The Sweep: Campaigning in the Biden Era

A quick look back and an early look forward to 2021, 2022, and a hint of 2024.

This time of an election cycle is like when you first put that kettle of water on the stove to boil. It’s going to take a while for anything really to happen, but sometimes it’s fun to stare into the water and see where those tiny little bubbles first start to form. Or it is for some of us. 

Next week, we will take a nice, long dive into the emerging fault lines in the 2024 Republican presidential primary. After all, we only have roughly 1,102 days until the Iowa Caucus! Senators Ted Cruz and Josh Hawley are throwing shade at one another, Sen. Tom Cotton is staking out some space far from the madding crowd, and we hear Vice President Mike Pence is keeping some of his current staff on payroll. 

And last week, former UN Ambassador Nikki Haley announced the creation of the Stand for America PAC, saying that it will be “laser-focused on the 2022 midterms.” I’m sure it will. After all, helping elect candidates who can endorse you later is a tried and true way to spend your time before a presidential run. Just ask Mitt Romney, who in 2010 visited 30 states and raised and spent more than $5 million though his PAC to support 188 congressional candidates, two dozen Senate candidates and 20 Republicans running for governor, before clinching the Republican nomination 18 months later. 

Money raised into a federal PAC can also be used to get the most highly coveted campaign operatives on payroll early. Oh, and did I mention that any money that happens to be left over in that PAC after the midterms can be rolled over into a presidential campaign? 

But like I said, we’ve got another week until we have to start counting down until 2024. 

The Voters

We are but one day away from the beginning of the Biden administration. In the world of campaigns that means two things: primary season has begun, and Republican candidates will be trying to determine how closely to align themselves with the outgoing leader of their party. 

The candidates who most often win are the ones who can appeal to voters where they are—not where they wish they were. As a former boss once told me, “you can’t convince someone of something they know isn’t so”—even if it is. 

With that depressing truism in mind, these numbers put together from Axios last week tell us more about where Republican voters are and where a lot of Republican candidates will be going in the next cycle:

  • Two-thirds of House Republicans voted to decertify election results—in the hours after an insurrection

  • 93% of House Republicans voted against impeachment 

  • 64% of Republicans said they support Trump’s recent behavior

  • 57% of Republicans said Trump should be the 2024 GOP candidate

  • Only 17% think he should be removed from office--even fewer in the Washington Post-ABC News poll

  • 36% call themselves “Trump Republicans”

Perhaps the most relevant number to would-be future Republican candidates: 57 percent of Republicans and those that lean Republican want Trump to remain a major political figure after he leaves office. 

(For current office holders, 59 percent say that they want their congressional leaders to “stand up to Biden on issues important to GOP voters, even it its harder to address critical problems facing the country.”)

And yet despite all of the numbers above, one number stood in stark contrast. Pew Research Center has a running poll on presidential approval, which means we can compare numbers over time--always more reliable than a stand alone snapshot. As the Pew folks put it:

Throughout most of his presidency, Trump’s job rating remained more stable than those of his predecessors; it never surpassed 45% or dipped below 36%. But his job approval now stands at just 29%, down 9 percentage points since August and the lowest of his presidency. Much of the decline has come among Republicans and GOP leaners:  Currently, 60% approve of his job performance; 77% approved in August.

Senate 2022 Recruitment

Sen. Rick Scott of Florida just took over as the head of the National Republican Senatorial Committee. He will be responsible for recruiting candidates to challenge Democrats in Georgia, Arizona, Nevada, and New Hampshire and to run in the open seats in Pennsylvania and North Carolina. Nothing will be more important to winning back a majority in 2022 than who Republicans find to run in those races and whether they can protect them from bruising primary fights along the way. 

Plus, it’s a big fundraising job at a time when a lot of donors—especially the corporate ones—are shying away from the GOP. AT&T, Nike, Comcast, Dow, Marriott, Walmart, Verizon and several more companies vowed not to contribute to any senator who voted in favor of the objections to the electoral counts for Arizona or Pennsylvania on January 6th. Corporations don’t like insurrection talk, sure, but they also don’t like losers. And the Republicans just lost control of the Senate after losing Georgia with two of the most winnable races on the map in 2020. 

But Scott is no political dummy—he’s won statewide office in Florida three times—and he voted against certifying Pennsylvania’s Electoral College slate even after the riot at the Capitol. It’s not hard to read that as a sign for where he thinks the votes will be in 2022. 

How the GOP Lost Georgia

The double loss in Georgia, which cost Republicans control of the Senate for at least the first two years of the Biden Administration, will be a driving topic of conversation through the next election cycle. There may continue to be a lot of different theories about why Republicans faltered in a former stronghold—false election rigging claims, Trump not being on the ballot, Georgia officials who didn’t back Trump sufficiently, etc. But there can’t be much doubt about how they lost them, as this helpful graphic from the Washington Post makes clear: More Republicans than Democrats who voted in November stayed home in January.

