The Sweep: Georgia Heats Up

And the Kraken runs out of ocean.

Fact of the day: “Of the 265 counties most dominated by blue-collar workers—areas where at least 40 percent of employed adults have jobs in construction, the service industry or other nonprofessional fields—Mr. Biden won just 15, according to data from researchers at the Economic Innovation Group, a bipartisan policy research group.” Lisa Lerer, New York Times.

Quick Georgia Hits

Georgia January Election by the Numbers:
Total registered voters for January 5th: 7,233,584 
Early voting begins: December 14

Georgia’s November Election by the Numbers:
Total votes cast: 4,998,482
Mail-in ballots: 1,316,943 
Joe Biden’s margin of victory: 12,670
Number of people who voted for president but not for U.S. Senate: 46,307 (David Perdue), 84,121 (Kelly Loeffler)
Perdue’s margin over Jon Ossoff: 88,098

Voter Registration Deadline: Yesterday was the deadline to register to vote in Georgia’s special elections. In our highest turnout elections, 9 in 10 registered voters turn out to vote. This is why there is such an emphasis on registering voters in odd numbered years when there’s not a lot of other “voter touches” that can be effective. But with such a condensed timeline in a special election, turning out voters is probably a better use of resources at this point. Per David Catanese at McClatchy: “Georgia Secretary of State Brad Raffensperger has launched an investigation into a collection of groups, accusing the New Georgia Project launched by Stacey Abrams of sending registration forms to people in New York and citing evidence of other operations trying to convince college students to temporarily change their residency to Georgia.”

Turnout Tea Leaves: Here’s a piece of data to help us consider how many people may turn out on January 5.* First, just under a million absentee ballots have been requested in Georgia—or about 70 percent of the number of requests received the same number of days before the general election. If that ratio held across all types of voting, it would result in 3.5 million votes—although my instincts would tell me that absentee ballots will have a higher dropoff for a special election than in-person voting and that requests will pick up this month over last month given the January 1 deadline. It’s also worth noting that in 2018, 3.9 million Georgians voted in the November gubernatorial race between Brian Kemp and Stacey Abrams. Kemp won that race by 55,000 votes, giving us a rough idea of what turnout could look like in a hotly contested, high-dollar, non-presidential race in the state. 

If I Were a Rich Man: On the one hand, I included a graphic last week that more or less showed that money—over a certain amount, at least—didn’t seem to correlate with wins in the November Senate races. On the other hand, Republicans won every race in which they spent more. Taking a look at Georgia, “GOP donors gave $95 million to their party’s Senate super-PAC and party committee between Election Day and Nov. 23, more than four times as much as the $18 million Democrats gave similar groups over the same period,” according to Bloomberg. But how they are spending their money is different too. The Warnock and Ossoff campaigns have spent just over $110 million on advertising; the Loeffler and Perdue campaigns have spent noticeably less—only $78 million so far.

Election Fraud was the Case that They Gave Me: The Trump campaign and Trump supporters have come up empty in Georgia post-election litigation. In the five cases brought by Trump or his supporters, none has come close to changing the outcome of the election. The first, brought by the Trump campaign, sought to stop the counting of absentee ballots in one county. The judge dismissed the case, finding that the campaign had not shown any evidence that the ballots in question were invalid. Next, there was a case brought by noted First Amendment attorney James Bopp who voluntarily dismissed his own case. Third, Trump-supporting attorney Lin Wood brought a case alleging that all absentee ballots in the state were unlawfully counted. That case was dismissed by the federal district court and again by the 11th Circuit Court of Appeals with a lovely opinion written by Judge Bill Pryor, who was on Trump’s SCOTUS short list, and joined by Judge Barbara Lagoa, another name on that list. After that is the so-called “Kraken” case brought by Sidney Powell, alleging “ballot-stuffing, vote-flipping and voting machine tampering, among several other theories,” which was dismissed yesterday. And finally, another case was brought by the Trump campaign late last week. Yesterday, that case was tossed out because the attorneys forgot to pay the filing fee. Regardless, as you can read below, today is the safe harbor deadline, so time is up for meaningful legal challenges now.

Miss the president’s campaign rallies? Not to worry! Andrew has our recap of this weekend’s rally on Georgia’s southern border:

Trump’s Message: Stop the Steal, But Get Out the Vote

In recent weeks, we’ve talked a lot about how Trump’s ongoing “Stop the Steal” rhetoric is complicating the campaign pitch Georgia’s GOP senators want to make: that sending them back to the Senate is the only way to ensure President Biden doesn’t come into power with both houses of Congress under his party’s control.

President Trump didn’t resolve this tension when he went down to Valdosta Saturday evening to rally in support of Loeffler and Perdue. But despite all the usual stream-of-consciousness rhetoric that marks a Trump rally (his favorite cable shows, the war on Christmas) and the by-now standard recitation of unprovable or disproven claims of mass voter fraud, the final product was one that buoyed the GOP campaigns.

“The Trump rally was a huge help,” one Republican operative with knowledge of the campaigns’ thinking told The Dispatch. “I can pull 30 quotes from Trump’s speech about how important it is that everyone go out and vote … Everyone in the Perdue/Loeffler orbit is happy with how that went.”

