Digby's Hullabaloo Posts

Do the work. Score the points.

Noah Berlatsky of Public Notice reflects on Tuesday’s elections (bolding mine):

Some 48 hours ago, pundits were rushing to explain how, why, where, and exactly to what extent the Democratic Party is doomed.

A New York Times/Sienna poll released last weekend showed President Joe Biden catastrophically trailing indicted orange gasbag of hatred former President Donald Trump in virtually every key swing state. According to the poll, Trump leads Biden by five points in Arizona, four in Pennsylvania, six in Georgia, and 11 in Nevada. Analysts like Nate Silver and Matt Yglesias made panicky noises, condemning Dems for not mounting a serious primary challenge to the incumbent. There was weeping, there was gnashing of teeth.

And then, we had an actual election.

Tuesday night’s results are difficult to square with the “Biden and Democrats are doomed” narrative. In an off-year election, with the incumbent president’s approval rating mired below 40 percent, you would normally expect the president’s party to be stomped, crushed, spindled, and obliterated.

But instead, Democrats did fine. In fact, they did better than fine, and then even better than that. Tuesday looked a lot like a blue wave, with Democrats romping to victory in blue and purple states and overperforming dramatically in red ones.

It’s difficult to predict what this means for 2024. But we know that in 2022 and now in 2023, Biden’s low approval rating appeared to be entirely disconnected from Democratic performance. That should at least give the likes of Silver and Yglesias a moment’s pause in their punditing of apocalypse.

After spending four hours each morning commenting on the day’s political news, lately I’m reworking For The Win for 2024. As much as I’m an admirer of my friend Anat Shenker-Osorio’s messaging research, in the end progressives actually have to put points on the board. It’s not as sexy as messaging or punditry or political philosophy, but it’s where the rubber meets the road (or whatever metaphor you’d prefer). For that we have to get out of our heads:

Winning in your head is like bringing sports visualization training to the Olympics and thinking you’ll be competitive when you show up with no conditioning and no skills.

Many races next fall will be closer than what we saw last night. (Democrat Andy Beshear won in Kentucky by 5 points; Ohio Issue 1 passed by 13.) Democrats next year have to execute plays and score points (votes, not sick burns). Candidates and campaigns try to motivate voters to get off their couches and get to the polls. (Target better, maybe?) Part of motivating voters is message-driven, sure, but actual scoring comes down to mechanics, logistics, and execution:

The job of county committees is a political version of the Last Mile problem in telecommunications. All the high-profile effort and capital spending goes into clearing rights-of-way, erecting towers, and stringing lines. The Last Mile problem is the less conspicuous work of hooking up end users one … by one … by one because that is where companies stop spending money and start making bank.

The only thing that counts on Election Day is how many bubbles voters fill in on their ballots for Democrats. Voters actually have to show up and execute the documents. This isn’t like Trump declassifying documents with his mind. Those voters (many of them) will arrive aware of only a handful of the races and candidates printed on their ballots. Without your help, they’ll leave down-ballot races blank — school board, city council, county commission, etc.

Please contact your local county Democratic committee and ask about their 2024 get-out-the-vote program. Work the phones, knock the doors. Be the smiling face reassuring voters as you hand them a sample ballot outside the polling station.

It’s too late to talk policy. Uncertain voters are looking for reassurance.  If they trust you, they will vote with you. That’s how it works. Trust me.

Stop white-knuckling polls

Everybody Relax. The Net economy runs on clicks. The polling economy runs on polls. Cable news runs on ratings 24/7/365. All make money promoting a horse race with a photo finish.

MSNBC kept flipping back to Steve Kornacki updating returns from the Kentucky governor’s race Tuesday night long after Dave Wasserman of Cook’s Political Report had “seen enough.” The Associated Press called the race for incumbent Democrat Andy Beshear 90 minutes later. So it goes.

I've seen enough: Andy Beshear (D) wins reelection in #KYGOV, defeating Daniel Cameron (R).

— Dave Wasserman (@Redistrict) November 8, 2023

On Election Night, we don’t count policy positions or polling averages or pundits’ opinions. We count votes. It’s how democracies keep score.

And last night? Last night was “nearly a clean sweep” for Democrats.

We're one year out from the '24 election. Lots can happen. We should all practice humility and work hard to defend our democracy (which means electing Dems). But just for a moment I'd like to posit that maybe @POTUS Joe Biden understands elections better than the punditerati.

— David Rothkopf (@djrothkopf) November 8, 2023

Beshear won another term in “red” Kentucky on an explicit abortion rights campaign against his GOP challenger. Beshear went straight at Daniel Cameron on the abortion issue with this powerful ad featuring rape survivor Hadley Duvall.

“Because of her courage, this commonwealth is going to be a better place and people are going to reach out for the help they need,” Beshear told supporters.

Democrats kept control of the Virginia state Senate and flipped control of the House of Delegates, dealing a blow to Gov. Glenn Youngkin (R). Republicans had been looking to outlaw abortions in Virginia after 15 weeks.

“Glenn Youngkin got fleeced tonight,” quipped Norm Ornstein.

Just a reminder that when abortion rights have been on the ballot they have not lost anywhere. Not in Michigan. Not in Kansas, Kentucky or Montana. Now, not in Ohio.

