Advisory Opinions - Pivot Counties

Episode Date: November 2, 2020

It’s Election Day eve and our podcast hosts have their presidential race forecasting models at the ready. After a helpful breakdown on pivot counties in swing states, David and Sarah give us some punditry on the 15 Senate races they’re watching closely this cycle. “Generally speaking, the Senate and presidential numbers are getting closer together over the last few cycles, not farther apart,” Sarah says on today’s podcast. Check out this prediction heavy episode of Advisory Opinions, in which our hosts give us a state of play on the presidential race and offer their thoughts on a controversial election lawsuit in the Lone Star state. Show Notes: -David’s latest French Press, “I’m Here To Remind You That Trump Can Still Win” by Nate Silver in FiveThirtyEight, FiveThirtyEight’s presidential polling average in Pennsylvania, Texas election lawsuit. Learn more about your ad choices. Visit megaphone.fm/adchoices

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we're always by your side. Just a few of the reasons why we are Canada's number one rated online broker by Money Sense. Get started today at Questrade.com. You ready? I was born ready. Welcome to a dramatic, scintillating, exciting, illuminating election eve. humiliating exciting illuminating election eve oh wait let me add another descriptor possibly humiliating election eve advisory opinions we have got an action-packed pod today this is david french with sarah isger and we are part of the dispatchpatch, thedispatch.com. Go check us out. We are going to cover the state of play in the election. Sarah has a, what is it, Sarah? An 83,000 word sweep newsletter coming out later? That's right. Yes, approximately 83,000 words. Excellent.

As long as the two towers by Tolkien, except it's about the two candidates, Trump and Biden. No, it's a comprehensive look at swing counties, among other things, in the election, what you need to be looking at. So we're going to be talking about the state of play in the election. We're going to talk about a Texas lawsuit that has got both of us fired up about voting rights. We're also going to offer our predictions so that that's the possibly humiliating part. See, I'm already out there, Sarah. I've even put a map.

I put my projected map into my French press newsletter, but you have remained silent. That's because my i there are 3141 counties in this country 206 of them went for barack obama in 2008 and 2012 and went for trump in 2016 and i have spent the last 72 hours going through them. What that does for anyone who is overstudied for an exam is that you can't possibly predict what will happen because you're now so in your own head about every single county and vote.

And then of course I had to go back and look at 2018 and see what they did during the midterms. So I'm like swimming in like almost individual voter level data right now. That's a good excuse. It is a good excuse. Thank you. Thank you.

It is a good excuse, but request to avoid prediction denied. Motion denied. We're going to have to have the Sarah Isger prediction. I'm more about paths. I look at paths. All I'm hearing when you talk about this is you might be the most qualified person that I've talked to in the election season to offer a prediction. So that's what, you know, what's the, who is it? The OJs got to give the people what they want. All right.

All right. So let's, let's get rolling then. All right. All right. So let's get rolling then. So the state of play right now is that we have a total turnout as of the morning before the election already of early vote of 95 million, 365,000 people. An increase of about, I mean, 16 million or so from our last podcast. Texas is at a stunning 108% of total 2016 turnout, which goes to your factor. You've talked about, Sarah, that Texas is a swing state, so now people are voting. Florida is at 93.7% of 2016 turnout.

Georgia, 93.9. North Carolina, 95.4. So these are all key states. Would you call them more, these are your early night states where if more than one of those goes against Trump, you can kind of say, well, all that projection and all that worry of this is the weeks-long election will largely dissipate?

In fact, I would say that almost any state going against Trump means the night's over because Pennsylvania, Michigan, and Wisconsin, the states where if they went against Trump, I would say Trump still has a path, have those outstanding mail-in ballots. And so Biden could catch up there in the end, et cetera. But also, if Trump is losing those states without the mail-in ballots, the night's probably over if Pennsylvania goes, less so Michigan and Wisconsin. is the day before the election, the 538 polling average stands at 8.4, Biden 51.9, Trump 43.5.

And so therefore, Nate Silver did a really, just an excellent piece yesterday that I would encourage folks to read that talked about how Trump could win. It's entitled, I'm here to remind you that Trump can still win. And it has this really helpful chart on how the national popular vote does or does not provide a cushion for Joe Biden and how that cushion dissipates pretty dramatically and how even if the national popular vote is Biden plus three to plus four, the Trump possibility of winning starts to shoot up into the point where if the national popular vote is Biden plus one to plus two, Silver estimates that Trump then shoots up to a 75% chance of winning. But it's a really interesting piece about why we look at

probabilities instead of sort of making the kind of outright predictions that we're going to be making later in the podcast. But it's fascinating. I strongly recommend it, but not as much as I recommend the sweep newsletter today. Sarah, can you give us a preview? Yes. So what I did was I looked at all those pivot counties is what they're called, those 08-12 Obama counties that went for Trump. Some of them are really interesting and you're going to want to pay attention

to them on election night. And I've pulled those out. But then in some of these states, the pivot counties might be very small or they might not tell you what you need to, like in Michigan, for instance, about where Biden and Trump need to be pulling the most votes.

So let's see. David, let me pick out one per state to highlight. That work? Okay, perfect. Okay, so Florida. Remember, Florida's polls will close at 7 p.m. Eastern for most of the state, 8 p.m. Eastern on the panhandle.

The polling average is about two points Biden up. And Florida had four counties that were pivot counties. Let's look at Monroe County. That's in the Florida Keys. It actually covers a whole bunch of the Everglades at the bottom of the state, which as far as I can tell, no one lives in. But it covers the Keys. And there's about 35,000 people who live down there. And Obama won in eight very handily. And what you'll see repeated in all of these pivot counties

is that Obama wins by a lot in 2008, by less, but still handily in 2012. in 2012, and then all of a sudden, Trump just wipes it out in 2016. So Trump won Monroe County by seven points. That's a wild swing from Obama, 08, and 12. But then you go to 2018, and this gets really interesting. If you remember, Ron DeSantis and Rick Scott, both the Republicans, governor and senator, won in 2018, despite the polls saying that they wouldn't. Monroe County voted for Democrat Bill Nelson by 16 votes, not percent, votes. So basically, it was a tie on that, which is about right. That's where the rest of the state was. That was a really, really close race. And they went for Republican Ron DeSantis by 1,300 votes.

So not only could Monroe County be very close, but also kind of a bellwether. I would say at this point, that is the best county to watch on election night in Florida tomorrow night. Fascinating. Can I make a general observation about Florida? Yeah. So I've been watching sort of these early vote tallies come in on Florida. And I look,

I know all of the all of the cautions about looking at these things. But now we have about nine nine million Florida early votes in. And the margin between Democrats and Republicans is looking, how shall we say, very Florida-like in that it's very, very close. And all of the predictions of the gaps between in-person balloting and mail balloting have proven themselves out. For example, in mail ballots returned, Democrats have a 14-point edge. In in-person votes, Republicans have about a 13-point edge, which leaves the Democrats right now with a 1.2-point edge with 21% of the no-party affiliation. 21% of it is no-party affiliation. Part of me just feels like we're going to see this rerun of Florida that we've seen so recently where there's just a good enough, strong enough,

stable enough Republican machine that it's going Trump and that some of the other red states might actually be more likely to flip. But I don't know. That's just more of an instinct of mine. I would love to sort of get your thoughts on that state of play. I think we have to wait for our prediction segment, David. All right. Okay. Okay.

