itself certify the presidential election. That happens only subsequent to December the 14th when the United States House of Representatives votes to certify the results of the presidential election.

But here’s a technicality. When does the incoming president become the president-elect? The technical answer is the moment the last polling stops on election day. At that point, the election itself over. And at that point, in retrospect, the winner of the electoral college vote becomes the president-elect of the United States. But the certification state by state hasn’t happened. The electoral college vote hasn’t happened. And of course the certification by the House of Representatives hasn’t happened. Once that takes place, the individual is officially the president-elect of the United States and is understood retrospectively to have become so once the polling ended on election day. But we’re in the in-between times and furthermore President Donald Trump has not conceded the election.

Now that’s a matter of politeness and politics, not of constitutional requirement. There is no requirement that the incumbent president and a contested election concede the election or that the losing candidate and any kind of contest concede the election. That’s a part of American democratic etiquette. It is not a part of constitutional necessity. Even on Saturday, President Trump who was playing golf was indicating that he was going to challenge the election. And from the beginning, President Trump has spoken of voting irregularities and outright fraud, and he had indicated that he intended to contest to the election.

But the actual legal mechanisms for doing that are fewer than you might expect. In order for the announced electoral results to be changed in any profound way, there would have to be not only the accusation, but the proving in court with evidence of actual malfeasance that would change the outcome of the election. Now, if there is such malfeasance, then it needs to be investigated. As a matter of fact, every single allegation eventually needs to be investigated. All wrongdoing needs to be prosecuted. And Americans, regardless of our partisan identity or our preferred candidate, regardless of our policies and principles, we have to understand that every vote, every legitimate vote, rightly cast needs to be counted and not one single vote wrongly cast should be counted.

And there is still time for some kind of game changer, but it’s going to have to be something different than what has been presented at least in public thus far, because thus far, there is nothing that would change the fundamentals of the election. And it should be at least in our minds that the election we knew was going to be tightly contested. And furthermore, even the Trump campaign acknowledged that at certain points in the election, it certainly appeared that President Trump running for reelection under difficult circumstances was an underdog in the race.

And furthermore, as I have stated over again on The Briefing, the American tradition of election day, where voters go to the polls and cast their votes, they physically go to the polls, that is the most easily counted and it is the most easily objective form of voting. But under the context of COVID-19, I’m going to predict that American elections are never going to be the same because Americans are creatures of habit. When they get in the habit of doing anything otherwise than they have done it before, especially if they claim that it is a convenience, then they often press for that convenience to be continued. But understand that the further you get from actually polling in a polling place, the more opportunity there is for a widespread pattern of malfeasance, or even just what could be described as an error or a fault in calculation.

The truth is the opportunities for malfeasance are of course more widespread with absentee balloting and with early balloting. If you have the possibility of ballots being collected in mass and turned in, if you have the opportunity for all kinds of different places or ballots to be dropped off, then some ballots can be dropped off that shouldn’t be, and some can be lost one way or another after they are dropped off. Furthermore, it was hardly a reassuring exercise of our ability to hold an election when it took so long for states that should have been in better position to count votes to have them coming in, in dribs and drabs over a process of at least five days, five excruciating days when you understand what is at stake.

There is one further issue here we have to keep in mind. And that is that the American government is a huge organizational challenge and that governmental system and the political class and the culture at large have to adjust to the knowledge of who will or will not be the president of the United States, who will take the oath of office on January the 20th of 2021.

One indication of that, that you might not know about in terms of mainstream media coverage, is that the General Services Administration, which is you might describe a central bureaucratic office for the federal government, it has to move into a transition process with a newly elected president. And the word came on Sunday, that the GSA, as it is known, is working with officials close to the Biden campaign to officially invoke that process. As of Sunday, senior officials in the Biden administration have been given federal cell phones and laptops with federal security encryption so that that process could begin. And the transition team has already been assigned about 10,000 square feet of office space in Washington DC.

So the bottom line is that the situation could change, but at this point it has never changed in the course of American electoral history. There could be something we don’t know that we will learn in coming days, but at this point it’s going to have to be something we don’t know that would make a material change in the outcome of the election.

One final thought along these lines, this is irreducibly at some points a political issue. And thus it was not by accident, it was not for nothing that former Vice President Joe Biden and Senator Kamala Harris held that public event on Saturday and claimed the victory. Clearly they are trying to send the signal that America should accept the election with them as the incoming president and vice president and get on with it. It’s also political that the incumbent President of the United States Donald J. Trump has not conceded the race and has not yet made exactly clear what he intends to do in coming days. We’ll find that out as it happens.

Part II

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Down-Ballot Republicans Outperformed Polling, Foiling Democrats’ Dreams: Biden Plans to Turn Swiftly to Executive Orders

But given what we know right now, there are some very interesting facts that aren’t going to be very thoroughly discussed by the mainstream media. One is this. It turns out that even as he at least is announced to have won the presidency, Joe Biden did not have deep coat tails, coat tails referred to in politics as the ability to bring candidates at lower levels of the election question into victory, because you sweep them up in the vortex of your own victory.

