Outstanding Democratic candidates.

May 20, 2022

[Audio edition here]

          The primaries on Tuesday advanced several stand-out Democrats whose victories have been lost in the media’s focus on GOP-election deniers. The fact that Democratic primaries produced such strong candidates should give us confidence and determination heading into 2022. Does that mean we will win? No! But it means that we are doing the things necessary to position ourselves for victory. The outstanding Democratic candidates include:

• Josh Shapiro, who will be the Democratic nominee for Governor of Pennsylvania. Josh currently serves as Attorney General of Pennsylvania and previously served as a state representative and county commissioner. As Attorney General, Josh successfully defended the votes of all Pennsylvanians in the 2020 election. Josh will take on election-denier and seditionist Doug Mastriano in one of the most important races in the 2022 midterms. Check out Josh’s website and consider volunteering to get out the vote for Josh!

• John Fetterman, the Democratic nominee for US Senate for Pennsylvania. Fetterman currently serves as the Lieutenant Governor and is broadly popular among Pennsylvanians. Fetterman has the personal skills to connect with voters on both sides of the aisle and represents a clear opportunity for Democrats to flip a seat in the Senate. Fetterman will oppose either Dr. Oz or David McCormick depending on the outcome of the GOP primary, which will likely be decided by mail ballots! (Ah, the irony!) Check out Fetterman’s website and consider volunteering to help get out the vote for John!

• Cheri Beasley, the Democratic nominee for US Senate for North Carolina. Cheri is a trailblazing candidate who served as the Chief Justice of North Carolina’s Supreme Court. Like Fetterman, she has the ability to connect with voters on a personal level by speaking to their concerns while avoiding policy-speak. She will oppose GOP Rep. Ted Budd who is a gun range owner and election-denier backed by the anti-government PAC, Club for Growth. Cheri’s candidacy represents a second opportunity to flip a seat in the Senate. Check out her website and consider volunteering to help get out the vote for Cheri!

• Charles Booker, the Democratic nominee for US Senator for Kentucky. He has served in various state offices, including as a state representative in 2018. He is a long-shot candidate to unseat Senator Rand Paul, but his unlikely primary win as the first Black nominee for US Senator for Kentucky is impressive. Whether Booker wins or not, he represents a new generation of Democratic politicians in deep-red states. If Democrats are going to re-establish a meaningful presence in the South, it will start with candidates like Booker. Let’s hope he gives Rand Paul a real challenge in 2022. Check out his website or consider volunteering to help get out the vote for Booker. Remember, even if Booker doesn’t win, a strong turnout can help win other elections on the Kentucky ballot in the mid-terms. No effort is wasted.

Trump rages against Pennsylvania results as his candidate bombs in Georgia.

          The Trump-endorsed Senate candidate in the Pennsylvania primary, television personality Dr. Oz, will likely be forced to a re-count with David McCormick. As noted above, the GOP primary may be decided by mail-in or absentee ballots—which has caused Trump to claim that McCormick may cheat his way to victory by “finding” new ballots. See CNN, Trump taints Pennsylvania GOP Senate primary with fresh fraud lies. The claims of fraud may help Democrats with John Fetterman’s race against the fraud-tainted winner of the GOP primary. And let’s hope that Trump’s tiresome claims of fraud turn off persuadable independents in the race between Josh Shapiro and Doug Mastriano.

         In Georgia, Trump’s revenge candidate for governor, David Perdue, is trailing Trump nemesis Brian Kemp by 32 points! See Vanity Fair, Donald Trump’s Georgia Revenge Fantasy Isn’t Quite Panning Out. The Perdue debacle is a true test of Trump’s sway over the party. Trump twisted Perdue’s arm to get him to run against Kemp, so Perdue is the clearest example of a “Trump candidate” to date. But on Thursday, several outlets reported that Trump has “washed his hands” of Perdue. As you know, Trump doesn’t like losers, which is why Trump can’t admit that he lost in 2020.

Speaking of Pennsylvania . . . .