As president, Trump has made a regular habit of rallying in support of down-ballot candidates around the country. But at those rallies, his typical style is simply to riff on whatever’s on his mind for the duration of his time, sometimes only pulling the candidate up for a pep talk as an afterthought.

On Saturday, however, Trump spent roughly equal time decrying phantasms of election theft and encouraging his audience to back Perdue and Loeffler to the hilt.

“There’s never been a case where a state has had this prominence in Senate races, because they’re never together,” Trump said. “At stake in this election is control of the US Senate, and that really means control of this country. The voters of Georgia will determine which party runs every committee, writes every piece of legislation, controls every single taxpayer dollar.”

It was a clear rebuke of operatives like prominent Georgia lawyer Lin Wood, who has gained notoriety in recent days for denouncing Perdue and Loeffler as insufficiently loyal to Trump and called on Georgians to withhold their votes from the pair until they back extraordinary measures to throw out Biden’s electoral win.

Although the arguments made by Wood and others like him are built on an edifice of falsehoods about what happened in the election, they draw their strength from their internal coherence: If the election was brazenly stolen from Trump and the will of the people overturned, then of course all true patriots should be straining every nerve to right that wrong, and the lip service Perdue and Loeffler have paid to the president’s “stop the steal” campaign is contemptibly cowardly and lazy. But that theoretical argument falls apart in the face of Trump, here in the flesh, assuring his fans he very much does want them to turn out for the incumbents in a few weeks. Accompanied by a rash of democracy-undermining lies or not, it’s a welcome message for the incumbents.

Perdue and Loeffler’s relief also suggests their theory of the race differs from that of their opponents, Jon Ossoff and Raphael Warnock, in one crucial respect. The Democratic campaigns have put little stock in the Republicans losing Trump superfans. But they have hoped that Perdue and Loeffler’s tiptoeing around Trump’s “stop the steal” narrative will hurt them among moderate Republicans turned off by Trump’s antics—the sort of voters who helped flip the state for Biden even as they gave the Republican incumbents a slight edge in the general election. Those voters aren’t likely to be won over by Sen. Perdue coming on stage on the heels of the president’s repeated false claims that he won the state to tell Trump he was going to “make sure you get a fair square deal in the state of Georgia.”

Yet faced with the choice of defending against weakness on the right flank or weakness in the center, the incumbents have plainly opted to shore up their base support.

“This was about the best we could have hoped for,” the operative said, “knowing [Trump] was going to do his thing.” 

Safe Harbor in the Time of Storm

Ok, let’s leave Georgia. Today is the “safe-harbor” date for states to appoint presidential electors. The 12th Amendment only says that presidential electors “shall meet in their respective states and vote by ballot for President and Vice-President” and send their votes to the President of the Senate. 

But after the 1876 presidential election between Rutherford B. Hayes and Samuel Tilden, four states—Florida, Oregon, Louisiana, and South Carolina—sent in votes from two different sets of electors. What a mess! 

A decade later, in 1887, Congress passed the Electoral Count Act. It included what is now codified as 3 U.S.C. § 5 and says that the slate decision “made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution” (emphasis added). Congress set the date for the elector meeting “on the first Monday after the second Wednesday in December” in 3 U.S.C. § 7. This year, that’s December 14. 

And that makes today, six days before that … Safe Harbor Day! 

So what does this actually mean? If Congress receives two elector slates—say, one from the Georgia governor and one from the Georgia state legislature—then Congress must count the slate that met the safe harbor deadline. 

But what if both of them do or neither of them do? Well, then it gets a little muddy. If the House and Senate agree on which one to count, that’s that. If they can’t agree, then there’s a line that says the governor is the tiebreaker, so whichever one was certified by the governor of the state is the one that counts. Maybe. Or maybe the governor tie breaker only applies if two slates are sent in after the safe harbor date. That would mean that if two elector slates are both sent in before the safe harbor deadline and the House and Senate can’t agree on which one to count, then neither of those slates count toward 270 electoral votes required. But do we subtract the number of electors awarded to that state from only the 270 numerator? Or also the 538 denominator? 

It’s hard to say because—despite Congress taking a decade to pass a law for the express purpose of resolving an election contest in which emotions are high and uncertainty is everywhere—this section is impenetrable, with 57 commas and 16 uses of “such” in 809 words.

The closest we have come to litigating these questions was in 2000, when Florida asked the court to expedite its decision expressly because it wanted to meet the safe harbor deadline. And it did. The Supreme Court issued its decision in Bush v. Gore on December 12—the safe harbor deadline that year.

All of this is to say: All states will have sent in a single slate of electors by the end of today and that means the Trump campaign is—by and large—out of time for their remaining legal claims and state legislative shenanigans, because any additional slate would come after the safe harbor deadline. Therefore, per statute, Congress is directed to count the safe harbor slate.

Correction, December 8, 2020: An earlier version of this newsletter misstated the date of Georgia's Senate runoffs. They are January 5, not November 5.