If Joe Biden is the president-elect of the United States, he had very short coat tails. As a matter of fact, his party lost seats in the United States House that was fundamentally not expected. And the Republicans at least have a very real hope of holding on to majority control in the United States Senate. As we shall see this week, that will come down to two Senate seats in one state. Strangely enough, the State of Georgia and a special election that will be held on January the 5th. More about that later.

But in contrast to Joe Biden’s very short coat tails, it turns out that President Trump, even if he has lost the election, had very long coat tails. Where do you see this? Well, you see it in the fact that Republicans outpolled in many areas. Where they were expected to do worse, they did much better, including the fact that there was a pickup, a net pickup of seats in the House of Representatives for Republicans.

And of course there was the expectation that several strategic Republican senators would lose their seats, most importantly, in this case, Susan Collins of Maine and Thom Tillis of North Carolina. It is clear at this point that Susan Collins defied all odds by keeping her seat. And Thom Tillis appears to be keeping his as well. But both of these candidates have President Donald Trump to think because it was his energy that pulled out a record Republican vote in those areas, defying all odds.

Part III

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Why Have the Polls Been Way Off for Two Straight Presidential Elections? Pollsters—Actually, the Entire Political Class—Don’t Know Where to Find Conservatives, and Maybe Don’t Care?

But next, the inherent weakness of a Democratic administration’s political posture is made clear by the fact that a team of reporters, The Washington Post are already telling us with a headline, “Biden Plans Immediate Flurry of Executive Orders to Reverse Trump Policies.” Now a little bit of history is very, very important here. All presidents have used executive orders. They are, after all, the chief executives. So when they order anything, that amounts to an executive order. But used in the modern context, an executive order is a directive from the president of the United States to be respected by federal agencies throughout the entire system on the issue of the president’s choosing and determination.

Executive orders are to be the fulfillment of the president’s constitutional executive authority. They are not to be in conflict with official actions undertaken by the Congress, and they are not given the status of legislation. Legislation is something that can’t be changed without the legislation itself being modified or some kind of subsequent court decision.

But when it comes to executive orders in the modern age with the growth, the massive growth of the federal bureaucracy, no president was so insistent upon using executive orders rather than legislation. I’ll put it differently. In his eight years in office, President Barack Obama tended to use executive orders like no president ever before him to achieve policies that he could not get through the legislative process. He couldn’t get them through Congress. So he used executive orders.

President Trump has done basically the same thing for four years. And even as many liberals like the executive orders handed down by President Obama, many conservatives, and I’ll count myself among them, were pleased with the vast majority of the executive orders handed down by President Trump.

But here’s the problem. When you do elect a chief executive, the new chief executive can in time reverse his predecessor’s executive orders. And so you could have President Trump who reversed many of President Obama’s executive orders. And then if indeed Joe Biden takes the oath of office on January the 20th, then he can issue what The Washington Post has described here as an immediate flurry of executive orders, particularly to reverse many of the orders handed down by President Donald Trump.

Now, what does that tell you? Well, it tells you that you still have a system in which presidents are acting without regard for trying to gain legislative victories. That is a constitutional imbalance is not a sign of healthy government, but it is a sign of the breakdown that comes with divided government. And in the case of this headline, it isn’t the headline that the Democrats thought they were going to see even on election day. Even on election day, they were sure they were going to see headlines such as, “Now that the Democrats are in complete control of the presidency and the House of Representatives and the Senate, get ready for an absolute deluge of progressive legislation that’s going to be forced through the Congress and signed into law by a President Biden in the first 100, 200, 300 days of the administration.”

But guess what? That didn’t happen and it’s not going to happen. Thus, you see this article in The Washington Post indicating that the transition leadership on behalf of a Biden administration are now moving forward with plans for executive orders. And in this case, you can certainly say that Biden learned this bad lesson from former President Barack Obama.

But next I mentioned that the Associated Press is not operating as a poll, but plenty of polls are operating as polls. And once again, they were off, not off a little bit. In many cases, in most cases, they were off by a lot. And this is politically important and is also very rich with worldview implications as well. When you’re looking at the rise of modern polling, you’re really looking at the formation of what became known as the Gallup organization. An opportunity was seen by a young man by the name of George Gallup. He formed the organization, named it for himself, and started what became known as the Gallup Poll.

The first major presidential election in which the Gallup Poll played a role was in 1936. Ever since then, poll after poll after poll, that we’re talking about hundreds of polls, have been offered, telling us how the American people are about to vote. Now, some of these polls have been way off in the past, but the problem is we’re in the second election cycle when they’re not by a little. They’re off by a lot.

The polls and the political class said that it would be impossible for Donald Trump to be elected president on election day in 2016, but he was. Clearly so, a very clear victory in the electoral college. The pollsters were left having to explain why they could have been wrong, why they were so wrong. But then they also in the aftermath of the 2016 election promise that they were going to clean up their act and that there would be no such repeat in 2020, except there was.

