Lies, damn lies, and statistics!
December 9, 2022
At some point, Democrats must analyze voting data from the 2022 midterms to understand what worked, what didn’t, and how they can improve. I believe it is too early for that undertaking and had hoped to avoid writing about the subject until analyses were available from reputable outlets that were not attempting to increase clicks with misleading headlines. But inquiries from worried readers citing such headlines prompt me to make general observations to assist readers in assessing stories that seek to “Make a sow’s ear out of a silk purse.” (And yes, I realize that I have reversed the order of the Scottish proverb.)
Nothing in my comments should be construed as arguing that Democrats have no room for improvement or that there are no worrisome data points in the 2022 turnout. There is room for improvement, and there are worrisome data points (at least at first blush). But what is upsetting readers is an emerging media narrative that goes something like this: “Against all odds, Democrats did unexpectedly well in the midterms. That is cause for worry.”
So, what is the “cause for worry” that many media outlets are using to dampen Democratic happiness with the midterm results? Turnout. Many readers have forwarded articles showing that in races for US Senate, Republican candidates received several million more votes than Democratic candidates. But that statistic shows the difficulty of extracting meaning from data: More Republicans voted for US Senate candidates, but Democrats gained one seat in the Senate and successfully defended every incumbent Democratic seat—something that has not happened in ninety years. The bare “turnout” statistic obscures the historic nature of the Democratic accomplishment in the Senate.
Are the 2022 Senate results good news or bad news for Democrats? Yes! That flippant answer highlights the need to carefully consider data-driven media narratives that can make good news seem like bad news. One plausible explanation is that Democratic turnout was low in non-competitive Senate races in large states (CA, NY, IL, WA); that could explain a several million vote deficit for Democrats. (That was speculation on my part, for illustration; I don’t know if that is the actual explanation.)
Another example came from a reader who forwarded a New York Times newsletter by Nate Cohn, Turnout by Republicans Was Great. It’s Just That Many of Them Didn’t Vote for Republicans. The article suggests that the turnout by “Republicans” was higher than the turnout by “Democrats” in the Warnock-Walker runoff. That is a complicated assertion that deserves scrutiny.
First, Georgia voters do not register by party affiliation, so Cohn’s analysis is based on implied party affiliations. Cohn deftly deals with this issue by ignoring it; instead, he refers to “Republican-leaning voters” and “Democratic-leaning voters.” Which begs the question: If a voter usually votes for Republican candidates but sometimes votes for Democratic candidates, which party gets the “credit” if that voter showed up on Tuesday to vote for Raphael Warnock?
Another obvious question is, “What about Independent voters?” Independent voters are the largest voting bloc in America, but Cohn’s analysis does not mention Independent voters. Instead, he describes a world with only two parties—Democratic and Republican. (He likely clumps Independents in his notion of Democratic-leaning and Republican-leaning voters.) Neither “major party” can win elections without support from a majority of Independent voters, so turnout among Independents is critically important to electoral success. If you read a headline that negatively comments on “Democratic” turnout, check to see how (or whether) Independent voters are counted.
Finally, many readers worry that “If Republicans had nominated a moderate candidate in Georgia, Warnock would have lost.” We should not jump to that conclusion for the following reasons:
First, Warnock beat Kelly Loeffler in 2021. Brian Kemp appointed Loeffler to a vacant seat over Trump’s objection; Loeffler came from a business and investing background and was not known as a MAGA acolyte. (Similarly, Jon Ossoff beat David Perdue in 2021, another candidate with a long career as a business executive.)
Second, the Republican Party that would nominate a moderate candidate no longer exists—and will likely not return. We should expect that we will see MAGA candidates for the indefinite future (or until Trump blows up the GOP by running as a third-party candidate.)
Third, if Warnock had to run against a different candidate, he would have run a different campaign. For example, even a “moderate” GOP candidate would have supported nationwide criminalization of reproductive liberty, opposed LGBTQ rights, denied the reality of the climate crisis, and opposed an assault weapons ban. Presumably, Warnock would have emphasized those issues rather than the unfitness of his opponent to hold office.