All right. Pennsylvania. Pennsylvania polls close at 8 p.m., but don't forget, they didn't start counting their absentee ballots until tomorrow. Sorry, there was intense issues in that sentence, but you get my point. That's a problem potentially. Right now, 538 polling average shows Biden up five points, but he was leading by over seven points just three weeks ago. So there's three pivot counties in Pennsylvania. I'm going to cheat and actually just do two of them quickly. Erie County is like fracking. Erie County equals fracking.

It's in the northwest corner of the state. It's not that big, but Obama won it by 20 points in 2008, 16 points by 2012, and then Trump won it in 2016. So then you look at 2018, and Democrat incumbent, mind you, Bob Casey won the county by 18 points. That's not that interesting. He was an incumbent, like I said, but he won it five points more than his state total.

So that's interesting. So they like Bob Casey. So that one's more just looking at whether, you know, how Biden's doing, whether the fracking comments hurt him, that will be the County to watch for that. They've been running a ton of ads in Pennsylvania about fracking. If they made a difference, that's where you're going to find it. But North Hampton County is like the truest swing County in the country. Uh, until 2016,

country. Until 2016, Northampton had voted for a Democrat in presidential elections forever. Forever. And they had voted for Republican and Democratic senators. They voted for Rick Santorum, Pat Toomey, Bob Casey. As far back as I could find, Northampton's outcome has predicted the state of Pennsylvania always interesting and in 2018 sorry and they had elected a Republican in the 7th congressional district which covers Northampton for decades and in 2018 they elected a Democrat by six points that is going to factor heavily into my prediction for this entire presidential race, by the way, David, is Northampton. You know, I love this. This is one thing that I actually, that is just as sort of a political junkie I love about Election Day or, you know, Election Days, is that for a while you can sort of like sound like more of an expert than you are.

sound like more of an expert than you are if if for example um listeners you know you've just listened to what sarah says you can now go to all your friends and you can say look here's what i'm going to be looking at i'm going to be looking at northampton county pennsylvania and then immediately sort of like uh those old ef hutton commercials where everything goes quiet and people turn and look at you that's what will happen because you'll immediately distinguish yourself as someone who has special knowledge and everyone will fall silent. Northampton County? Really? More so than Macomb County, Michigan? Yes, more so. More so. So North Carolina, More so. All right.

North Carolina. Biden is up in North Carolina in the polling averages, but it's close. They will have started counting their mail ballots ahead of time. The polls close at 730 Eastern. So we're going to know quite a bit about North Carolina and what North Carolina says generally about the polling in the country and whether Biden has picked up a Trump state. So North Carolina, very important. Union County, worth noting, that's a heavy suburban county for Republicans outside of Charlotte. Trump won Union County by 36.4 points in 2016, but that had dropped off 16 points in the 2019 special congressional election. Now, of course, special congressional elections are special for a reason. But basically, if you

see Trump's number dip below 20 point margin in Union County, rut row, there's almost no way for him to make it up in the rest of the state. Fun fact also, Lenoir County basically has no people living in it, David. I mean, they do. It's tiny. It's a tiny, tiny county there. Um, like you describe it as tiny, but mighty, tiny, but mighty. It is both tiny in population, but also, uh, its area is also quite small. It has one of the top 10 records in the country for predicting its state's final

results. On average, it has only deviated by 1.1% from its state's final results since 1992. So Trump won this by 3.6 points back in 2016. So just for funsies, you could keep an eye on Lenoir County. Fascinating. Okay, I like that. I'm going to look at the tiny but mighty county of Lenoir. So I'm detecting a pattern here. So like our southern, so far, our two big southern potentially swing states or actual swing states, Florida, North Carolina, have started counting ballots early.

So these are the ones where, these are the states that are going to be really giving us a good sense early in the night whether or not we're looking at something approximating, you know, like a Clinton-Dole or a Clinton-Bush race versus something approximating 2016 or 2000. Yep. No, that's exactly right. I mean, basically, ifida or north carolina look uh frankly if they look good for trump it means we should throw all the state polling out

now yes it's within the margin of error but even so it's on the outside of that margin of error uh so that'll be very important if they go for Biden, the race is over. Yeah. So let's move to Wisconsin, a state that actually Trump can lose and that won't start counting its mail-in ballots. But it would be interesting if Biden wins this outright on election night, and that's what I'll be looking for. Check out Kenosha County.

Trump won Kenosha by 238 votes for good reason. Before Trump, Richard Nixon was the last Republican president that the county supported, which also is kind of funny. Like, really? Richard Nixon was the one you guys picked? Okay. Well, 72, everybody picked Nixon, basically. That's true. That's true. But it's just such a fun sentence. Like, come on, Kenosha. And basically, you want to see whether Biden is blowing it out in Kenosha, because I think he actually probably will compared to previous cycles. And if so, he maybe doesn't even need the mail-in ballots to close that gap. There's some other fun counties in there, but I'll leave that for the sweep.

All right, Michigan, another one that isn't going to count its mail-in ballots. Polls close at 8 p.m. Eastern. And the polling average right now in Michigan is that Biden's up nine points. That is well outside the margin of error. So instead of looking at those pivot counties, and I include one or two of them, but really you want to look at the turnout counties, the ones where actually we already know who's going to win the county, but where Hillary Clinton just massively underperformed. So take Wayne County.

It's Detroit. Not a swing county, obviously. In 2016, Hillary won 66% of Wayne County. Okay. A net loss of 76,000 votes from Obama from 2012. So Obama won it with 73%. And Trump won Michigan by fewer than 11,000 votes. So basically, if the Biden team can get over 70%

in Wayne County and just make up some of Hillary Clinton's abysmal Wayne County performance, they take the state. And if anyone's maps have Michigan read this time around, I think they're out of their minds. So there, there's my Michigan prediction. A little early on the Michigan prediction, but Michigan's the one where like, no, and we won't need the mail-in ballots. You look at this county data and how Trump won it last time. Nope, nope, nope, nope, nope, nope, nope. Obama, interestingly, was in Flint, Michigan. That's Genesee County just yesterday, day before,

over the weekend. Obama won 64% to Romney's 35%. Big, big gap, 30-point gap for Genesee County in 2012. Four years later, Hillary Clinton won with 52%. She had lost 26,000 voters. That's why Obama was there for sure. There is no way that the same thing happens because frankly, when I'm looking at these county numbers in a lot of these states, what I'm seeing is an anti-Hillary vote. And that's like my big takeaway, David, from all of this work that I did is, you know, we've talked about how Trump won this election and all, you know, the non-college educated white voters and these flip over from Obama to Trump and what that meant for the Democratic Party. I'm looking at this. They didn't like Hillary Clinton. They didn't like Hillary Clinton. Yeah. They didn't go to Trump. That's the other fun part about this.