— L O L G O P (@LOLGOP) November 8, 2023

Washington Post:

Abortion rights advocates won major victories Tuesday as voters in conservative-leaning Ohio decisively passed a constitutional amendment guaranteeing access to abortion, while those in ruby-red Kentucky reelected a Democratic governor who aggressively attacked his opponent for supporting the state’s near-total ban on the procedure.

[…]

The results sent a stark signal about enduring demands across the political spectrum to protect access to abortion more than a year after Roe v. Wade was overturned by the Supreme Court, heralding potentially far-reaching implications for the 2024 election. They offered more evidence that the end of Roe and the patchwork of abortion bans that followed have given Democrats a powerful argument to turn out their base and sway moderates and some Republicans. And they reaffirmed that GOP candidates who support restrictions are still struggling to find an effective message, even as some have tried to soften their pitch.

🚨 VICTORY

Ohioans are tired of having our rights attacked and our own government continually subvert our democracy.

And we will SHOW up to stop it!!

Like we just did. For a year!!

When I saw this line, I knew something special was happening.

WATCH: pic.twitter.com/wiVZSmCQ2E

— David Pepper (@DavidPepper) November 8, 2023

Democrats everywhere in 2024 will want to listen more to voters than to pundits and consultants. Americans are angry about the demise of Roe v. Wade. Democrats own that issue. It motivates voters.

“Across the country tonight, democracy won and MAGA lost,” President Joe Biden tweeted last night. “Voters vote. Polls don’t. Now let’s go win next year.”

Simon Rosenberg of the Hopium Chronicles is an unabashed cheerleader for Democrats. But for your edification, he wrote last night, “As we did in 2018, 2020, 2022 and as we’ve had night after night across the country this year. The Democratic Party is very strong right now. The Republicans are in deep trouble.” Tuck that under your pillows.

But don’t expect the press to abandon its hyping of every poll that promotes a “Biden in trouble” narrative. Press incentives have not changed and likely will not. The press is quick to report and slow to learn.

“I think some political reporters should try a little harder to hide their disappointment at Dems over performing relative to Biden’s approval ratings but that’s just me,” posted Adam Serwer of The Atlantic at Blue Sky.

Taking bets on which publication will have the first "why this is bad news for Biden" take. https://t.co/8LWZW0ReX9

— James Fallows (@JamesFallows) November 8, 2023

So, step away from the ledge, folks.

Maybe not you, Rick.

Post by @aaron.rupar

View on Threads

Maybe…

That case about whether domestic abusers should be allowed to carry guns was argued today:

About 40 minutes into Tuesday’s Supreme Court argument asking whether a federal law prohibiting domestic abusers from owning guns is unconstitutional, Chief Justice John Roberts asked J. Matthew Wright, the lawyer arguing against the law, a question that no attorney ever wants to hear.

“You don’t have any doubt that your client is a dangerous person, do you?” the Chief asked Wright.

There is, indeed, very little doubt that Wright’s client, Zackey Rahimi, is a very dangerous man. A Texas court determined that Rahimi “has committed family violence” and that he “represents a credible threat to the physical safety” of his ex-girlfriend or other members of her family.

If anything, that’s a massive understatement. Rahimi allegedly hit his ex-girlfriend in a parking lot, and then fired a gun at a bystander who witnessed the fight. He then allegedly called the ex-girlfriend and threatened to shoot her if she told anyone that he’d assaulted her. And he’s accused of committing multiple other crimes where he fired a gun — in one of them, he allegedly fired into a man’s home with an AR-15 rifle.

The specific question before the Supreme Court in United States v. Rahimi is whether a federal law makes it a crime to possess a firearm if a court has determined they are a threat to their “intimate partner,” their child, or their partner’s child violates the Second Amendment.

Only Justices Clarence Thomas and Samuel Alito appeared open to the possibility that this law could violate the Constitution.

And, while Alito at times made arguments that seemed lifted from men’s rights activists — such as a claim that courts frequently impose domestic violence restraining orders without considering if they are warranted — even he seemed uncomfortable with some of Wright’s arguments by the end of the Court hearing.

The biggest question in Rahimi, in other words, does not appear to be whether the Supreme Court will reverse a right-wing federal appeals court that struck down this ban on gun ownership by domestic abusers. The biggest question appears to be how the Court will do so, and whether it will issue a sweeping decision limiting a recent pro-gun decision that has sown chaos and confusion in the lower courts.

Three ways that the Supreme Court could resolve Rahimi

Rahimi is an arresting case: Ordinarily, clear-cut cases such as this one do not reach the Supreme Court. The system of federal trial courts and intermediate appeals courts is supposed to weed out cases that present questions as seemingly one-sided as the ones in this case — again, the question is Rahimi is whether someone that a court has determined to be a violent threat to their partner or to a child should own a gun.

But Rahimi is before the Court for two reasons. One is that it arose out of the Fifth Circuit, a far-right court, dominated by MAGA stalwarts, that routinely hands down head-scratching decisions reaching right-wing results. Indeed, the Fifth Circuit hands down trollish, unworkably disruptive decisions so often that correcting these errors has become one of the (itself very conservative) Supreme Court’s major projects.

This term, the Court is expected to reverse Fifth Circuit decisions that declared an entire federal agency unconstitutional, that virtually neutralized another federal agency, and that allowed Republican state governments to seize control of which content is published on Twitter (the site that Elon Musk insists on calling “X”), YouTube, or Facebook.