Here’s my point: We should be open to the truth about the midterms—good and bad. But we should try to set aside the Democratic inclination to put a negative spin on positive developments—a defense mechanism against future disappointment. Sadly, many journalists understand that peculiar Democratic dysfunction and exploit it by writing articles that amplify Democratic fears and apprehensions. In short, don’t believe everything you read on the Internet, and don’t assume that headlines are fair, accurate, or true.
House Passes Respect for Marriage Act.
Finally! The House passed the final version of the Respect for Marriage Act, which provides some measure of protection for same-sex marriage if the Supreme Court overrules Obergefell. The bill will now be sent to Biden for signature. See CBSNews, House passes Respect for Marriage Act, sending it to Biden.
Only 39 House Republicans crossed the aisle to support the final measure. But 47 Republicans supported the earlier version of the bill (which did not contain protections for “religious liberty” added by Senate Republicans). It is fortunate that Democrats managed to get the bill through Congress during the few remaining days of the current session. Another legislative success for Biden and Speaker Pelosi!
DOJ asks federal judge in DC to hold Trump in contempt over Mar-a-Lago documents.
Per a report in the Washington Post, prosecutors handling the stolen defense secrets case have asked Judge Beryl Howell to hold Trump’s “office” in contempt. See WaPo, Justice Dept. asks judge to hold Trump team in contempt over Mar-a-Lago case. The DOJ request stems from the fact that Trump’s lawyers will not affirm under oath that Trump has returned all classified documents. They will not do so because Trump has previously misled his lawyers about documents in this possession. Although the matter is filed under seal, the DOJ is likely asking for a daily fine until Trump, or someone acting on his behalf, certifies that Trump has returned all documents.
This development is another sign that Special Counsel Jack Smith is moving aggressively to conclude the investigations into Trump. Good!
Readers might wonder why the DOJ’s motion for contempt was filed before a federal district judge in Washington, DC, when a federal magistrate judge issued the search warrant in Florida. Answer: Judge Beryl Howell is supervising the grand jury in DC investigating Trump’s theft of defense secrets. Now that the nonsense lawsuit before Judge Aileen Cannon has been dismissed (because Trump did not file a notice of appeal of the 11th Circuit ruling), the only venue for a motion relating to the documents is the court supervising the DC grand jury that issued the subpoena in the first instance.
Biden negotiates deal to free Brittney Griner; Republicans complain bitterly.
President Biden negotiated a deal to free basketball star Brittney Griner in exchange for Russian arms smuggler Viktor Bout. The administration attempted to secure the freedom of a second American, Marine Paul Whelan, who is being held on espionage charges, but Russia refused. See The Hill, Why the US was able to bring home Brittney Griner but not Paul Whelan. Griner was convicted of drug charges, while Whelan was convicted of espionage (the US says is a fabricated charge).
As explained by an administration official, the choice was to accept the release of Griner or no one:
This was not a situation where we had a choice of which American to bring home. It was a choice between bringing home one particular American, Brittney Griner, or bringing home none.
The fact that Putin refused to release Whelan is irrelevant to Republicans, who have severely criticized Biden for negotiating the release of Griner but not Whelan. See HuffPo, Republicans blast Griner as unfit for rescue.
Another accomplishment by Biden in difficult circumstances! The increasing desperation of GOP criticism betrays their frustration with Biden’s success.
Trump meets with QANON supporters hosting event at Mar-a-Lago.
Earlier this week, Trump met with a prominent QANON supporter who promotes the bizarre ‘Pizza-gate” conspiracy theory. The QANON supporter hosted an event at Mar-a-Lago to raise money to fight the sex trafficking of minors by world leaders—one of the tenets of the QANON conspiracy theory. See ABCNews, Trump hosts event featuring QAnon, ‘Pizzagate’ conspiracy theorist at Mar-a-Lago.
In the three weeks since he announced his 2024 presidential bid, Trump has met with antisemites, Nazi supporters, white nationalists, and QANON members at Mar-a-Lago and called for the “termination of the Constitution.” That is the worst “roll-out” of a presidential campaign in history. And yet, Trump has a 40% favorability rating while President Biden has a 42% favorability rating. We dismiss Trump at our peril.