It's not that Trump picked up those 76,000 voters from Wayne County. He didn't for the most part. They just either voted third party. They didn't vote at all. They just didn't like Hillary Clinton and they were so sure she was going to win that they thought they would register their dissent one way or another. I think the story, especially when you look at 2018 factored in now, the story of 2016 is the Democrats elected a historically disliked candidate. Yeah. When you dive into, especially those Michigan and Wisconsin numbers are really interesting. The extent to which the story was Democratic voters just not coming out. I mean, the underperforming in these key Democratic areas. I mean, a lot of people have totally forgotten that Mitt Romney got more votes, for example, in Wisconsin than Donald Trump did. Exactly. forgotten that Mitt Romney got more votes, for example, in Wisconsin than Donald Trump did. He got, it was a very small number more, but he got more votes in Wisconsin than Donald Trump did. And Hillary got about 250,000 fewer votes than Barack Obama. The 2012 version of Barack Obama, which had sort of much less support than the 08 version of Barack Obama, which had, you know, sort of much less support than the 08 version

of Barack Obama. And so there was just this dramatic underperforming. And I've written there. So every now and then I, I fired off a thought, uh, probably two or three times since 2016. And that is, I'm going to be convinced then that Trumpism as opposed to Donald Trump, Trumpism, sort of the, the of the force of his political movement, is truly a viable thing when it defeats somebody not named Hillary Clinton. And it's really interesting. That's why 2018 matters.

It'd be one thing if we'd seen some of those voters still stay home or turn over and vote Republican or something like that. But the story of 2018 is, nope, they reverted right back to where they were. Now, again, as I mentioned, in some of these counties, most of the pivot counties, you were seeing Obama's numbers from 08 drop off to 12, you know, four to five points in a lot of these counties, about, you know, 19 to 20 point win in 08 to a 12, 13, 14 point win in 2012. You would then expect to, and you do see in 2018, the Democrats then win by six, seven, eight points in those counties. So yes, they are losing altitude in those counties, but Republicans are not close

yet to winning those counties. They won because folks didn't like Hillary Clinton. Right. Well, you know, and we saw a bit of this, and this has sort of influenced my thinking on the race going forward. We saw a bit of this in the Democratic primary, or maybe more than just a bit of it. We saw sort of the Bernie phenomenon that really sort of began to impact and transform democratic politics may have been pretty significantly overblown just on its own terms, that it was really less of a Bernie phenomenon and more of a, well, he's the last person standing against Hillary Clinton phenomenon. And then when he tried to repeat it in 2020, now I know he had more competitors that were on the left as well,

but that all got just swamped, just swamped by Democratic primary voters in 2020. It just turned out there wasn't that much of a Bernie revolution to begin with. Yeah, I think that's- Shall we... Yeah, go for it. No, I'm sorry. I was just going to say, shall we turn to the Senate races? Sure. So we have 15 Senate races to watch tomorrow night. That feels a little overwhelming, so I've broken them up into buckets. You know how I love my buckets.

Yes. So we have the swing state shuffle, Arizona, North Carolina, Iowa, Georgia. These are states that will also matter in the presidential. So to the extent you don't care about the Senate, the Senate numbers could be interesting because, as I've pointed out in previous sweeps, generally speaking, the Senate and presidential numbers are getting closer together over the last few cycles, not further apart. There are fewer and fewer split ticket ballots. So to the extent there's something happening in the Senate race, that will be really interesting and meaningful. You know, a lot of these are getting pretty close, David. Uh, you know, a lot of these are getting pretty close, David, Arizona, North Carolina, uh, Iowa,

the Des Moines register last poll had earned up five points. And, you know, I'm a big fan of polling averages, as you know, but the Des Moines register is sort of the gold standard. Right. Well, that, that poll caused a lot of people to freak out on the presidential side because it showed Trump up seven over Biden in Iowa, which Iowa had been considered in play. Right. In Georgia, of course, we have two races, David Perdue versus John Ossoff. And then you have the special election, which really, I'll just tell you now, David, no one should pay attention to because the only question is which Republican is getting into the runoff. The expectation is that Warnock, the senior pastor at Ebenezer Baptist Church, will win the election, but he probably won't get over 50%. Now, look, if this thing is a huge,

like, as you said, 1996 style election or something, he could get over 50% and still have Trump win the state, for instance. That would be the end of the Republican majority in the Senate, by the way. So if that happens and it's trending that way early in the evening, just this whole thing's done. Yeah. Yeah. No, I'm going to be looking so closely at Georgia and also closely at Texas. And I noticed you did not have any Texas analysis. Yes, I did. In the swing states? Oh, not in the swing states. Yeah, yeah, yeah.

Yeah, I'm not considering that a presidential swing state. Sorry, folks. Yeah, that's what I was just going to say. You didn't have a Texas analysis in the swing state section. And so your sort of view is this, this is kind of Lucy with the football here for the Democrats, that there's this enormous hope, this enormous surge in turnout, but no. No. Yeah. So let's go to those next. This is the red state shockers is what I'm putting Texas in. So all of a sudden we have Montana, Kansas, South Carolina, Alaska, and Texas all closing in these final days. And yes, some of them have polls that show them within single digits, but in most of these states, there's not a single poll that shows the Democrat actually winning. It's just that they show the Republican winning by not as much as you'd expect. Right. So Texas is such a good example. She hauled in eight times more money. MJ Hager is the Democrat. Eight times more money

in her last quarter than the one before it. It showed her closing the gap. Okay, all of that's fun and it makes for great headlines, but not a single poll has actually shown her winning. Trump won the state by nine points four years ago. Even if the bottom falls out, you're not going to see a nine point swing swing in the state. So, look, that is reason for hope for Democrats in Texas, I guess, except it is Lucy in the football. You had Beto O'Rourke with the most expensive Senate race, I believe, ever in 2018. You had Wendy Davis,

who's now running against Chip Roy in Texas 21. She spent, was it 23 million? Anyway, to then go on to lose by some insane number against Greg Abbott. So it's a really good turnout model for Democrats in Texas, and it has huge effects on down ballot races. But they still haven't taken any of the statewides. Well, and it's interesting. I mean, it's another demonstration of how candidates matter

because here you had Ted Cruz against Beto and it was very close. I mean, I remember during 2018 getting some notes from Texas friends of mine saying, we think he lost. We think Cruz lost, but some places came in better for him than they were expecting.

And at the same time, Abbott was just like never in danger. Yeah. And don't forget that, you know, every action has an equal and opposite reaction. All of this concentration on turnout for Democrats in Texas has also turned out Republicans. Yes. Yes, exactly. Exactly. That's right. That's what happened in Virginia, by the way, in 2014, 13, the 2013 race there, because remember, they're off, off whatever, where in the very waning days, it looked like Ed Gillespie was going to catch up. And then he ended up losing. And it was all this. Well, if only they had spent more TV money and like, no, the answer is, as soon as Democrats saw that Gillespie was catching up, they then put in more money.