New York Mayor’s Race

Andrew Yang is set to announce his candidacy for the Big Apple’s biggest job any day now. During his presidential race, Yang received fawning coverage from a lot of media outlets—my favorite was from Wired, “Andrew Yang Is Not Full of S--t”—as candidates with no shot often do. 

And while Election Day in Gotham is still 10 months away, Yang and his team must have been taken aback to learn that the honeymoon is over, because this isn’t the headline you want potential donors to be reading on the eve of your announcement. From Politico: “Andrew Yang left New York as COVID surged. Now he wants to be mayor.” And as a former communications operative, you don’t need me to tell you what this line means: “His team declined to provide a breakdown of how much time he spent in New York City last year.” 

As hit pieces go, however, the bark may be worse than the bite. Plenty of New Yorkers may be willing to overlook that a guy wanted more room for his kids—including a son who has special needs—during the pandemic if his #MATH checks out. The better question might be why anyone would want to have their second home near Poughkeepsie, of all places.  

New Jersey Governor’s Race

An interesting story emerged last week about Doug Steinhardt, “a pro-Trump candidate for governor of New Jersey” who “abruptly dropped his month-long campaign” citing “unforeseen professional obligations.” Frankly, someone running for governor intends to end their professional obligations—so it’s a pretty big red flag when that’s your stated reason for dropping out. Of course, the “dropping out to spend more time with my family” statement now connotes lord-only-knows-what combination of sexual improprieties, so I understand why a candidate might want to try the professional line instead. 

Even so, Politico found some in New Jersey wondering whether his campaign wasn’t the first political casualty of January 6th for a candidate that had tied himself closely to Trump.

This leaves former Assemblymember Jack Ciattarelli as the GOP’s likely nominee. Ciattarelli “was a featured speaker at a recent ‘Stop the Steal’ rally that followed the president’s false claims of campaign fraud” and blamed the ensuing violence on “‘political leaders in both parties’ who ‘share responsibility for hyper-partisan rhetoric.’”

Bear in mind, New Jersey—despite electing Chris Christie twice—“has a million more registered Democrats than Republicans, hasn’t elected a Republican U.S. senator in nearly 50 years and has voted blue in every presidential election since 1992.”

Which is all to say, The Sweep most likely won’t be spending a lot more space on this race unless something changes. 

The Sweep: Insurrection Mailbag Edition

This is a campaign newsletter. But inherent in any discussion of campaigns is self-government. What happened last week was an assault on the very idea of free and fair elections. If one side can simply say—without evidence and despite losing in every court at both the state and federal level—that they do not accept the outcome, then our Constitution doesn’t mean much. 

Our Founding Fathers listed 27 grievances against the mentally unstable tyrant King George in their Declaration of Independence. They wrote that the “history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.” Included in their list of complaints—all of which are worth a walk down our collective national memory lane here—is that the king “excited domestic insurrections amongst us.” And they note that the king, “whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.”

My point in all this is to remind us that our Founding Fathers wrote our Constitution 11 years later with that 1776 document very much in mind. Their aim—as Madison and Hamilton wrote in Federalist 47 and 69 respectively—was to create an executive wholly unlike the king and less likely to result in that “dangerous tendency to such an accumulation.” That is why the impeachment power exists: to provide the legislature a check against a would-be tyrant. 

And so I’d like to answer some of your more legal, constitutional questions that touch on these issues.

1. Can Congress bar the president from running for office again in 2024 with a simple majority under their impeachment power?

Probably not. Article I of the Constitution says:

… no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States ...

Conviction requires two thirds of the current 99 members of the Senate. Without the new Georgia senators—who are not expected to be seated until after inauguration day—a conviction would require the current 48 Democrats and 18 Republicans. As the “judgment” upon conviction, the Senate can remove the person from office “and” disqualify him from holding any federal office again. 

There have been some news stories that mention two judges—one from 1862 and one from 1913—that were barred from holding future office by a simple majority vote. But that was after two thirds had already voted to convict them on articles of impeachment. Arguably at that point, there didn’t need to be a separate vote at all—the Senate can bundle together conviction, removal, and disqualification all into one. 

Regardless, it is not possible for the Senate to use its impeachment powers to bar Trump from running again in 2024 without first getting two thirds of the senators to vote to convict.  

2. Could the President be barred from running for office again in 2024 using Section 3 of the 14th Amendment?

This argument is gaining some steam, so let’s dissect it. The 14th Amendment was ratified in 1868 following the Civil War. It is fundamental to ensuring the equal protection of the laws to all Americans and is cited every single day in courts across the country. But Section 3 has gotten a lot of attention for the last century or so. It says: 

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

In other words, if anyone—including a state officer—has ever taken an oath to defend the U.S. Constitution and then violates that oath by “engag[ing] in insurrection or rebellion” that person cannot hold any state or federal office again without a specific congressional intervention. 