That said, the Fifth Circuit’s penchant for judicial arson can only explain part of why Rahimi is before the justices. The other explanation is that, in New York State Rifle & Pistol Association v. Bruen (2022), the Court’s Republican appointees placed an extraordinarily high burden on any lawyer tasked with defending any gun law. Under Bruen, a gun law is typically unconstitutional unless similar laws existed in the framing era. And there were no bans on gun ownership by domestic abusers in 1791.

In any event, a majority of justices — possibly as many as eight — seemed to agree during Tuesday’s argument that they should not follow Bruen’s reasoning to the absurd conclusion that the Fifth Circuit reached in Rahimi. But there was considerable disagreement about how to reverse the Fifth Circuit.

Justice Ketanji Brown Jackson, a frequent critic of the Republican justices’ use of history to justify reaching conservative results, appeared to suggest several times that Bruen should be tossed out in its entirety.

She repeatedly asked what work Bruen’s “history and tradition” framework is doing if the fact that domestic violence was largely tolerated in the framing era doesn’t prevent modern-day legislatures from enacting the law at issue in Rahimi, which is rooted in modern-day sensibilities. And Jackson also brought up the uncomfortable fact that laws disarming enslaved Black people and Native Americans were common in early American history. The Bruen framework, she suggested, seems to focus too much on the rights afforded to white Protestants in early America, and does not capture the history of all Americans.

Jackson, however, was the only justice who attacked Bruen so directly. A critical bloc of the justices, which may include Roberts, Obama appointees Sonia Sotomayor and Elena Kagan, and Trump Justices Brett Kavanaugh and Amy Coney Barrett, seemed to hone in on a different argument that would weaken Bruen without forcing the Court to make the embarrassing concession that Bruen’s framework is an unworkable mess that consistently produces monstrous results.

Under this framework, which was proposed by Solicitor General Elizabeth Prelogar, “dangerous” individuals are beyond the scope of the Second Amendment, and legislatures have broad authority to determine which types of people are too dangerous to own a firearm. That category may include people like Rahimi, who have received a court proceeding determining them to be dangerously violent. It also may include minors or people with serious mental illnesses who may not handle gun ownership responsibly, even though these conditions are not their fault.

This is why Roberts’s question about Rahimi’s dangerousness was such a bad sign for his chances of prevailing in this case. Similarly, near the very beginning of the argument, Barrett seemed to state outright that she intends to vote against Rahimi — suggesting that there is no question that someone subject to a domestic violence restraining order is dangerous.

A third possibility, first floated by Justice Neil Gorsuch, was to try to shrink the question the Court decides in this case. As Gorsuch repeatedly noted, the Fifth Circuit held that the federal law disarming domestic abusers is unconstitutional on its “face,” a legal term that means that there is no set of circumstances where the law could be considered valid.

But even if there may be edge cases where the law is applied to someone who is only marginally dangerous, or who may have received less due process than Rahimi did, Gorsuch appeared to agree that Rahimi, the unusually dangerous individual before the Court in this case, should not have a gun.

The good news for everyone who agrees that victims of domestic violence should not be murdered is that at least seven justices appear poised to reverse the Fifth Circuit. The question is whether they will also roll back some or all of their incompetently drafted decision in Bruen.

Fingers crossed.

And nobody seems to be able to rein him in. It’s obvious most Republicans don’t want to.

Here’s a good analysis of where we are with Trump and his legal problems from Stephen Collinson at CNN:

The judge in Donald Trump’s civil fraud trial despairingly pressed the ex-president’s lawyer: “I beseech you to control him if you can.”

Judge Arthur Engoron’s plea reflected his frustration at an incorrigible witness who boasted Monday about his piles of cash, aimed scathing political attacks and spouted uniquely illogical logic.

But Engoron, who is presiding over the New York trial, also put his finger on a deeper question that will define a singular political figure’s place in history.

And the answer, as always, was no, Trump cannot be controlled.

No mere lawyer could impose the kind of discipline that two-and-a-half centuries of constitutional checks and balances could not provide during Trump’s time in office or since. And after threatening to dismiss the ex-president from the witness stand, Engoron opted to let the Trump storm rage in the apparent hope that it would blow itself out — though history has shown it never does.

Trump’s combative defense against claims he inflated his wealth to rip off banks, insurance firms and New York state, served as a troubling preview of a 2024 election season that is likely to become ensnared with his massive legal peril. But it also revealed insights into Trump’s relentless refusal to give an inch to his enemies and showed why voters who despise East Coast authority figures and liberal societal codes adore him.

His testimony offered warnings to lawyers who will seek to puncture his self-created bubble of alternative realities with facts and evidence — and showed how he might try to charm and confuse jurors in his coming criminal trials.

As he climbed into the witness box and lifted his hand and swore to tell the truth — an almost ironic act given his record of falsehoods — Trump obliterated yet another convention. Ex-presidents in America don’t typically get called to explain their actions in court. And Monday’s four-hour dive into the Trump Organization’s financial records was just a warm up for subsequent criminal courtroom dramas that could mean the Republican Party will nominate a convicted felon for president. Trump denies wrongdoing in each and every case against him.

Trump shows what he will do to save himself

Trump in a blue suit, tie and shirt instead of his campaign livery of dark suit, white shirt and improbably long red tie, left no doubt that if tearing down legal and political systems is what it will take to save him, he won’t hesitate.