Also, they told their voters that things were looking tight, and then more of their voters showed up. So there's nothing particularly unusual about this turnout driving turnout from the other side. But I think Texas will be another good example of that. Hey, by the way, my favorite race, Alaska, I include a link in the sweep to his ad, the bear doctor, which is running everywhere in Alaska. That's just a fun race, guys. I don't think there's any chance that the Democrat catches up, but it's been an interesting race up in Alaska that no one has paid attention to until the last few days, including me. But Trump won the state by 15 points. So there's a reason we weren't paying attention. South Carolina, man,

that's one where you're seeing it really deviate from the presidential. Lindsey Graham is running way, way behind Trump. If Graham pulls this out, it will be on Trump's coattails, I think, which is fascinating. Kansas is an open seat, so those generally are tighter. And the Democrat has massively outraised the Republican, which you see throughout these states, by the way. Even in the reddest of red states, the Democrats just spanking Republicans on fundraising. And then Montana, of course, the battle of the Steves, Steve Daines versus Steve Bullock. The blue state ones, by the way, David, are Colorado and Maine.

Yes. Now, these are states where there's a Republican incumbent running in a state that will go for Joe Biden. And can they survive? Cory Gardner, the answer is just no. That seat's gone the same way that Alabama's gone for the Democrats, that's a one-to-one. And in Maine, Susan Collins could pull it out. She could.

It's looking tight. So what are the odds? Let's do a little Senate prediction first. The more I look at the Senate, in some ways, I almost feel like there's a better chance of the Republicans keeping the Senate than there is of the Republicans keeping the White House. Do you share that view or do you think that they're just linked? And however which one goes, so goes the other. So what I see happening is that Republicans and Democrats trade Alabama and Colorado. And then so goes the Senate. So goes the White House in terms of Iowa, North Carolina, Arizona.

And then those Georgia specials, I think, could diverge just enough from the presidential that I'm going to consider them in that bucket. diverge just enough from the presidential that I'm going to consider them in that bucket. But, you know, I think otherwise people are going to hold on to most of these seats. Like, I don't think that any of the red state shockers will actually go Democrat. I think Lindsey Graham will hold on to his seat, Dan Sullivan, et cetera, with maybe the exception of steve daines but again i think i think that trump's coattails pull steve daines over the line as well so yeah yeah i mean it's really iowa north carolina and arizona man and those are just too close to call and it's interesting i think a ago, we would not have said Arizona

was too close to call. We would have said that Arizona was lost to the Republicans, that McSally was just being routed for a while by Kelly. But now it has definitely closed. There's no question about it. It's closed. What's interesting is that similar to the national Biden numbers, Kelly is leading in every poll. McSally is not leading in a single one. But, you know, that's one where the presidential will have such a huge impact on that race that the state Senate polls are just less interesting to me. I think that one, so goes the state for the president, so goes the Senate. You know, it's interesting. I was reading a number of analyses

of how polls have missed over the past few cycles. And they've missed in a, you know, that all of the emphasis on the Midwest in 2016 has demonstrated that how polls have missed in showing under-polling Republican support.

Some of the polls in the Southwest have missed in under-polling Democratic support. And so if some of these misses, if you continue to miss in the same way, then McSally's in real, real, real trouble. But, you know, again, we're in this world of projections and predictions based on all of this past performance. And as any securities lawyer will tell you, past performance is no predictor of future results. So if Biden wins the White House and they pick up Arizona, North Carolina, and Iowa, and I'm correct about the Georgia-Alabama flip. That's it. That's the Senate majority. So they do need to run the table there for those three states, but they then don't need to win Georgia. They don't need to win Maine. And they don't need

to win any of those red state seats. And they've already gotten control of the Senate. need to win any of those red state seats and they've already gotten control of the Senate. It's hard to see that not being like a very high probability considering where the polling is in Arizona, North Carolina and Iowa and where it's been all month, even setting aside that Des Moines register poll. Well, and then think if you do have that narrow of Democratic control of the Senate. I think there's two things that result from that. One is a lot of the more radical stuff like court packing, barring some sort of shocking Supreme Court result that galvanizes the democratic public in just an extraordinary way. I think things like court packing are just off the table. Joe Manchin, Kyrsten Sinema, they're not doing it. They're not going to do it. And that then leads to point

number two. Do we see some of the most powerful senators in America suddenly become Joe Manchin, Kyrsten Sinema, and some of these moderate Democrats? And I think a lot of that, it's just hard for me to see absent a blue wave that just swamps everything, that at this moment in the Senate, that at this moment doesn't seem all that predictable, it feels to me like the Senate is going to operate as a check on the most progressive impulses of the party and would probably channel them into, on the most progressive impulses of the party and would probably channel them into, okay, let's not do radical, controversial legislation.

Let's pass coronavirus relief. Let's pass, expand Obamacare a bit or whatever. That very, very narrow majority puts so much power in the hands of the moderate Democrats. Joe Manchin, the most powerful man in America. I bet West Virginia didn't see that coming. No, it did not. But yeah, that's only, you know, that's the most powerful man in the legislative branch could well end up being Joe Manchin. By the way, quick note on Alaska. So Al Gross is the Democratic nominee, but he is not a Democrat, which makes

even this Alaska race, as I said, the most fun one to dig into. I've included some links for you in the sweep. Just start digging around on Alaska. Super fun. He's an orthopedic surgeon who kills bears, isn't a Democrat, but the Democratic Party, for reasons I didn't fully dig into, sued to be able to have this like sort of cattle call primary in their state where non-Democrats can win the Democratic nomination. And he does say he will caucus with the Democrats. Let's take a moment and thank our sponsor, Gabby Insurance. When you've had the same car insurance or homeowner's insurance for years, you get kind

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they'll never sell your info. So no annoying spam or robocalls. It's totally free to check your rate and there's no obligation. Take a few minutes right now and stop overpaying on your car and home insurance. Go to Gabby.com slash advisory. That's Gabby.com slash advisory. G-A-B-I.com slash advisory. All right, are we ready to talk voting rights litigation and your beloved home state of Texas? I'm so angry.

Oh, man. I'm like the Hulk. I'm just sitting here in my clothes waiting to burst out of them. Oh, man. Okay, let me... We've talked about this a bit before, that everywhere around the country, and there was this just awesome roundup in the morning dispatch last week about all of the various election, pieces of election litigation going on across the country. And there was this just awesome roundup in the morning dispatch last week about all of the various election pieces of election litigation going on across the country.

And without fail, the Republicans were saying we should have greater restrictions on deadlines. There should be greater barriers to voting. There should be. It was a It was really a comprehensive strategy to limit the count and to maintain stricter deadlines. And I wrote a little tweet and it said, it's disturbing that virtually everywhere the concerted litigation strategy of the GOP is to make sure that fewer votes count and that that strategy goes far beyond any legitimate concern about fraud to which i got a storm of responses like fraud fraud fraud fraud no this is all about fraud well then the texas gop files a lawsuit and there's no this is not about fraud. Essentially files a lawsuit. Now, there was a state proceeding and now a federal proceeding, very similar, trying to ban and ultimately invalidate the votes resulting from curbside drive-through voting in Harris County. Now, Harris County, that's Houston, correct, Sarah?

Harris County. Now, Harris County, that's Houston, correct, Sarah? That is Houston. Although we should distinguish between curbside and drive-through voting, they are different in this case. Okay. Well, the actual statement from the complaint says, via curbside, drive-through voting. That's because they need it to be curbside voting in order to invalidate it. Aha. Oh, so this is going to be good. So, all right, Hulk. Hulk mad. Hulk mad! Hulk smash.