But what does “insurrection or rebellion” mean outside of the context of the civil war? If Trump ran again in 2024, who would have standing to bring a lawsuit in court to argue that he was automatically barred by this provision? 

In 1870, Congress made it a crime to accept a position in violation of Section 3, punishable by up to one year in jail and a $1,000 fine. But that would mean that a prosecutor could need to indict Trump only after he had been sworn in as president. And presidents can’t be convicted of a crime until they leave office. So that feels a little toothless as it applies to the presidency. 

There is one other footnote to this conversation, though. In 1898, Congress passed a law that allowed it to disqualify someone from holding office through legislation. In other words, a majority of the House and Senate with the signature of President Biden could pass a law that said “Donald Trump shall be disqualified from holding federal or state office for violating Section 3 of the 14th Amendment related to his actions on January 6, 2021.”

3. Can the president pardon himself?

According to the Department of Justice, no. On August 5, 1974—four days before President Nixon resigned in the face of almost certain impeachment in the House—the Office of Legal Counsel in the Department of Justice issued a three-page opinion stating that “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” 

But they also provided some helpful advice to a president who might be in search of a pardon: “If under the Twenty-Fifth Amendment the President declared that he was temporarily unable to perform the duties of the office, the Vice President would become Acting President and as such could pardon the President. Thereafter the President could either resign or resume the duties of his office.”

This means that there would be no constitutional issue if, on the morning of Inauguration Day, Trump signed over temporary power to Vice President Pence under the 25th Amendment, Pence issued a pardon to Trump for all crimes—charged and uncharged—before January 20, 2021, and then Pence handed back power to Trump until Biden takes the oath of office at 12:01 p.m. that day.

4. Can Congress at least take away the president’s pension? 

Under the Former President’s Act, a former president is entitled to receive a yearly salary equal to that of a Cabinet secretary, staff, and office space. “Former president,” however, is defined as someone who 1) ever served as the president of the United States and 2) left the presidency for any reason “other than by removal pursuant to section 4 of article II of the Constitution of the United States of America.” So if the Senate convicts the president and removes him from office, then all of that goes away. 

Note, however, that if the Senate convicted Trump after he left office, then he would still qualify as a former president because he would have left the presidency upon Joe Biden being sworn in—not because he was removed.

Under 18 U.S. Code §3056, former presidents—not defined in this section—receive lifetime Secret Service protection as well. 

5. What happens if the House passes articles of impeachment this week, but the Senate doesn’t conclude its trial until after the president has left office?

Or to phrase this another way: Can a former president be impeached? 

There’s no definitive answer to this question either in the Constitution’s text or our history. Let’s start with the text:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

It doesn’t say anything about former office holders. There is a legal canon of interpretation referred to as expressio unius est exclusio alterius: To express or include one thing implies the exclusion of another. In this case, by including the list of specific offices—not persons who hold or have previously held the office—the framers intended to exclude former officeholders.

But does this mean that presidents can go on a high crimes and misdemeanor spree in the few days before they leave office, free of fear because there would never be enough time for impeachment? 

Maybe. 

First, a president can be arrested the moment after his or her successor takes the oath of office. So any last minute crime spree could be dealt with by prosecutors. In fact the Constitution makes specifically clear that even a president who is impeached and removed from office can then be tried in criminal court for the same conduct. 

But what if the impeachable offense isn’t criminal? What if it’s just that a president tried to ignore our Constitution and our courts and declare himself the winner of an election that he lost?  Or that a president delayed in approving federal law enforcement from going to the aid of Congress when it was under attack by an armed mob? Those aren’t crimes, after all.

As I mentioned in my little pardon-for-conviction proposal on the website this weekend: 

In 1876, the same year as one of the most hotly-contested presidential elections in history, President Ulysses S. Grant’s secretary of war, William Belknap, resigned just before the House could vote unanimously to impeach him for profiting from a not-so-clever kickback scheme to fund the lavish parties he was throwing at his home in D.C. The Senate tried him—with Gen. George Custer as a star witness—but only 35 senators voted to convict, which was just shy of the 40 needed to meet the two-thirds threshold required by the Constitution. The senators who voted to acquit didn’t dispute Secretary Belknap’s guilt; they did not believe they could impeach someone who had already left office.

To some extent, this will be like the question of what is an impeachable offense. And the answer to that is whatever the two houses of Congress say it is. Is a former officer impeachable? 

Perhaps the Senate will tell us after January 20.

The Sweep: Democrats Take the Senate, but For How Long?

Plus, a look ahead to the 2022 Senate map.

Welcome to 2021—an election year for some states and a short break for Georgians who will be back at it in no time, hearing ads about their newly elected senator, Raphael Warnock, who is back up in 2022. 