“It is election interference because you want to keep me in this courthouse all day long,” Trump told prosecutors working for New York Attorney General Letitia James, accusing her of trying to base a run for governor on an attempt to destroy his business. As he often does, the ex-president was turning facts upside down — it is he who is politicizing the justice system in his own bid for a return to power.

And before he faces judgment, Trump is seeking to discredit the organs of accountability that will seal his fate. “It is an extremely hostile judge,” Trump added, raising his hand to point at Engoron, who sat beside and just above the witness box on the bench.

The ex-president’s day was a microcosm of a riotous life as a real estate magnate, New York City icon, showbiz reality star and demagogic political candidate and US president. He obstructed, exaggerated, spouted insults, brassily trampled courtroom protocol and substituted partisan narratives for the yes and no answers that the judge demanded. Yet Trump also expertly used the outraged stream of consciousness and linguistic dexterity that turns his interrogators in the law, or the media, in knots.

There were even flashes of humor, hinting at one of the key ingredients of the political method that has seduced millions of Americans. Asked, for instance, whether he had built houses on a golf course in Scotland, Trump conceded that he had not but added waspishly: “I have a castle.” And there were oodles of quintessential Trump self-promotion. He boasted that his Florida Mar-a-Lago resort was “a very successful club,” said he’d built the “best building on the West Coast” and claimed dubiously that his 18 holes in Aberdeen was the “greatest golf course ever built.”

At one point, Trump mused: “I’ve had a lot of cash for a long time.”

Trump’s supporters could not watch him since the trial was not televised but they would have recognized the bulldozer on the witness stand and the blow-it-all-up persona that made a twice-impeached, four times indicted ex-president who left Washington in disgrace nearly three years ago again the Republican front-runner.

It became clear long before Trump left court complaining of a “scam” that his legal strategy was indistinguishable from his familiar political one: admit nothing and brand any criticism as proof of a vast, unfair plot against him. The goal was transparent: leverage the latest bid to call him to account into a campaign fueled by a martyr complex that can win back presidential powers to drive away his legal woes.

“People are sick and tired of what’s happening. I think it’s a very sad day for America,” Trump said at the end, before noting The New York Times polls showing him leading President Joe Biden in key swing states — a tactic his lawyer Chris Kise also used to imply the “soon to be” next president wasn’t being shown sufficient respect.

Trump’s dignity is ruffled

Yet Monday was also a rude awakening for Trump.

Retired commanders-in-chief are usually surrounded by a force field of deference, with their secret service detachments and forever title of “Mr. President.” Trump has long posed as the alpha male and his entire business and political creed — in person and on social media – is based on intimidation. But it must have been a long time since anyone had shushed Trump like Engoron, cutting him off ahead of another meander by saying, “No, no, you answered the question.”

There was no “Mr. President” from the attorney general’s lawyers or the judge. The witness was simply “Mr. Trump.” He sat on a leather chair, alone in the wood paneled witness box, his hands clasped in his lap.

But the trial quickly became a test of wills between Trump and Engoron over who controlled the court. After one trip by Trump down a rabbit hole, the judge asked the lawyers if they had asked for an “essay” on brand value. Frustrated with partisan asides, Engoron warned that “this is not a political rally, this is a courtroom.” And the judge bristled at the ex-president’s complaint that he always ruled against him. Adopting a tone typical of Trump subordinates, Kise argued with the judge’s admonitions against speeches and lauded the ex-president’s “brilliant” replies.

Later, the judge, perhaps trying to avoid offering grist for a potential appeal said he’d let the ex-president ramble. But by the end of the day, Engoron’s resolve frayed: “It feels like a broken record,” he said of Trump’s answers. The ex-president snapped back: “He keeps asking me the same question over and over.” Engoron will however get the last word. He has already ruled that Trump, his two adult sons and the Trump Organization are liable for fraud in inflating his wealth in return for advantageous deals with banks and insurance firms. The trial will resolve related claims and decide how much restitution is due and whether he will be barred from doing business in New York.

How Trump defended himself

It was hard to tell whether Trump had helped or hurt himself. He did appear to disrupt the smooth running of the trial. But – as he complained at one point – there is no jury, and Engoron will be left to adjudicate the trial.

Trump’s defense broadly rested on three planks. He denied accusations that he’d inflated his properties, insisting conversely that he’d undervalued most of them by not including ill-defined millions of dollars implied by his “brand” and its potential. He claimed that he was protected by a disclaimer clause in financial documents, which meant that banks and insurance firms had to do their own due diligence. And he repeatedly insisted that “there were no victims,” so there can have been no crime.

This blanket deniability and belief in his own imperviousness echoed Trump’s false proclamations in office that the Constitution granted him almost absolute powers. Or that the phone call with Ukrainian President Volodymyr Zelensky that earned him his first impeachment or his January 6, 2021 speech before the Capitol insurrection were “perfect.”

Trump also offered an intriguing glimpse into his mindset as a businessman that makes it easier to understand his false insistence that he actually won the 2020 election when he clearly lost it.

“I can look at a building and tell you what they are worth,” he said, creating the impression that the true valuation of a property was something he could just pluck out of the air, with little regard for all the complex financial instruments that normally add up to an investment’s true value. This desire to make a reality just what he wants it to be has long defined Trump’s political approach. And he seems to adopt a similar tactic in looking at an election and deciding who won regardless of the actual evidence about who got the most votes.