All right, go ahead, Sarah. Okay, so these yahoos from the Republican Party in Harris County, they're sort of well-known yahoos, but they're not fringe yahoos, unfortunately. Well-known mainstream yahoos? I don't know. But the lawyer, for instance, is the former executive director of the Harris County Republican Party. So you're not able to just say, well, any weirdo can file a complaint. Yeah, but they have been elected Republicans in the state. File this lawsuit because in June, Harris County announced that they would have drive-through

voting. This is different than curbside voting, and let's go through the differences. In curbside voting, under the statute, if a voter is physically unable to enter the polling place without personal assistance or likelihood of injuring the voter's health on the voter's request, an election officer shall deliver a ballot to the voter at the polling place entrance or curb. Here's the issues with this, David.

A, the Texas Supreme Court, that language tracks pretty close to the language over absentee balloting. And the Texas Supreme Court said likelihood of injuring the voters' health was not at play because of coronavirus. It needs to be something more specific than simply being afraid of contracting coronavirus. Let's set aside whether that's, you know, good legal analysis or not. Them's the rules. Fine. I think it's a close call. legal analysis or not, them's the rules, fine. I think it's a close call. So in order to qualify for curbside voting, A, the Supreme Court basically applies to this, their opinion.

And so it can't just be the fear of coronavirus. And you would have to sign an affidavit explaining your reasons, yada, yada. And there's like this process for the person to come to your car, et cetera. That's not what Harris County says that they're doing. They've said that instead, it's a regular polling place, but these are based in garages. There's 10 of them or large parking lots. And basically, you drive up to a little tent. And it's the exact same as if you were outside your car. You're just inside your car.

They're like handing, you know, you hand them your ID, they check your registration, they do all the same things that you would do if you were standing there, you just get to stay in your car. They're saying that is different than curbside voting. Those people are not signing affidavits, it has nothing to do with their help, and anyone can do it. This is relevant because they announced they were doing it in June, they tried it out in July for a tiny little special that happened. And this lawsuit was filed in October. Now, uh, some other things that we need to know about this lawsuit. They have twice been rejected by the Texas Supreme court. And this is the federal lawsuit. How can there be a federal lawsuit? you ask? Well, it's fun. So the theory goes that Article 1 says that basically the time, manner, and place of elections is left to the state legislatures.

And because that's in the Constitution, you have this federal cause of action if the state legislature's rules are being ignored. This is different than supplemental jurisdiction or diversity jurisdiction where the federal court is actually applying state law. This is that the federal law is the state law, if that makes sense, David. Right. So they don't, in a sense, have to defer to the state Supreme Court over this question of state law as they would have to in supplemental jurisdiction or diversity jurisdiction or something like that. In theory, they can divine the state law for themselves, which is why, despite the Texas Supreme Court twice saying, like, no, here we still are, and there's a hearing this morning in the Southern District of Texas. That being said, I would find it shocking if the Texas Supreme Court's opinions on this don't perhaps inform Judge Hayden's opinions over this.

Now, things I am angry about. I'm angry on- Yes, please, let's get the list. Yeah, I'm angry about so many things about this case. So I'm just gonna start listing them off. One, these yahoos, as one of their remedies, say that they want the 120 or so thousand ballots thrown out. Okay. A they're dumb for asking for that remedy from a legal standpoint, from a PR standpoint,

all of it. Um, uh, B just because plaintiffs ask for a thousand purebred labradoodles doesn't mean they will get them. So I'm also mad at all the people who are like, see, Texas is going to throw out 120,000 ballots. No, because that's not how remedies work. So, okay, let's say that this was actually just fraud, David.

Just all these votes were fraudulent or some number of them were fraudulent. What is the remedy? A, unless you could prove that they're all fraudulent or some number of them were fraudulent. What is the remedy? A, unless you could prove that they're all fraudulent, you're still not going to throw out all these votes, especially because in this case, there's no mens rea on the voters part. The voters, of course, thought they were completely legally voting. They gave their voter ID. They had their registration. They filled out the little ballot. They handed it back. It went through the machine in front of them, all the exact same as if they'd walked into the polling place. If this was illegal for some reason, the remedies are, A, it's outside the

margin, and so it doesn't matter. And so we don't care, and you just can't do it again. Or B, you have to redo the election. Now I'm not saying that would be a great outcome here, but you will notice that there is no C there is no, and therefore you just throw out these ballots because obviously these people, a lot of them would have just voted inside if this hadn't been an option. So there is no world in which 120,000 ballots get thrown out. Remedies are important just because the plaintiff asked for it in the complaint is irrelevant. Honestly, the fact that they're asking for it in the complaint is borderline frivolous. Okay.

Right. So I'm very angry at all of the people scaremongering online, telling these folks that their votes aren't going to count, that ballots are being tossed out. No, no, no, no, no. And part of the reason, by the way, that we know this is because in 2018, there was fraud in North Carolina. Ballots were harvested illegally by the Republican campaign for Congress. They didn't just then count those ballots. They had a whole new election in 2019, David. So there's plenty, plenty of precedent for this. Okay, wait, another thing that I'm angry about though, I'm also angry that Judge Hayden

is having a hearing on this, frankly. I don't, you know, part of the cause of all of this anxiety is that we're four days out from an election and even having a hearing when the Texas now a day a day out and the Texas Supreme Court didn't do that they decided it on the complaint and rejected it both times um I don't understand why Judge Hainan needed a hearing on this and it opened up a lot of this um running around freaking out there are people who should know better who are ginning up

the freaking out. But of course, they have a reason to do that because it turns people out to vote in Texas because it gets them angry and worked up. It's just really bad for our democracy. And lots of the people who are saying this stuff don't know. They're not lawyers. And they don't understand that this will never be the remedy. So yeah. And even by the way, if you think the drive-in voting is the same as curbside voting and therefore can't be done without an affidavit and can't be done because of fear of coronavirus, they filed this in October, despite Harris County announcing it in June and testing it in July. And they're doing this in federal court. I've never seen a better Purcell case in my life. Purcell wasn't as good of a Purcell case as this one, David.

Yeah, I mean, this is a case where if Purcell means anything, and for those who have not been following us, because I'm sure we're getting just maybe a million new listeners today because of piqued interest in the election. But for those who don't know what the Purcell principle is, it's essentially that it's a cautionary rule against federal judges altering voting rules in a time period close to the election. And you don't get much closer than this. And so, yeah, this is purcell i mean you i think you said in all was it all caps purcell on steroids or did you moderate and you were just normal case for purcell on steroids and your in your tweets about this but this is purcell on steroids now

this is purcell on gamma rays like like sarah is right now in her Hulk phase. This should be Purcell on gamma rays. Purcell should be no stronger than it is right now. But I agree with you, Sarah. I think it's a lot easier to say, everybody calm down, everybody calm down, that you're not going to have 100,000 plus votes tossed out when a judge doesn't schedule an emergency hearing. And now again, I totally agree with you. I don't see the judge throwing them out. And if by some, like, you know, some just absolutely bizarre notion floats through his head

and he tries to, then you're going to have an immediate appeal to the circuit court. And the circuit court's going to reverse that with extreme speed. But why schedule the hearing and amp up the hysteria? Because there are things that you do that amp up hysteria that no number of legal scholars or experienced legal practitioners can then tamp it down. You just can't because somebody says, but he's scheduled a hearing. And no one's going to remember that he doesn't toss out those ballots, by the way.