Campaign Quick Hits

Least shocking statistic you will read today: Nine of the top 10 highest-spending advertising Senate races were in the 2020 election cycle and more money was spent on advertising in the Perdue/Ossoff race than any Senate race in our nation’s history at $253 million. 

Yes, Virginia, there is a governor’s race: Former Virginia Gov. Terry McAuliffe announced that his 2021 Virginia gubernatorial campaign had raised $6.1 million in 2020, ending the year with $5.5 million cash on hand. He was already the odds-on favorite to win the primary—and the general election for that matter—but his fundraising prowess continues to astound. In 2017, Ralph Northam won the Democratic primary with a total of $6.4 million. By this point, he had raised only $3 million and had $2.2 million on hand.  And the only person ever to have outraised Northam in the history of Virginia elections? Why, yes, it was Terry McAuliffe in 2013. 

New man on the Minnesota Vikings: Minnesota’s Democratic Gov. Tim Walz is watching his 2022 back in a state that may or may not be creeping redder. Minnesotans last elected a Republican governor—Tim Pawlenty—in 2006. But in 2016, Trump lost the state by only 1.5 percent (although he lost it by just over 7 points in 2020). The more interesting question for now will be which way Republicans decide to go. President Trump’s personal friend, MyPillow CEO Mike Lindell, told the Minneapolis Star Tribune he is 90 percent to 95 percent likely to run for governor next year. Lindell said that he has spent “more than $1 million of his own money” to uncover evidence that Donald Trump won the 2020 election “and that he has been working closely with former Trump national security adviser Michael Flynn on probing allegations of election fraud.” There are plenty of other candidates, though, both from the usual ranks of elected officials and at least a couple Minnesota Vikings: Matt Birk and Chad Greenway.

A constitutional tail wag: I am keen to tell young communications professionals that their job is not just retrospective (“Oh, hey, so I got caught with a prostitute last night so I’m gonna need you to spin that for me”). They should be in the room as decisions are being made (“Sir, if you decide to visit a prostitute tonight, we have three options of how we would spin that if you get caught so let’s walk through those”). But—and this is the really important part—it is always a communication director’s job to sell the right choice reached for the right reasons. Decisions small or large should never be based on the communications strategy or because the comms person in the room says it’ll be easier to spin or more popular. It’s her job not to let the communications strategy tail wag the policy dog! 

With that in mind, I was struck by the statements sent out by Republican Sens. Tom Cotton and Jerry Moran—both of whom voted with Trump 90 percent of the time in the 115th Congress—yesterday. 

“The founders entrusted our elections chiefly to the states—not Congress. They entrusted the election of our president to the people, acting through the electoral college—not Congress. And they entrusted the adjudication of election disputes to the courts—not Congress,” wrote Sen. Cotton in an op-ed for his hometown newspaper. 

And Moran who wrote for his paper, “Voting to object to the electoral process without a constitutional basis to do so may be expedient and lead to short-term political benefits for some, but would risk undermining our democracy — which is built upon the rule of law and separation of powers. No victory for one’s cause today can be worth what we would lose tomorrow.”

That’s the way it should be done. Make a decision—even an unpopular one with your voters—and then give your constituents the best arguments for why you made it. That’s what makes this a representative republic. We don’t elect people to vote in our place. We elect people who will study the issue, read the bill, follow their conscience and let the chips fall where they may at the next election. 

Georgia: It’s Finally Over

One could argue that 2020 actually came to an end on January 6, 2021. Democrats will control both Congress and the White House in just a few weeks, as perhaps more than 100 of Republicans in Congress will raise meritless objections today to the electoral votes sent in by the states. 

With 50 seats in the Senate, Vice President Kamala Harris will be the tie-breaking vote and as long as Sen. Joe Manchin—the most conservative Democrat in their caucus approves—Biden is cleared for take off. No doubt the Biden team held off on announcing its pick for attorney general, for example, to see how these races turned out. And Mitch McConnell will once again have to grow accustomed to the title of minority leader.

So what actually happened in Georgia? It’s very simple: In a special election with wildly high turnout, Democrats slightly overperformed and Republicans underperformed. Let’s break down some of what we know.

About 4.5 million people voted in the two races—90 percent of the turnout in November, an unheard-of percentage for a special election. The last Senate runoff in Georgia was in 2008 when Saxby Chambliss won reelection and turnout was just above 53 percent of  that year’s presidential election. 

But to look at how turnout actually broke down, we should dig into the Perdue/Ossoff race, in which Sen. David Perdue led challenger Jon Ossoff by 88,000 votes in November, missing the 50 percent cutoff to avoid a runoff by just fewer than 14,000 votes. Based on their November results, Perdue is now running at 89 percent turnout from his voters but Ossoff is running at 93 percent. And that’s how special elections are won or lost. After that, the rest is just details. 