This question of whether Trump actually believes what he says will be key to two election interference trials — one in federal court in Washington and one in Georgia where prosecutors must show he intended to break the law. Trump insists that he was convinced he won in 2020, despite all evidence to the contrary. And in his virtual reality world, he may believe it or may at least be able to convince a jury he did.

But the most sobering takeaway of Trump’s day in court on Monday was that while the law might succeed in enforcing accountability where constitutional and political constraints failed, there is no sign yet that anyone or anything can bring the potential 47th president of the United States under control.

Bolts has a nice overview of what’s at stake in tonight’s elections. This is the intro, you just need to click over to see the cheat sheet:

The 2024 presidential election is already in full swing, but first voters are settling a swath of critical races this fall. The balance of power in state and local governments is on the line in myriad ways, from the five states where trifectas are at stake to the fall’s sole race for supreme court.

Bolts has identified more than 170 items—and counting—to watch across 31 states, and why they matter, including key races for governors, DAs, mayors, and lawmakers, plus dozens of referendums. 

We’ll add more races to this page through Election Day: Thousands of additional offices, boards, and ballot measures are all on the ballot all around the nation; this page is Bolts’ selection of important races to monitor. We will also update the page with results once they are known.

Most elections on this page are scheduled for Nov. 7, but there are some exceptions: Louisiana holds primaries on Oct. 14 and Nov. 18. Utah holds a special congressional election and mayoral races on Nov. 21. And some elections, such as Houston’s mayoral race, could extend into December with runoffs.

Throughout 2023, we also covered individual elections—with an eye to those that’ll affect voting rights and criminal justice. Read our reporting on Ohio’s referendum on abortion, on Pennsylvania’s supreme court race, on prosecutors in western Pennsylvania and across the south, on the Louisiana governor’s race, on sheriffs in Louisiana, Virginia and Washington, on the races to decide the local officials who will run the 2024 elections in Pennsylvania and Washington, and on Maine’s voting rights referendum.

Finally, as millions head to the polls on Tuesday, many others will not have the chance because of harsh disenfranchisement laws. Our three-part series, “The Ghosts of the 2023 elections,” tells their stories.

Click here for the full rundown.

She says that Attorney General Tish James is “not that bright”

I’m sure she’s just repeating what Trump says every day:

Habba, in a Newsmax interview Monday, said James doesn’t have a good case. However, Judge Arthur Engoron already ruled that the fraud occurred, and the ongoing trial is set to determine damages.

“She’s just not that bright. I’m sorry, I have to say it,” Habba said. “I’ve seen their case; I’ve seen their lawyers. They don’t know what they’re talking about.”

She argued that what the judge ruled is fraud is actually industry standard behavior.

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“Just because a bank who’s giving you a loan says it’s worth what the loan amount is, which is what happens when anybody takes a loan out, they’re never going to say the real value,” she continued. “They’re going to say what they want to say and not a penny more, or what the loan amount is and not a penny more.”

“She needs to educate herself, maybe go to some — I don’t even know how to express how ridiculous this is,” Habba said. “It’s like being in a circus with a bunch of — I mean, what I want to say I can’t say on TV, but it’s crazy. You know, it’s just ridiculous. Anybody with a brain understands that this is just completely insane.”

Hello Pot? This is Kettle….Hi.

G. Elliott Morris  of 538 (the man who took Nate Silver’s place) has thoughts on the polls. I think you will find it reassuring:

Where does the 2024 election stand one year out?

We modeled six scenarios for the presidential race.

American voters cast 158 million ballots in the 2020 presidential election. Yet the winner was ultimately decided by about 43,000 voters across Arizona, Georgia and Wisconsin — the states that carried President Joe Biden over the 270 Electoral College votes he needed to win the presidency. The 2016 election, also closely contested, was similarly settled by about 78,000 votes in Michigan, Pennsylvania and Wisconsin. And if the 2024 election were held tomorrow, it would likely be very close too.

At least, that’s what the polls say. According to an average of national 2024 general election polls I’ve run using 538’s current polling average methodology, Biden and former President Donald Trump are currently neck-and-neck among likely voters, with Trump at 42.9 percent and Biden at 42.4 percent. Support for Robert F. Kennedy Jr. and Cornel West, both of whom have announced runs as independents, is hovering around 11 percent and 4 percent, respectively. Although there’s a long way to go before next November, these numbers suggest that 2024 at least starts out as a close election.

Today, 538 is also happy to release our live-updating average of polls of the national generic congressional ballot, which ask Americans which party they intend to support for Congress in 2024 without naming specific candidates. Since this is our first general election polling average of the 2024 cycle, we’ve also taken the opportunity to update our polling average methodology to adjust polls from partisan firms or sponsors (which tend to favor the party that releases them) and decrease the weight given to polls of all adults or registered voters in horse-race averages (we prefer likely voter polls for these averages). As of Monday at 3:30 p.m. Eastern, the average shows Democrats and Republicans locked in a dead heat for the House popular vote — Democrats technically lead by 0.4 percentage points, but that’s well within the margin of error for our average. That’s even closer than generic ballot polls were on Election Day 2022, when Republicans were leading our average by 1.2 points (they ended up winning by about 1.6 points, after accounting for uncontested seats).