Concluding Thoughts.
What a week! Remember all the way back to Tuesday, when Raphael Warnock was re-elected as US Senator from Georgia? And when we (likely) dodged a constitutional disaster in Moore v. Harper on Wednesday? And today, when Congress passed landmark legislation granting federal protection to same-sex marriages? That is a lot for one week. Let’s hope the pace slows going into the year-end holidays.
In yesterday’s newsletter, I noted that whatever the outcome in Moore v. Harper, Congress could override pernicious and antidemocratic election laws by passing national voting reform. Reader Alice Schaffer Smith, Executive Director of National Voter Corps, posted two Comments that have terrific information on what we can do now to defang the ISL theory through legislative action.
Alice also included information on contacting your representatives to pass the We the People Act, H.R. 5746, which will go a long way to protecting the right of every American to vote in fair elections. I have re-posted Alice’s comments and pinned them to the top of the Comments section in this newsletter. Thanks to Alice for the information and call to action.
I will be in touch over the weekend! Talk to you soon!
Here is the note from Alice Schaffer Smith regarding actions steps you can take:
URGENT CALL TO ACTION: contact Senator Schumer's, Murkowski, Romney, Sinema, Collins, Manchin and Portman's offices and reach their chief of staff or legislative staff and explain why Moore v Harper will destroy our Constitution and it is imperative for them to cross the aisle and stand up for WE, THE PEOPLE this week. H.R. 5746 won't hurt any Republicans and gives every American the same rights.
Phone numbers are available on each state's page or on your senator's website
Senators Suite & Telephone List (PDF)
A U.S. Capitol Switchboard operator can also connect you directly with the Senate office. (202) 224-3121
PRIMO LEVI summed it up: "If not now, when?"
Fight for your democracy. Don't just LIKE what Robert, Heather Cox or I or others write.
Thank you
Here is the email from Alice Schaffer Smith with background information on H.R. 5746:
Moore v Harper sets the State Legislature of North Carolina against its own State Supreme Court and its Constitution on the ridiculous proposition that Article 1.4 of the US Constitution grants exclusive jurisdiction to State Legislatures to the exclusion of its own State Constitution or its Supreme Court when Congress has failed to act under Article 1.4 to determine times, places and manner. of elections.
Listening to the Supreme Court hearing made me realize how imperative it is to pass H.R. 5746 this week in the U.S Senate to remove any chance that our Justices would revoke 233 years of precedence on this bizarre interpretation of the meaning of the election clause and grant essentially unlimited power to State Legislatures to call the shots on its own elections.
So here is a teach in for those who haven't followed HR 5746 or how the Supreme Court has been stripping Congress of its authority granted under Article 1.4, AND the 14th, 15th, 19th and other voting rights amendments and deferring to State Legislatures since 2010 under the Roberts' Court:
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In January the Senators filibustered H.R. 5746, The Freedom to Vote: John R. Lewis Voting Rights Act, thus preventing the Senate from exercising its authority under Article 1.4 to debate and then vote on a uniform federal election law. Under a rule of the Senate and not under the Constitution, a super majority of 60 votes is needed for the Senate to pass most legislation, even though the Congress is empowered to pass legislation under Article 1.4, the 14th and 15th Amendments without reference to any super majority filibuster rule. Thus California with 39m population has 2 Senators and the 5 least populous states have a total of 3.5m voters and 10 Senators plus the filibuster.
When it comes to passing voting rights, isn’t it ironic that voting rights advocates are asking the Senate to pass a uniform election code for voting to ensure 1 person 1 vote and every vote counted, yet the Senate itself does not have 1 Senator 1 vote.
Next: consider the role of the Supreme Court in ruling against Congress’ exercise of its powers under Articles 1.4, the 14th and 15th and subsequent voting right Amendments.
The Supreme Court has stated that unless Congress enacts specific election laws, times, places and manner of voting shall be determined by individual state legislatures.
Congress has the power to set uniform national standards for times, places and manner of voting under the Constitution of the United States of America. Article 1.4 grants to each State Legislature the power to set the times, places and manner of holding elections for US Senators and Representatives, “but the Congress may at any time by law make or alter such regulations.....”