But diving into some of those details: Seven in 10 voted early—either by mail or in person. Not surprisingly, the trends on how voters voted held from November: The two Democrats held a 35 point lead with mail-in voters, and the two Republicans held a 25 point lead with Election Day voters. 

An interesting nugget on spending in these races: Republicans outspent Democrats overall. But the Democrats’ campaigns actually spent quite a bit more than their Republican counterparts—$160.1 million to $99.8 million. It was outside Republican groups that made up the difference, outspending Democrats $171.2 million to $58 million. Given the limitations placed on outside groups—they can’t coordinate their activities or messaging with the campaigns themselves—it’s becoming clear that the money is coming in at a highly diminished return. And remember that Democrats outspent Republicans in all nine Senate races that they lost in November.

And in the end, it wasn’t even all that close. Sen. Kelly Loeffler lost her seat by more than 53,000 votes—more than  four times as many votes as separated Biden and Trump. As of publishing, Ossoff leads Perdue by more than the Biden-Trump margin as well. 

The “why” will be debated by pundits and operatives alike until November 2024. Did Trump’s election fraud rhetoric cause some of the most staunch Republican base voters to stay home? Did Georgia’s black voters turn out in higher numbers because Rev. Warnock was set to make history as its first black senator? Is the population growth in Georgia—and specifically in and around Atlanta—irrevocably shifting Georgia’s voting pattern blue?

No doubt you have your own thoughts on why Democrats were able to win both seats. A lot of pundits will tell you they are certain they know. In the end, though, elections are made up of a whole lot of factors, and it will take us until 2022 and 2024 to definitively be able to pull any of them apart.

2022 Senate Races: An Introduction

We’ll be spending a lot of time in this newsletter on the various 2022 races—none more than the Senate races, I imagine. But before we take a deep dive into any given race, we need to set the stage. 

Thanks to the results last night, Republicans enter this Congress with 50 seats and 50 senators will caucus with the Democrats (remember Vermont’s Bernie Sanders and Maine’s Angus King are technically independents). But, of course, Senate elections aren’t spaced out evenly. Senators are divided into “classes” based on the year of their election and the Class 3 Senate seats are up for election in 2022. As of now, there are 34 races—with seats that are currently held by 14 Democrats and 20 Republicans.

Knowing nothing else, those are bad numbers for Republicans. It means they will be on defense in a lot more states. But it gets worse as you dive into where those seats are.  Seats controlled by Republicans in Florida, Iowa, Missouri, North Carolina, Ohio, Pennsylvania, and Wisconsin will all be up. And Democrats really have only Arizona, Nevada, and New Hampshire to worry about. Oh, and Georgia, of course, with Raphael Warnock completing the final two years of the term of retired GOP Sen. Johnny Isakson. 

All in, Republicans really have three races that could easily flip to the Democrats—North Carolina, Pennsylvania, and Wisconsin—and Democrats could have a tough time defending New Hampshire, which I think could be more vulnerable than even Georgia at this point.  

Here’s a more detailed breakdown of all of the races with any potential to change hands:

Florida: Republican Marco Rubio will almost certainly be running for reelection. That’s good news for Republicans. He won only 52 percent of the vote last time, but that was after a last-minute decision to run for reelection when his doomed presidential run had left him fairly bruised. He still managed to beat his Democratic opponent by nearly 7 points. Plus, the trends in the state were good in November. It’ll be an expensive race and could be competitive if Democrats find the right candidate, but it’s safe to bet Republicans can hold onto this one. 

Iowa: Republican Chuck Grassley won with 60 percent of the vote last time and would no doubt be able to do it again … if he runs. And that’s a dilemma. Do Republicans encourage the 87-year old Grassley to step down so that his would be-replacement is running in a midterm election, which generically favors the GOP? Or roll the dice and run the risk that Grassley dies in office—leaving the governor to name his replacement but potentially setting up a Senate race in 2024, potentially with Democratic incumbent Joe Biden at the top of the ticket, which could boost Democratic turnout big time. Bottom line: If Chuck runs, he wins—but Republicans are just putting off a tighter race down the road.

Missouri: Republican Roy Blunt won reelection in 2016 with just under 50 percent of the vote in 2016, beating Secretary of State Jason Kander by 3 points. Trump carried the state by 16 points this last time around, and the state has been trending redder and redder since John McCain pulled out a win with 3,903 votes in 2008. The state last elected a Democrat in 2012, when Claire McCaskill won the incumbent lottery by getting Todd “legitimate rape” Akin as her opponent. There’s no reason to think Blunt is in trouble, assuming he runs.