When the polls are this close, it’s important to remember that which polls you include and how you average them could lead to different conclusions about who is currently “winning” or “leading” in a given race. The important takeaway is not who’s up or down, but that the election is close in the first place. We have much more confidence that an election, if it were held today, would turn on a knife’s edge than we do that Trump or House Democrats are leading.

Of course, the 2024 election will not be held today, so it’s incumbent on us to ask …

How useful are early polls?

The answer, frankly, is “not very.” For one thing, the two major parties have not officially selected their nominees. While Trump leads handily in both state and national polls of the Republican primary, there is still time for one of his challengers to turn their luck around — or for a major news event to significantly disrupt his campaign. Biden, too, has primary challengers, and there are persistent whispers that he still may decline to seek reelection due to his age. Neither party will officially pick its nominee until next summer; until that point, these polls are little more than hypothetical exercises.

The general election is also still a year away, leaving plenty of time for the polls to change. At this point in the campaign, most past presidential nominating contests have not had clear leaders, and it was anybody’s guess what issues would be most important to voters come the general election. That makes early polls of little use to campaigns and prognosticators. Research from political scientists Robert Erikson and Christopher Wlezien shows that, between 1952 and 2008, polls taken 300 days before the general election had no predictive value. In statistical terms, they found that polls have an R-squared value of roughly 0 in January of an election year. That’s basically the track record of an (untrained) monkey throwing darts at a dartboard. Plus, as of today, we’re currently 365 days out from the election — quite a bit further out than Erikson and Wlezien were even willing to look, given the variability of their data.

True, there is persuasive evidence that presidential vote preferences are more stable now than they were in the 20th century, and that could make early polls more predictive. But given how often early polls have misled us in the past, it would still be risky to place your faith in them this far in advance.

What about the Electoral College?

Another caveat still is that the national popular vote does not determine the winner of U.S. elections — either at the House or presidential level. It’s the states and congressional districts that do the deciding.

Since we don’t have very many state-level polls of the 2024 presidential election (and I wouldn’t really trust them if we did), the safest assumption at this point is that states will vote how they did in 2020, plus or minus some amount of (1) national shift toward or away from Biden and (2) state-level noise. We can only make guesses at these numbers right now, but I put together a bare-bones, no-polls model for the presidential election that can simulate a range of outcomes given various inputs for those two settings. Scroll down to the bottom of the article if you want to read my full methodology.

Let’s look at six possible scenarios for the 2024 election under this model:

–Scenario A is essentially the “2020 rerun” scenario: I take Biden’s state-level margins from the 2020 election and add the expected level of correlated noise.

–Scenario B is roughly what the national polls indicate today: a tied popular vote, plus noise again.

–Scenario C again uses Biden’s 2020 performance as the starting point, but it also assumes that the Electoral College’s bias toward Republicans will shrink between 2020 and 2024.* We got hints this may happen from the 2022 election, when the presence of abortion rights on the Michigan ballot and other state-level factors gave Democrats a relative boost in northern battleground states.

–Scenario D is another tied popular vote, but this time with the lower Electoral College bias as well.

–Scenario E uses the 2020 election as its starting point but increases the Electoral College’s bias toward Republicans by 1 point relative to the last election.

–Scenario F is the worst scenario for Democrats, simulating what would happen with a tied popular vote and a higher Electoral College bias.

Here is what the model says about how many electoral votes Democrats are likely to win in each scenario, and what odds of victory that translates to:

The 2024 election is likely to be close

Democrats’ range of electoral votes and chances of winning in six different sets of simulations of the 2024 presidential election

	ELECTORAL VOTES FOR DEMOCRATS
SCENARIO	5TH PERCENTILE	95TH PERCENTILE	CHANCE OF WINNING
2020 repeat	222	388	61%
Tied popular vote	197	321	23
2020 with lower Electoral College bias	226	388	71
Tied popular vote with lower Electoral College bias	199	335	34
2020 with higher Electoral College bias	217	388	54
Tied popular vote with higher Electoral College bias	197	321	20

Based on a rough model of U.S. presidential elections that predicts future election results based on (1) historical year-to-year variance in state-level Democratic vote margins and (2) how correlated vote shifts are between states. The “percentile” columns show the upper and lower bound of our prediction for Biden’s electoral votes in each scenario.

As you can see, Biden is favored in the scenarios where he wins the popular vote by a 2020-esque margin, and Trump is favored in the event of a tied popular vote. But in each scenario, the underdog still has a respectable chance — at least 1-in-5 — of winning. Most simulations don’t point to an Electoral College landslide, either. The probability of a 365+ electoral vote win (on the magnitude of Barack Obama in 2008 or Bill Clinton in 1992) is less than 1-in-5 in all scenarios. In other words, neither party can assume an easy path to victory.

It’s worth re-emphasizing: It is still early days. The 2024 election will be decided on Nov. 5, 2024 — 365 days in the future. But all of the data we currently have points to another close race.

Prosecutors: Trump “stands alone in history”

Famous? Infamous? What’s the difference? So long as Donald Trump can wiggle out of accountability yet again, this time for conspiracy to overthrow the 2020 presidential election. His attorneys filed a motion to dismiss the federal charges brought against him over events leading to the Jan. 6 insurrection.