USA Today last week ran a cover story with the headline, “So how wrong were the polls this time? It’s complicated” said the headline in the article by Ryan W. Miller. And of course it is somewhat complicated, but the uncomplicated fact is that many of these polls were off by a lot. And yes, it matters. Why does it matter? Because the pollsters and the parties understand that voters are not only being analyzed about how they are likely to vote, but the announcement of a poll does itself often change voting behavior. At least it can change voting behavior. I’ve talked about this in the past. It turns out that Americans like to vote for the winning candidate, or at least to say that they voted for the winning candidate. So when the polls come out telling us that it’s impossible that candidate A will win and that candidate B is sure to win, more Americans indicate subsequent to the poll either that they did vote for candidate B or at least said they did.

Here are some examples of how off the polls were in the state of Wisconsin. FiveThirtyEight showed a Biden lead at almost 8.5 points. RealClear Politics said that the Biden spread was a 6.5 advantage. But it turned out that even as a New York Times poll with Siena College indicated that Biden was leading by 11 points. But as the week ended, the official count we were given is that Biden was ahead by less than 1%. Now, remember that means that the actual polls were off by as much as 10%. In Florida, Biden was said to be up by at least something like 2.5%, but he lost by 3.5%. You do the math. That means 6% off. That’s pretty massive. It’s not being off by 10% as some were in Wisconsin, but being off 6% is momentous. And of course, you’re talking about the difference between victory and defeat here.

Similarly, you had polling incongruent as they are sometimes called in states like Michigan. Of course, pollsters are going to say we came pretty close when it came to the national election and the general vote, but here’s the deal. The general vote does not elect the president of the United States. Given the electoral college, it comes down to state results. And once again, it comes down to the fact that the pollsters significantly undercount conservatives and Republicans.

Or we can put it another way, whoever is doing these polls, and this is a broad array of rather elite institutions, they don’t know where to find conservatives. And when they find them, they’re not sure how many they have found. We could say that that’s not just a problem with polling. It’s a problem with the entire political class.

Part IV

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“Get in Line with the Moral Revolution” — Both Joe Biden and the State of Nevada Make the Demands of the Sexual Revolution Clear

But finally, a very clear sign of what a Biden administration would be about and another clear sign of the velocity of the moral revolution came about in the speech given by Joe Biden on Saturday, when he became, as The Washington Post said, “The first president-elect to mention the transgender community in a victory speech.” The subhead in the article, “It was not forced, and he did not hesitate.” That was a statement that had been tweeted by a transgender activist. The Washington Post noted it and put it in the article.

We are told as the article says that it’s the first victory address ever to mention the transgender community, and The Washington Post through the column known as The Lily pointed to the fact that throughout the campaign, Joe Biden has made abundantly clear that he would be the most activist president in American history on behalf of the entire array of LGBTQ issues.

He said that he would reverse Trump administration executive orders, that he would seek to bring about the passage of the Equality Act, that’s a direct conflict with religious liberty, to do so in the first 100 days of his administration. He has pledged just about everything, including in a town hall speaking to a mom about a child that claimed transgender identity, that there must be absolutely no discrimination. But what that actually means is using the massive power of the federal government to coerce Americans, regardless of religious convictions, to get along with the revolution and to accept it.

Taking us back to the issue of executive orders, then candidate Biden said, “I will flat out just change the law, eliminate those executive orders. There should be zero discrimination.” It’s not only after the election. It was, as we have pointed out many times, abundantly clear before the election that Joe Biden and Kamala Harris would, if elected, head an administration that would steam roll the LGBTQ revolution. They told us so. Now they’re telling us so again.

It’s also interesting that on the ballot in the state of Nevada was a constitutional amendment to state that marriage would be between “couples regardless of gender.” Now wait just a minute. Same-sex marriage, according to the United States Supreme Court and its infamous decision, Obergefell in 2015, said that same-sex marriage is legal in all 50 states, but in Nevada it was already legal because of the action of a US circuit Court of Appeals a year before in 2014. So why was the issue on the ballot in Nevada at all? Well, it has to do with the fact that 18 years ago, the legislature there in Nevada adopted legislation that identified marriage as the union of a male and a female, and only that union. And thus, you had an effort to try to, you could see the argument, bring Nevada’s constitution in line with the current law according to the Supreme Court of the United States.

But the politics, and this was also clear as at least momentum in the end stages of this particular electoral question, was focused on the incoming justice of the United States Supreme Court, Amy Coney Barrett, and whether or not there might be a reversal or even a revisiting of the Obergefell decision in coming years. But perhaps at this point, we should know that we shouldn’t be all that surprised by the fact that this was the state of Nevada, famously libertarian and in this case famously flimsy when it comes to marital law in the first place, the site of quickie marriages and quickie divorces. Now it’s the state of quickie constitutional amendments to get as quickly as possible right in line with the moral revolution.

It is absolutely certain that this is going to be a fascinating week in American history. We’ll be thinking about it along with you day by day.