North Carolina: Republican Richard Burr currently holds the seat but he has announced his retirement, which means this race may be the most contested open seat of the cycle. Burr won it in 2016 by just more than 5 points but he was forced to step down as the chairman of the Senate Intelligence Committee the day after the Department of Justice executed a search warrant related to insider trading allegations around his stock sales in the weeks before the COVID-19 pandemic tanked the stock market in March. Trump carried North Carolina by less than 2 points; the state reelected Republican Sen. Tom Tillis but also elected a Democratic governor. This will be a race where candidates matter as will the popularity of the Biden administration.

Ohio: Republican Rob Portman shocked a lot of folks when he won reelection in 2016 by nearly 20 points against former Democratic Gov. Ted Strickland in what was supposed to be “one of the most competitive Senate races in the country.” Given that blowout and that Trump won the state by 8 points in November, the only question is whether Portman’s luke-warm stance on Trump cuts into his margins. Even if Tim Ryan, the Ohio congressman who ran for the Democratic nomination in 2020 were to run, this is a safe seat for Republicans unless something drastically changes.

Pennsylvania: Here’s a big problem for Republicans to hold the Senate. Pat Toomey won reelection in 2016 by 1.5 percent against Katie McGinty, the largely unknown chief of staff to Democratic Gov. Tom Wolf. And worse: Toomey has already announced his retirement. Can Republicans hold onto it? Sure. Will they? It’s hard to see a path without every card coming up aces.

Wisconsin: Yet another potential loss for Republicans. After being left for dead by the party establishment (and its money), Ron Johnson beat former Sen. Russ Feingold by nearly 4 points in 2016. But a lot has changed in six years. Back in 2016, in the heat of the campaign, Johnson told a home state paper that “he would not run for a potential third term” in 2022. Now, he won’t say whether he’s planning to run again. Currently, he’s chair of the senate’s chief oversight committee but he would have been forced to give up his gavel because of term limits even if Republicans had held onto the chamber. He hasn’t wasted his time, though. At his direction, the committee has investigated Hunter Biden, Hillary Clinton, and allegations of election fraud in 2020.

Arizona: Democrat Mark Kelly isn’t getting much time off. After winning the special election in November to unseat Martha McSally by slightly more than 2 points, he’s up again in 2022. Republican could have an edge because midterms are lower turnout races and they tend to favor the party out of the White House. Bill Clinton lost 10 Senate seats in 1994; Barack Obama lost 6 in 2010. But George W. Bush and Donald Trump both picked up two Senate seats in their first midterms. Biden carried the state by .3 percent. If a well-known candidate like the term-limited Gov. Doug Ducey decides to run, this could flip to Republicans. Then again, Ducey has had some of the lowest approval ratings of any governor in the country and attacks from Donald Trump almost certainly haven’t helped him—although ignoring the president’s phone call while certifying his state’s election results for Biden was a particularly strong move.

Nevada: Democrat Catherine Cortez Masto is up for reelection after beating GOP Rep. Joe Heck by just more than 2 points in 2016. It’s unclear who Republicans can field this time or how much energy they are willing to put into the seat given how many times they’ve lost it. Nevada is a weird state with one population center that heavily favors Democrats and then every other county is varying shades of red. Even so, I like how Larry Sabato over at UVA put it in his initial read on this race, “In some ways, Nevada is to Republicans what Florida is to Democrats: an elusive and frustrating target.” 

New Hampshire: Democrat Maggie Hassan unseated GOP Sen. Kelly Ayotte in a nail-biter in 2016 that came down to 1,017 votes. The popular Republican governor, Chris Sununu, has won reelection twice and may be looking for a fresh challenge. If he runs, this will be a top-tier race for both parties.

The Sweep: Redistricting Wars Begin

Plus, a few notes on the Georgia Senate elections.

In closing the first year of this newsletter, I want to thank every single one of you for reading it, for your emails, and for your comments on the website. I write this with each of you in mind, thinking about what new nerdy corner of the campaign world I can shine some light on that you will find interesting. This newsletter has brought me a lot of joy and that is because of you.

I’ll be taking next week off—I’ve got a pile of books that I’m dying to read—but after that, we will dive right into the 2022 Senate map with our freshly minted results from Georgia to show us the way.  

Campaign Quick Hits

Special Turnout for a Special Election: More than 1.3 million ballots are already in for the January 5 runoff—an unprecedentedly high number for a special election. Remarkably, more than 36,000 of those are from Georgians who didn’t vote in November. It’s a little hard for me to wrap my head around the voter who didn’t bother to vote for president but has been persuaded to vote for control of the Senate. No doubt some of them were born in November and December 2002. Maybe some thought Georgia was too deep a red to bother in November but now think their vote actually matters. Maybe they were ill or got distracted on Election Day. Or maybe the campaigns turnout operations—provided with nearly unlimited money (and remember that neither presidential campaign truly put the pedal to the metal in Georgia this cycle)—are truly finding ways to motivate very low propensity voters whom they didn’t have the time or resources to reach just a few months ago. But overall, those 1.3 million voters have left some clues: 25 percent fewer mail-in ballots have been received than by this point in the November election, and there’s been close to a 10 percent increase in in-person voting. Perhaps fears over the pandemic are subsiding, but more likely that looks like pretty good news for Republicans.