And that's what's frustrating. I mean, I will obviously be tweeting about it, but I did have one person on Twitter. So most of my conversations on Twitter over the weekend were not productive, but I know that's shocking, but you know what? I'm always heartened by some people who disagree and us like finding some common ground. So one attorney, um, we started out in very different places, but I thought he raised a really good point, which is he agreed, of course, that you can't throw out the 120,000 ballots. But he said, the reason that the hearing concerned him is that another unlikely but more likely outcome is that the judge could say we're segregating those ballots until after the election and Harris County is not allowed to report out their results on election night. Again, I think that's very unlikely, but that at least would be a lawful remedy. Different than throwing out the ballots would be a not lawful remedy.

So that would be bad and cause the sort of hysteria to not have Harris County, the largest voting county in the state of Texas, be able to report out their results. Now, look, I think the most likely outcome is this gets kicked, maybe even on standing. Second most likely outcome, it just gets kicked on your complaint is stupid.

But of the outcomes that are bad... What rule of the Federal Rules of Civil Procedure motion to declare complaints stupid? Yeah, I mean, this is close to some rule 11 stuff here. Also there's a typo, like in sentence number three, Texas is spelled T three, three E X A S. You didn't even read your own complaint. It's poorly written throughout, whatever. Um, you know, that is a, there is actually a version of super online speech that does type the E as a three.

Okay, well, probably not with three of them. Two threes and an E? That seemed like overkill on the E. Yeah, yeah, yeah. But in gamer world, that's called leaked speech. I think that the most likely bad outcome is that the votes are segregated. Harris County can report out whatever they want

with these votes included, but that all he's going to say is, I'm not going to rule on this one way or the other, including even on standing at this point, segregate the votes. We'll see if they're within the margin and I'll withhold my ruling until after. That would be a very bad outcome to me, but quite different than, for instance, not letting Harris County report results, and certainly not, not, not, not, not, not, not, not, not, not throwing out 120,000 ballots. Okay, so can I broaden the scope from Texas just a little bit and sort of vent my... All Texas, all the time.

All Texas, all... Okay, so I'm going to broaden my scope a bit from Texas to look at sort of the GOP arguments about voting in a more expansive way. And this is, I'm going to vent my spleen a little bit here. So there are sort of two arguments that you've seen. One is justifying this sort of parade of lawsuits. One is concern about fraud. And as we've talked about plenty before, the evidence of widespread fraud is quite thin. It's quite thin. Not that it doesn't happen, but that it's quite thin. Zero evidence for statewide level fraud that has ever been enough to change an election. And I don't just mean prosecuted fraud, which I agree is difficult.

I mean, even a theory of how you would do it. Haven't seen it. Correct. Right. The idea of sort of this comprehensive election fraud, adjusting the outcome of a state election. It's just missing. It's just missing. So there's the fraud complaint. And then the other complaint, and this is what I'm going to vent my spleen about a little bit more, is the, well, we have to have rules, okay? And if we have

to have deadlines. And so therefore, essentially, whatever deadline exists is the stricter deadline is the one the gop is going to argue for um and or that if a legislature has not acted in such a way that um many people lots of folks have urged that it act to respond to the pandemic, that the fact that the legislature hasn't acted, that's it. That's all we're going to look at. Now, there's a constitutional side to this, that there is a constitutional admonition that you count the votes or the electors are determined in a manner that the legislature may direct. But one of the interesting things about this is when you're talking about the primacy of the state legislature and GOP voter, the GOP is just constantly hammering in the primacy of the state legislature. That's not what they do with other constitutional rights, Sarah. That's not what they do with other constitutional rights. So an action of a legislature or a governing body to regulate the exercise of a constitutional right, there is not an automatic legislative process. And the outcome of the legislation is valid only to the extent, and the limits and the bounds around it are valid only to

the extent that they still preserve the constitutional right. And so if you go in, just to give you a context, if you're arguing, say, for the First Amendment or the Second Amendment, and a state says, yes, you can exercise your Second Amendment rights to self-defense, but only with a magazine no larger than holding 10 rounds. You know, with a magazine no larger than a 10-round magazine or with a gun that is not, as we define it, an assault rifle or assault weapon. Well, then people are saying, wait a minute, we've got a constitutional right. And I know you're trying to draft legislative rules to regulate it, but the constitutional right trumps. And yet the GOP theory of voting rights seems to be whatever, essentially, so long as there's not absolute evidence of invidious discrimination in your voting rights regulations, they're just fine. They're fine. And I don't know the other

constitutional rights that are quite treated like that. So I think this goes to a philosophical difference, which is some people believe that we should make it as easy as possible to vote, that we want as many people bought into our system as possible and feel an ownership in their government because that will create more acceptance of the rules of that government and that that is a good thing. And the other side is that in fact,

maybe we don't want to go back to only property owners voting, but like kind of. And it's way too easy to register to vote. It's way too easy to vote. And then we have people voting who don't even know anything about the election or about tax policy or anything else, just sort of voting on the personality of the two candidates and that that has negative consequences in the outcomes of elections, regardless of the buy-in. I think that there are arguments in favor of both of those. I think it has become popular,

however, in the Republican circles to believe in the latter and think that we just should have fewer people voting. And that part of that is making it as hard as is constitutional to vote. And that, yeah, maybe it won't be based on property ownership anymore. It'll be based on your willingness to jump through hoops and exercise your right to vote and that there is just a philosophical difference over that. And I appreciate the difference. I think I understand the difference. I just think it's a bad look. Well, and I also think it's been disingenuously advanced because if you're going to go to the American public and say, you know what, we really kind of want it to be harder to vote because, you know, this is a very important because this is a very important civic responsibility and we need you to exercise it with due diligence. And yeah, we can't put like some sort of,

I don't know, civics test on the front end of it, but maybe sort of a de facto civics test that's going to make you navigate the bureaucracy just a little bit before you can exercise. You know what that is, Sarah? That's called a losing argument. Well, what I find interesting about it is also that the parties have been shifting in recent years, and the Democratic Party, this time it looks like, will win a lot more college-educated voters, and the Republican Party, as we saw in 16,

will win a lot more non-college-educated voters, who do you think is more likely to navigate the bureaucracy and jump through the hoops to vote? Overall, taken writ large, this is not about any specific voters or that education level somehow shows that you're smart enough to navigate bureaucracy,

but this idea that Republicans think you should need to be smarter and cleverer to vote, I'll be interested to see if they believe that when all of a sudden their voters are the ones that have difficulty navigating the bureaucracy. Well, that's a very good point. But they don't even really make that argument, the argument that you're making. So what they then do is they sort of default to two things. One is fraud. Fraud is A, argument one, argument 1A, and 1B. And then there's sort of a rules are rules.