Congress enacted and then amended 8 times, the Voting Rights Act of 1965 so that: “No voting qualification or prerequisite to voting, or standard, practice, or procedure, shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color” which purposes were subsequently expanded to include discrimination based on national origin, disabilities, etc.
The VRA’s greatest early impact was in its pre-clearance requirement for Federal Court or Justice Department approval before jurisdictions that had historically discriminated could change voting rules, processes, or procedures. One result: By 1969, Mississippi’s Black voter registration rate increased to 59% from 6%.
Nonetheless the US Supreme Court has been gutting and continues to gut the Voting Rights Act of 1965:
● Citizens United v FEC (2010) removed Federal campaign restrictions on Corporations and Unions, unleashing unlimited and undisclosed (foreign) money into politics
● Shelby County v Holder (2013) held that the pre-clearance formula is unconstitutional. Impact: 1688 polling places closed in previously covered States; 30 million voters purged from voting rolls, restrictive voting laws such as strict voter ID laws enacted in at least 19 states:
● Rucho v Common Cause (2019) ruled that state laws permitting partisan (not racial) gerrymandering are “beyond the reach of the federal courts.”
● Brnovich v DNC (2021) upheld an Arizona law to stop people from collecting ballots to deliver to precincts, which disproportionately impacted indigenous peoples; and to stop counting ballots from people who voted in the wrong precinct.
● Northeast Ohio Coalition for the Homeless (NEOCH) v. Husted (2016): by not granting certiorari upheld Ohio’s perfection rule allowing insignificant errors on the outside envelope of a provisional ballot to disqualify the vote of a properly registered voter - one was a blind 84 year old voter prohibited from voting, clearly a denial of the right to vote in contravention of the rights of disabled voters to be able to vote.
Thus State Legislatures have gained significant power after the Supreme Court overruled federal oversight of State and Local jurisdictions enacted under Article 1.4 and the 14th and subsequent voting related Amendments.
In January the House passed H.R.5746 – a federal uniform set of laws to ensure inter alia:
● uniform laws setting times, places and manner of voting:
● paper ballots for all voters to ensure post-election audits and accuracy;
● preventing the horrific 3 hours in line to vote in Georgia just on Friday by reducing to a maximum of 30 minutes the waiting time in line to vote, early voting, no excuse vote by mail,
● franking of the vote-by-mail envelope,
● adequate funding to the States to implement the mandates of H.R. 5746,
● a national holiday for election day,
● nonpartisan independent redistricting commissions in every state,
● no foreign money in our elections through clean money provisions,
● the Native American Voting Rights Act and reinstating the preclearance provisions of the John R Lewis Act with defined standards thus ending the impacts of Shelby, Rucho, NEOCH and Brnovich.
In this October 2022 Term the US Supreme Court has taken up 2 significant voting rights cases which likely will further result in its evisceration of the Voting Rights Act of 1965 ("VRA") and grant even more power to state legislatures.
Moore v Harper : By June 2023 SCOTUS is likely to grant North Carolina’s state legislature (and other states) power under Article 1.4 to determine times place and manners of elections even if held unconstitutional under the terms of North Carolina’s State Constitution, making state legislatures superior to the oversight of their State Supreme Courts.
Merrill v Mulligan : The Court is likely to support Alabama’s position that racial consideration in redistricting is impermissible, notwithstanding that eliminating the impact of racial segregation is an underlying purpose of the VRA. Keep in mind that the Roberts’ Court had no problem finding political gerrymandering by state legislatures to be constitutional in Rucho because it is not up to the Supreme Court to question the political decisions of an equal branch of government.
H.R. 5746 will not be re-enacted by the new House of Representatives on January 2023.
To protect the right to vote it is imperative to end the filibuster of H.R. 5746 this week: debate and vote on the Freedom to Vote: John R Lewis Voting Rights Act.
Alice Schaffer Smith
Executive Director
National Voter Corps
850 Webster Street #520
Palo Alto, CA 94301
www.nationalvotercorps.org
a non profit project under the Social Good Fund