Missing in Action: Notice something missing in most of the news coverage in Georgia? Polls! As Politico’s Steve Shepard reported, “Since the general election, FiveThirtyEight has tracked 12 polls of both contests, though most of those polls were conducted by firms with mixed or limited track records: Only two of those surveys were conducted by pollsters the site gives better than a ‘B-’ rating.” Special elections are hard to poll in the best conditions—turnout is often (if not always) significantly smaller than a general or even a midterm election, making it that much harder to determine who is a likely voter. Add to the mix that many people take holidays between Christmas and New Year’s Day and it’s even harder to ensure that your respondents are representative of the January 5 electorate. 

Hey Big Spender: We’re up to $450 million in ad spending in Georgia. Yep, that’s a lot. In fact, it’s maybe even near the maximum. As Nick Corasaniti at the New York Times determined, in Georgia right now, “In the 5 p.m. to 6 p.m. hour, home to local news broadcasts and a common target for political campaigns, more than 60 percent of all ads were political.” The returns are diminishing, for sure, but with unlimited budgets, there’s not much of an incentive for the campaigns not to gobble up all that air time. 

“The stakes are so high and the margins are so tight that even a really inefficient strategy makes sense for people who are trying to control the United States Senate,” Ken Goldstein, a professor of politics at the University of San Francisco, told the Times.

Incumbency Waning: In 2000, according to a group called FairVote, incumbent congressional candidates could count on getting an 8-point advantage just from being an incumbent. They had higher name ID, better access to donors, the ability to send “free” mail to constituents, credit for earmarks for local taxpayer-funded projects, and, of course, an entire office of staff to help constituents with their problems. Fast forward to 2020, and that advantage has all but disappeared. An incumbent congressional candidate this past November enjoyed a measly 1.4-point incumbency advantage. Candidates matter less, party identification matters more. 

Flanking from the Left: As mainstream media continues to focus on the probability of a compromise caucus emerging during a Biden administration without unified congressional control, not everyone is singing from the same hymnal. The most progressive campaign groups—Justice Democrats, Our Revolution, and the Sunrise Movement—didn’t flip a single Republican-held seat. But during primaries they did unseat incumbent Democrats who were seen as insufficiently liberal. And that’s what they plan to keep doing in 2022. As proof of concept, they point to the Tea Party. Strategically, I don’t see why they aren’t right: Threatening members from the far left or right is both more efficient—primaries are cheaper to win and have much lower turnout—and more effective for a minority to build a power base within a party as long as they view continued gridlock as better than compromise. 

“It wasn’t that the Tea Party won a ton of swing races,” Max Berger, the former director of progressive outreach for Warren’s presidential campaign, told Politico’s Holly Otterbein. “That’s not what made them powerful. They succeeded because they won a lot of Republican districts, and I don’t see why our project would be significantly different.”

Shifting Voter Trends: The bases of both parties are shifting, leaving both sides a little shaky on where they stand heading into 2022. Comparing 2016 to 2020, “Democrats increased their margins by 4.8 percentage points in college towns, 5.9 points in exurban communities and more than two points in suburban areas. But Trump performed better in big cities by two points, in Hispanic centers by 3.5 points and in working class-dominant parts of the country by nearly a point.” But how much of that was Trump-specific voter behavior? Will Democrats maintain that strong of a grip on the suburbs without him on the ballot? Will Republicans keep making gains with the white working class without him? 

“We won back the House and the White House in the suburbs, but my sense is we are leasing that support—we don’t own it,” Robby Mook, the manager of Hillary Clinton’s 2016 campaign who led the House Majority PAC this cycle, told Michael Scerer at the Washington Post. “With Trump gone, that lease is up for renewal. If we don’t hold on to our gains in the suburbs or replace it by winning back working-class White voters, we will have a problem.”

State Legislatures Take the Wheel

For those who follow statehouse races, the 2020 election was remarkable--because nothing much changed. 

“It looks like 2020 will see the least party control changes on Election Day since at least 1944 when only four chambers changed hands. In the 1926 and 1928 elections, only one chamber changed hands,” wrote Tim Storey and Wendy Underhill at the National Conference of State Legislatures. In fact, the only two chambers to flip were the New Hampshire Senate and House, which Republicans reclaimed after Democrats flipped them in 2018. 

Along with their wins in New Hampshire, Republicans also picked up the Montana governorship, which means they gained two new trifectas—states in which a single party controls the governorship and both legislative chambers. 

Republicans now have unified governments in 23 states while Democrats control governorships and state legislatures in 15 states. Eleven states continue to have a divided government—Democratic governors with Republican legislatures in eight states, and Republican governors with Democratic legislatures in three. And then there’s Alaska.*

Now that we know where the ball lies, what does it all mean?