What do you mean? Like, don't we have to have, we gotta have rules. And the counter is, well, yeah, we're arguing for a different rule, not for no rules, but for different rules. But again, but I think you're right. And I think a lot of this actually just locked in during the Obama administration, a sort of conventional wisdom

that Republicans win low turnout elections, Democrats win high turnout elections, just kind of locked in. And I don't know that there's a huge amount of empirical evidence for that historically. I mean, there's a lot of evidence that Democrats do better when Obama's on the ballot. There is quite a bit of evidence. Then when Obama's not on the ballot. I mean, I think there's a lot of evidence of that. But the idea that there's this sort of locked-in conventional wisdom

that Republicans win low turnout and Democrats win high turnout. And by the way, we haven't talked about the individual merits of some of these arguments. For instance, I do think that elections need an end date. And so this idea that we're accepting absentee ballots nine days after election day strains my ability to believe that that's how we should run elections. Nine days seems like a lot. Especially ballots that are received nine days after election day with no

postmark. And that's not even really a fraud concern for me. It's a finality concern. If we have a close election and we're waiting nine days and then there aren't postmarks, election day is election day. If you're mailing your ballot the day before, hop in your car, drop it off. That's not me wanting to limit people's participation. That's me wanting finality as close to election day as possible. And so again, like on, on some of these individual questions on law, I think you can come out on either side, but you're right. There's this overall, uh, Republicans always seem to be on one side of this ledger, regardless of what the rule is we're arguing about. Yeah. I mean, can't we take these on a case-by-case basis?

And can't we even parse some of the issues? So for example, are we going to count un-postmarked ballots received six days after the election? That's much less compelling to me than a postmarked ballot, postmarked by election day, received three days after the election. Through no fault of the voters, you know? Like if it's postmarked before election day and three days after the election. There are no faults of the voters. If it's postmarked before election day and it's received after the election, the voter didn't do anything wrong. And I think that's also a really important

point in some of these cases. Where does the fault lie? Did the voter, for instance, not sign it, not put it in the envelope despite instructions to do so is different. Now, maybe you're still sympathetic to that, but it is different than the voter did all of those things and got it in the mail and the mail didn't get it there on time. Yeah, that was one of the most compelling findings of fact in the Wisconsin case that we talked about, which was given the,

there was evidence in the record of postal service delays and there was evidence in the record that a service delays, and there was evidence in the record that a voter could do everything that they were supposed to do, including returning the mail ballot the very day they got the mail ballot, so that they got it on, say, October 30th, and they returned it postmarked October 30th, and mail delays would result in their disenfranchisement. Those are different kinds. These findings of fact matter. The specific findings of fact in individual cases matter a great, great deal.

So no, I'm not blanket endorsing every sort of democratic proposal to count no matter what, which as we've noted, will start to switch immediately if the Democrats are leading some of these counts deep into, you know, like November 4th and 5th. But and so I'm not endorsing every single one of these changes, but I'm saying that the blanket position, which is that in every case, whatever legislative limitation exists must be valid because, quote-unquote, elections have to have rules, is not the way we treat other constitutional rights. It is not. And so, you know, it's kind of an interesting sort of, you know, public talking point. But, you know, maybe, you know, this is

a larger philosophical argument, but one of my beefs with sort of conservatism in general is there are more amendments to the Constitution than the first and the second amendment. There are more. And that they're equally valid and that they have equal strength in many ways as a matter of sort of the fundamental human rights and the fundamental aspirations of our American republic. And we need to stop acting like Amendments 1 and 2 are the only ones that matter or the ones that matter far more than everything else. And that the rest of the Constitution is also fundamental to our republic. And that would, if it went right before election day, that'd be a perfect segue to a qualified immunity case that just handed down in the Supreme Court. Well, I do want to talk about one other part of the constitution, and that is article two, section one, clauses two through four, David.

Oh, well, I was wondering when you'd bring them up. Finally, I know. So this is actually funny because we've gotten some questions about this and we haven't addressed it. But clause four says the Congress may determine the time and choosing the electors and the day on which they shall give their votes, which day shall be the same throughout the United States. That's election day, right? So why can we have early voting, David? And this question becomes interesting because I think that the answer is pretty easy, which is early voting is just sort of collecting those votes ahead of time, but they're announced, counted, et cetera, on election day. And it's sort of this fiction that we have.

And that's why you could argue that Pennsylvania, Wisconsin, and Michigan, the states that we're angry about, who aren't counting their absentee ballots in advance, they're actually just really adhering to the letter of the law there on that section clause four. of the law there on that section, Clause 4. But what happens if an early voter dies before Election Day? Does their vote count? And the National Conference of State Legislatures have done sort of a little survey. 12 states say they do count these. 15 states are clear that they do not count the early votes from voters who then become ineligible due to death. And the rest of the states, I think we just don't

know. Now, on the one hand, this is obviously a relatively small number of voters, but we've had some particularly heart-rending cases this time around because a voter will cast an early ballot and then potentially die of COVID. And then their vote isn't counted despite them feeling like, you know, they really want their vote counted because they know better than anyone who should handle this pandemic moving forward. But David, I do think, and folks have asked this, I do think there's a pretty good case that should such a vote matter because the constitution says that it is on a single day, that the early vote fiction means that you cannot count someone's early vote who then becomes

ineligible before election day due to death. And those 12 states, while generous, probably are invalid. So here's a question. How do state election officials know? Yeah. So the absentee ballots are kept segregated. The early votes, though, not so much. You would know how many votes were invalid. And that's my point about how those 120,000 votes aren't going to get thrown out. Because what would happen is if those, if, you know, for instance, I don't know what the average would be in a precinct, but let's say six people have passed away in that precinct and the margin is less than six people, you would not know if they early voted

versus absentee voted where those ballots are to be able to pull them out of the stack and you would have to call a new election. Now, but here's the interesting, no, I'm even more basic than that, which is- Oh, how would you know they died?

Yeah, what bureaucratic official is responsible for telling sort of the board of elections that Jane and John Doe passed away from COVID? Like, the coroner, I don't... Who does that? Like, is that just a...

For those who don't, who can't see, Sarah is shrugging. I am shrug see, Sarah is shrugging. I am shrugging. Now, we have some news stories of people whose last wish, like in the day before they died or something, voted and how proud they were of doing that. There's a great CNN story about a

20-year-old young woman who cast her ballot before dying of cancer in a state that will not count her ballot in Wisconsin. So I do think it's the case that if, for instance, you end up in the news, they're more likely to notice. But there's also some crowdsourcing that goes on here. We know that plenty of groups

who are looking for voter fraud will go through and find out how many, quote unquote, dead people voted in the last election. Now, they're not looking for people who died after they cast a ballot. They're looking people who were dead the whole time and magically cast a ballot. But nevertheless, you could imagine them stumbling upon recently deceased voters. So I don't know how that part works. I only know the legal part, David. So here's some morbid advice, morbid legal advice. If you have a relative who really, really, really, really wanted their vote counted, who passes away right up right before the election

and they already early voted, hold the obit. In other words, don't publish the obituary in other words, don't publish the obituary until after. But that's a fascinating legal issue that has really sort of like a fascinating bureaucratic component as to whether as a practical matter, the legal issue is impacted at all. And remember what I said in Monroe County in Florida, Bill Nelson won that county by 16 votes.