Law & Crime:

Urging a federal judge to disregard Donald Trump‘s latest attempt to cast off his indictment in Washington, D.C., for allegedly conspiring to overturn the 2020 election, prosecutors at the special counsel’s office argue Trump’s criminality “stands alone” in history and that even if he genuinely believed the 2020 election was stolen, he still used “fraud and deceit” as a means to achieve illicit ends.

In his 79-page motion filed Monday, Jack Smith challenges Trump’s attempts to rewrite history and recast himself as victim. What he did leading up to Jan. 6 was not “advocacy.” (Emphasis mine.)

Trump, prosecutors continued, has wrongly attempted to “rewrite the indictment” by coloring his defense with suggestions that his conduct was justifiable because, among other reasons, he only targeted election officials who “were the most informed politicians on the planet” and would “come to their own conclusions” without relying on his assertions of rampant fraud.

“He is wrong,” prosecutors wrote Monday, “lack of success provides no defense to a charge of conspiracy to defraud, much less any basis to dismiss the charge.

In the U.S., a defendant does not have to pull off a conspiracy successfully to be convicted of participating in one or leading one.

“Were it otherwise, defendants captured en route to a bank robbery could not be charged with conspiracy because their crime did  not succeed,” prosecutors wrote. “Indeed, a conspiracy can be committed even if the object of the conspiracy is unattainable.”

Special counsel also urged presiding U.S. District Judge Tanya Chutkan to reject Trump’s insinuations that his speech and conduct around Jan. 6 were “admirable” or that because others in the past had objected  to election results through legitimate means, it excused his speech and conduct as alleged.

“[The] defendant stands alone in history for his alleged crimes. No other president has engaged in conspiracy and obstruction to overturn valid election results and illegitimately retain power,” Smith wrote.

Trump told “knowing lies” to subvert the 2020 election and “knowing lies are neither opinions nor pure advocacy,” the motion states.

“And in any event, the defendant could not use so-called advocacy as a cover for his scheme to obstruct a governmental function through deceit,” Smith continued. “Knowing deceit aimed at defeating a government function constitutes a violation of the defraud clause, notwithstanding his attempts to sanitize his conduct.”

Team Trump is throwing against the wall everything they can get their hands on to see what sticks, no matter how laughable: claims he was exercising free speech, claims the election was rigged, claims of being treated unconstitutionally (double jeopardy).

Trump’s chances in federal court are slim to none. Delay is his game and reelection his “Get Out of Jail Free” card. Plus, the judges are not his principal audience. He’s making himself a martyr to MAGA confederates who sacked the Capitol and to those who stayed home. He raised a mob once.

The South will rise again. The losers have been waiting for nearly 160 years. But their fearful leader couldn’t give shit about them. Donald Trump is the black hole at the center of his personal galaxy.

If you’re ineligible to run for president….

If Donald Trump wants admission to the dictators’ club with Vladimir Putin and Viktor Orbán and Kim Jong Un, he’ll have to prove himself worthy. That’s his plan.

You laugh? Just you wait. Right now he’s busy being prosecuted.

The former and would-be president’s antics on the witness stand Monday in his Manhattan financial fraud trial were as Michael Cohen predicted. Question his net worth and he’ll lose it. Trump was so fixated on maintaining his Richie Rich image that according to press accounts he never once mentioned the 2020 election being stolen from him. It’s that important to him.

Trump rambled. He blustered. He bragged. He insulted the judge and New York Attorney General Letitia James. New York Supreme Court Judge Arthur Engoron multiple times urged Trump’s attorneys to get their client under control. It was as useless as expecting a fussy two-year-old to behave in a fancy restaurant.

Former Watergate prosecutor Jill Wine-Banks said of Trump’s courtroom misbehavior, “This is why we need cameras in the courtroom. Hearing reporters describe Trump’s testimony and loss of control is no substitute for seeing it for ourselves. Let elected and appointed officials know you want cameras in all his trials.”

“Part of what Trump accomplished,” Aaron Blake noted, “was setting a tone for his other cases, including the criminal ones. Nothing will come easy when you go after Trump.”

He’ll get even if you try. He’s planning on it already, the Washington Post reported:

Donald Trump and his allies have begun mapping out specific plans for using the federal government to punish critics and opponents should he win a second term, with the former president naming individuals he wants to investigate or prosecute and his associates drafting plans to potentially invoke the Insurrection Act on his first day in office to allow him to deploy the military against civil demonstrations.

The 14th Amendment may make Trump ineligible to run for president. But the Constitution says nothing about running for dictator.

“It is time to be very, very afraid,” wrote Post associate editor Ruth Marcus.

Slouching towards Lower Slobbovia

Trump already has an enemies list, “including his former chief of staff, John F. Kelly, and former attorney general William P. Barr, as well as his ex-attorney Ty Cobb and former Joint Chiefs of Staff chairman Gen. Mark A. Milley,” say the Post’s anonymous sources. FBI and Justice Department officials are among his targets too, says another. And “Joe Biden,” of course, for having the temerity to beat him in 2020. And Biden’s family.

To facilitate Trump’s ability to direct Justice Department actions, his associates have been drafting plans to dispense with 50 years of policy and practice intended to shield criminal prosecutions from political considerations. Critics have called such ideas dangerous and unconstitutional.