First, of course, state legislatures do have enormous power over our lives. The abortion wars are bound to continue in which unified GOP states pass increasingly harsh and/or creative restrictions on abortion which are then litigated for years. Pro-life proponents were disappointed this past term when Chief Justice Roberts upheld Roe and Casey and struck down a Louisiana law that required abortion providers to have admitting privileges at nearby hospitals. With Justice Amy Coney Barrett shifting the balance of the court, however, state legislatures may head into the breach once more to see whether they might find five votes without Roberts.

Second, that’s not why state legislatures are the focus of The Sweep this week. It’s redistricting! As Article I of the U.S. Constitution so unpoetically tells us, “The actual Enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct.” And so here we are in 2020 about to get the results of our decennial census, which will lead to two major fights.

The first fight is over apportionment. That is the question of how many seats each state gets out of the 435 House seats. And it is also worth noting that this apportionment also affects a state’s number of seats in the Electoral College. Nobody seemed to pay much attention to this fight because, well, I don’t really know why. After the 2010 census, for example, Texas picked up four seats, Florida gained two, and Georgia, Nevada, South Carolina, Arizona, Utah, and Washington each got one. On the flip side—this is a zero sum game, after all—Illinois, Iowa, Louisiana, Massachusetts, Michigan, Missouri, New Jersey, and Pennsylvania each lost one seat while New York and Ohio both lost two. Losing seats is a big deal. Poor Iowa lost 20 percent of its representation in the House, going from five seats to four. Ouch! 

And this is why apportionment is getting renewed attention this year. President Trump issued a memorandum, “Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census.” In it, he argued that “states adopting policies that encourage illegal aliens to enter this country and that hobble Federal efforts to enforce the immigration laws passed by the Congress should not be rewarded with greater representation in the House of Representatives.” Without naming California, he claimed that “including these illegal aliens in the population of the State for the purpose of apportionment could result in the allocation of two or three more congressional seats than would otherwise be allocated.” 

The Supreme Court heard the case earlier this month and ruled that the states would have to wait until they’ve actually been docked seats before suing. Legally, the case is interesting because everyone agrees that the federal government does not count people in the country on tourist visas in the census. But there isn’t agreement on whether the law requires (or simply permits) the government to count someone the day after that visa expires. Politically, it’s not clear whether the secretary of commerce will be able to get the census report to President Trump with enough time before he leaves office or what types of aliens the report will be able to identify. (The Commerce Department has to match up individual census questionnaire respondents with individual records of aliens based on their current detention in an ICE facility, for example, so we know the report cannot and will not include anyone unlawfully present in the country who has never been arrested or given removal orders.) 

The second fight—once the apportionment has been completed and the litigation over apportionment resolved—will be over redistricting. And that is why unified party control after 2020 is so important, and why the statehouse races in 2022 may also be important. Except in Montana, Wyoming, the Dakotas, Delaware, Vermont, and Alaska. Can you guess why? They don’t do redistricting because they only have one seat. Womp womp. (Note: Maine has only two, which you’d think would still make it a pretty easy job, but Maine also apportions their Electoral College votes by congressional district—not winner take all like 48 other states—so those lines matter to everyone up and down the ballot.)

Currently, out of the 43 states that may draw new lines every 10 years, more than half involve some sort of redistricting commission at some point in their process. Iowa isn’t one of those states, but it is extra fun because Iowans draw their maps without “any political or election data including the addresses of incumbents.” Some of those states use commissions fully independent of the state legislators, and others, like the one just passed in Virginia in November, are a hybrid of citizens and legislators. 

The Supreme Court upheld these commissions in 2015, and in 2019, the justices also held that the courts would not get involved in refereeing partisan gerrymandering either. But that’s not where the legal mess stops. There’s complicated case law around “one person, one vote,” cracking and packing (i.e., intentionally drawing lines to dilute a voting block across districts or concentrate a voting bloc within a single district), and racial gerrymandering. No doubt the subject of a future Advisory Opinions episode. 

The point is that these redistricting lawsuits languish for years and across cycles, and the state legislatures are usually stuck in the middle of it—especially in states that lose a seat and incumbent congressional representatives are forced to run against each other or leave office. Of course, that only applies to the shrinking number of state legislatures that do the work themselves. 

This isn’t the first time state legislatures have wanted to get rid of their own political power, though. Before 1913, they were in charge of picking their U.S. senators too.

*Alaska was sort of technically a Republican trifecta state heading into 2020, but several members of the Republican legislature broke off and caucused with the Democrats, creating a ‘coalition of the willing’ of sorts for our northern brethren. Because of that, it was counted as one of the 12 divided government states. But as of now, the results of the 2020 election are still too close to call. When it is called, that will mean there are either 24 Republican trifecta states or 12 divided government states.

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