You could imagine out of 35,000 people that 16 died between early voting and election day, potentially. I don't know the actuarial tables on that, but I wonder if someday someone will have standing in one of those super down ballot races to challenge the states that count newly ineligible voters who were counted on election day. So, Sarah, it is now time for predictions. Okay. All right. So I'll go first to just sort of break the ice. So I, and it's, I'm still projecting, although I'm less confident than I was, that the Democrats take the Senate.

I think they take it very narrowly, very narrowly, leaving Joe Manchin sitting upon a throne of melted swords, like the Iron Throne ruling the land. But I still think the Democrats narrow you know the iron throne uh ruling the land but i still think the democrats narrowly take the senate and my electoral map is biden 374 trump 164 whoa and i yes i come to that map by giving biden florida georgia north carolina ohio a, Arizona, and I'm less certain about this after the Des Moines Register poll, Iowa. I think that the polls are off a little bit and they're off in Biden's favor. So that's my projection. I think these projections are stupid. I've registered my objection to the projections

because for me, it's all about a path. So I think that there's a good chance that Biden wins one of these three states, Arizona, Florida, and North Carolina. If he does so, I believe that, well, technically speaking, you cannot call the election. I will then believe that Biden will be the next president of the United States. And we're then just waiting for some final details to come

through. I also believe that the real question is whether Biden on election night without the mail-in ballots can be ahead in Pennsylvania, Michigan, or Wisconsin? I believe that he can. And the question is, is it two of the three? In which case, again, this thing is over. So that's how I look at this, David. I do not look at it as a projection. However, to humor you, I have made a map. Yes. And I will tell you the map, which is Biden 297. He doesn't break 300. He wins Arizona.

He loses Florida and North Carolina. He wins Pennsylvania, Michigan, Wisconsin, Nebraska's and Maine's little one-offs there and wins Iowa. So there you go. I did it. But again, not how I will be

looking at things on election night. I know we have all of the... We could be wrong. This is, you know... Oh, no, we will be wrong. That part's obvious. But if you want to know

who's going to be the next president, you clump the states. Florida, North Carolina, Arizona is in one basket. Pennsylvania, Carolina, Arizona is in one basket. Pennsylvania, Michigan, Wisconsin is in another basket. If Biden wins one of those states that will have their ballots all counted on election night, Arizona, Florida, and North Carolina, you can bet that Biden's going to be the next president. If Biden is leading on election night in Pennsylvania,

Michigan, or Wisconsin, if two of those three, you can bet that Biden's going to be the next president. So my projection is based on the idea that the national popular vote, which I know is not, it's not entirely meaningless, but it does serve as a leading edge indicator. And then you have some trailing edge indicators of the narrower states that it's going to be closer to the 538 average of eight to nine than some people might be projecting. And if it's eight to nine, that means that you're going to see some of these close states break Biden's way. And some of the states that aren't so close, like Pennsylvania, Wisconsin, Michigan, perhaps be even a broader, you know, a broader victory from Biden than people are projecting. But that's just sort of, you know, my gut feeling. It's not based on any special insight.

And as Sarah said, it's apt to be gloriously wrong on election night. Here's the prediction that I will make. You made your prediction on states, and I poo-poo that exercise. But here's the prediction that I will make. We will know the winner on election night. I agree with you on that. You know, because part of election night

is the incredibly serious aspect of determining the leader of the free world. And then the other part of it is this really uniquely marvelous part of democracy where you just see the people choose in real time with all of its drama and pathos and surprise and disappointment. It's an incredible, it's incredibly consequential and it's also incredible as spectacle. I agree with that. It is the glory of the free world tomorrow in the United States. Yes. And so I hope all of you voted.

If not, you should go vote tomorrow because I subscribe to the philosophy that we need more people voting, more people bought into their government. And it is both a duty and a privilege to get to vote in this country. And we should all do it. I will not disagree with you there.

I think we're out of time and we'll save to another time a truly important cultural question. We have dealt with many important cultural questions, Sarah, involving marriage and friendships and relationships and midlife crises and anxiety and depression and all of these things, which are very, very weighty. There is a question we need to ponder

that is at the very least equally weighty for a future episode, and it is this. Is the Mandalorian saving Star Wars? The brisket went as Baby Yoda, which I know some of you are shocked he didn't go as a brisket, but that seemed a little gruesome, honestly. So it was a little hard, but I did do sort of a DIY Baby Yoda situation. He had the mug, his pod was his car seat covered in foil, which I did have to think to myself, if I have to go to the emergency room

and explain to them why my four-month-old infant ate metal, the DIY Halloween excuse is gonna like maybe have CPS getting a call. But I put on little mittens so he couldn't grab the foil. That was what I came up with. I love it. No, I saw the pictures. The pictures were fantastic. Our youngest daughter is old enough to go trick-or-treating by herself. So she went with one of her friends from church and they roamed our neighborhood for several hours

collecting massive amounts of candy. And my wife and I stayed on the front porch greeting trick-or-treaters. We had a lot fewer than we normally have. But we did have an extra treat, Sarah. We had little bottles of champagne because we had hosted a baby shower for my oldest daughter on the Friday night before and had these COVID-safe drinks and snacks. And there were little bottles of champagne and we had a ton left over. So we gave out candy for the kids and little bottles of champagne for the adults. And it was a hit for those people who ventured out. No doubt. Very generous in the Halloween spirit.

It was in the Halloween spirit of generosity. I have to say now that I have a kid, but maybe even before I like Halloween a lot. I mean, Thanksgiving is still my favorite holiday. And I think this Thanksgiving will be really interesting because I think we're going to see a whole lot more friends givings going around as people can't go to see their families really sadly,

but man, Halloween is creeping up there in terms of my favorite holidays. It is a lot of fun. It really is. It's chill. It's concentrated in one day. Well, I would say it's chill, except some families really go all out on Halloween decorations in our neighborhood. It's pretty remarkable. But generally, it's chill. It's sociable. It's communal. It's just fun. Absolutely. But I agree with you. Thanksgiving rules. Christmas is too stressful.

All right. We'll talk side dishes here in future episodes. Sounds good. And that's when I re-up my recommendation of chicken tetrazzini, which has already changed one listener's life. It has already changed one listener's life. But we'll be back Thursday, and we're going to have a lot,

a lot to talk about. And we may even be able to squeeze in an analysis of oral arguments and what could be one of the most important religious liberty cases in the last decade that nobody is talking about because we've got this little thing called an election going.

But those oral arguments are happening the day after the election. So we've got a ton to talk about Thursday. We'll be back on Thursday and we'll see whose prediction is closer to correct and the winner shall then verbally dunk on the loser relentlessly. I look forward to it.

Your Georgia prediction is dumb. Wow. So you can extra dunk if you're right. Oh, I will. I will hang on the rim and taunt you for seconds at a time. Well, this has been the Advisory Opinions Podcast. Please go rate us on iTunes, subscribe on iTunes, and check us out at thedispatch.com. Again, that's thedispatch.com, and we will talk to you again in just a few short days. Bye.