Trump plans to go full Queen of Hearts if not biblical. “This is third-world-country stuff, ‘arrest your opponent,’” Stubbornovsky the Last said at a campaign stop in New Hampshire in October. “And that means I can do that, too.”

Much of the planning for a second term has been unofficially outsourced to a partnership of right-wing think tanks in Washington. Dubbed “Project 2025,” the group is developing a plan, to include draft executive orders, that would deploy the military domestically under the Insurrection Act, according to a person involved in those conversations and internal communications reviewed by The Washington Post. The law, last updated in 1871, authorizes the president to deploy the military for domestic law enforcement.

The proposal was identified in internal discussions as an immediate priority, the communications showed. In the final year of his presidency, some of Trump’s supporters urged him to invoke the Insurrection Act to put down unrest after the murder of George Floyd in the summer of 2020, but he never did it. Trump has publicly expressed regret about not deploying more federal force and said he would not hesitate to do so in the future.

The New York Times reported in July that Trump plans to “alter the balance of power by increasing the president’s authority over every part of the federal government that now operates, by either law or tradition, with any measure of independence from political interference by the White House.”

What may be most alarming is the lack of alarm among Americans in general, much less mobilization. Trump’s MAGA foot soldiers? They hunger to be led by their man-child-king. The rest seem blissfully unaware that the Party of Trump has abandoned democracy save for going through the motions.

From Salon:

“This is the nightmare scenario that to millions of Americans is unfathomable but realistically possible,” Bennett Gershman, a former New York prosecutor and law professor at Pace University, told Salon. “It is also the scenario that millions of Americans look forward to with glee and the opportunity for retribution against the enemies of Trump.”

What’s a little pogrom if the tree of Trumpism needs watering?

Don’t it always seem to go…

Tom Nichols frets in The Atlantic:

The coalition of prodemocracy voters—I am one of them—is shocked at the relative lack of outrage when Trump says hideous things. (The media’s complacency is a big part of this problem, but that’s a subject for another day.) For many of us, it feels as if Trump put up a billboard in Times Square that says “I will end democracy and I will in fact shoot you in the middle of Fifth Avenue if that’s what it takes to stay in power” and no one noticed.

Trump hasn’t taken out billboards, but at his rallies and press events he’s shouting it all as loud as he can, and the people around him are making plans to carry out his wishes. Meanwhile, millions of voters are folding their arms like shirty children and threatening to sit out the election because they don’t like their choices. Some are threatening to withhold support, in particular, for Joe Biden if they don’t get their way about student loans, climate change, or policy toward Israel. They are living in a booming economy that is outperforming any other developed nation since the start of the pandemic on many measures—and they are miserable and angry about it.

Many voters resent hearing all of this. They think they are being bullied into a binary choice between two candidates they do not like, and so they engage in wishcasting: If only someone could beat Trump for the GOP nomination (no one will); if only Biden would step down (he won’t); if only America didn’t rely on the Electoral College (it does); and so on. Trump and Biden are headed for a showdown unless illness or death intervenes. Even if Trump goes to prison, the Republican Party has become so fully corrupted that he could likely still run and get the nomination anyway. And the Electoral College isn’t going anywhere, either.

Trump aims not to make the mistakes he made in his first term. He’ll make new ones. It’s not clear he’s capable of learning from his old ones, but his antidemocratic acolytes have.

“We don’t want careerists, we don’t want people here who are opportunists,” said Project 2025 director Paul Dans. “We want conservative warriors.”

Guess who they’re going to war against?

The perennial question

The Faye Dunaway character in “Network” explained Howard Beale’s popularity: “The American people are turning sullen. They’ve been clobbered on all sides by Vietnam, Watergate, the inflation, the depression; they’ve turned off, shot up, and they’ve fucked themselves limp, and nothing helps. The American people want somebody to articulate their rage for them.”

Is Trump just Howard Beale? It’s as good an explanation as anything, I guess. But remember, Howard Beale was certifiably nuts.

The man is a disgraceful pig. His antics on the witness stand today were beyond outrageous. Lisa Rubin on NBC describes his testimony as “someone who was not in control of his id today.” He’s not in control of his id any day. And yet, he is leading in the battleground states right now because Joe Biden is old and foolish people have bought into his hype that he personally made the economy perfect when he was in office. (It wasn’t, they just have short memories.) It’s infuriating.

Meanwhile, his cult is so impervious to any facts that tarnish their Dear Leader that they are now living in an alternate universe. Look what happened in Florida this weekend:

Please listen to this message I delivered to the Florida GOP. If you agree with me then go to https://t.co/RzzpNHlC00 and support with a $20.24 contribution.

pic.twitter.com/1ULAcOaRRN

— Gov. Asa Hutchinson (@AsaHutchinson) November 4, 2023

Trump acted the way he did on the stand because he knows he has an armed mob backing him up.

Lest we lose hope, there is this:

If the former president is convicted and sentenced — as many of his allies expect him to be in the Jan. 6-related trial held next year in Washington, D.C. — around 6 percent of voters across Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin say they would switch their votes to Mr. Biden. That would be enough, potentially, to decide the election.

That could do it. But it’s almost paralyzingly depressing to realize that only 6% of voters who currently support Trump would reject him if he’s a convicted felon. It’s stunning. To bring back a common refrain during the Clinton impeachment, “what do we tell the children?”