          Yesterday I wrote, “there would be no basis in law for Mastriano, the legislature, or the secretary of state to appoint an alternate slate of electors.” Professor Larry Tribe tweeted in response to my statement that “this wrongly assumes the midterms will leave the PA legislature and thus the state’s election laws intact!”

          Professor Tribe is right—the Pennsylvania legislature could change existing state law that allows voters to select presidential electors and my analysis assumed it would not. I don’t think that such a change is likely because it would disenfranchise 8.7 million voters in Pennsylvania in presidential elections. I recognize that others might disagree with my judgment, but we have at least one recent example for reference. A radical GOP state legislator in Arizona proposed a bill that would have allowed the legislature to override the popular vote, but the bill quickly died in the face of public pushback. See NBC News, Arizona GOP lawmaker introduces bill to give Legislature power to toss out election results.

          Of course, there are many ways that the Pennsylvania legislature could attempt to override the popular vote for electors. Most would be unconstitutional because of the requirement that all states select electors on a uniform, prescribed date across the nation. That limits the opportunity for second-guessing by partisan legislatures—although it doesn’t entirely preclude legislatures from intervening after the fact (e.g., a “failed election” due to a natural disaster). But to override a popular vote, Pennsylvania’s legislature would need to amend its existing laws. And it would need to do so before its citizens vote for president in 2024, not after.

          I won’t argue over judgments about the likelihood of possible legislative changes by Pennsylvania because it doesn’t change our goal in this instance: We must defeat Mastriano in 2022 to avoid a potential constitutional crisis in 2024.

          I will close this subject by saying that the permutations and combinations are so complex we would need a supercomputer to game-out every possible way for Mastriano to interfere with the Constitution. The above analysis isn’t complete—it can’t be. My focus yesterday and today is on what Pennsylvania law says and how that must be taken into account in discussing possible outcomes.

Conservative Republican judges continue effort to dismantle the federal government.

          Conservative judges appointed by Trump and other Republican presidents continue to wage war on the federal government. Today, a three-judge panel of the 5th Circuit ruled that the SEC’s use of administrative law judges was unconstitutional. See Ian Millhiser in Vox, Jarkesy v. SEC: A Fifth Circuit decision could throw the government into turmoil. The underlying case and legal theories are complex and arcane, so I highly recommend Millhiser’s discussion in Vox if you are interested in the details. I will focus on the decision’s practical effect if it is upheld.

          Many federal agencies and commissions use administrative law judges to hear evidence and make non-binding recommendations to the agency/commission. (The decisions of the agency/commission are subject to review in federal court.)  There are twice as many administrative law judges as federal judges, so this structure allows federal agencies/commissions to expedite the review and determination of public rights under federal law. Many people may be familiar with this system in the context of claims over Social Security benefits. The advantage is that such claims can be handled expeditiously in the first instance while preserving the claimant’s ultimate ability to have the matter heard in federal court.

          Here’s the point: if the decision stands, the federal courts will be overwhelmed with a caseload formerly handled by thousands of administrative law judges. Justice will grind to a halt, simple administrative determinations will take years, and important civil disputes will be placed on the back-burner indefinitely. To handle the new caseload, Congress would need to expand the federal judiciary two-fold. And that isn’t ever going to happen. This decision is intended to prevent federal agencies and commissions from performing the work delegated by Congress. Appointing smart, impartial judges is critical to preserving the rule of law—which is another reason why Democrats must continue to control the presidency and the Senate.

The baby formula debacle.

          There is plenty of blame to spread around in the baby formula shortage. A major domestic manufacturer (Abbott) was shut down even though the particular strain of bacteria that led to several infant deaths was never found inside the Abbott manufacturing facility. (The WSJ has the most detailed explanation of the underlying events, but I can’t link to it because I canceled my subscription to the WSJ in protest.) Even if the shut-down was appropriate in the first instance, the long delay in restarting the plant is inexcusable. Someone at the FDA failed to appreciate the real-world consequences of cutting off a significant source of a vital nutrition source for infants.

          Which brings us to today. President Biden and Congress are working to ease the domestic shortage of baby formula by giving the FDA funds to expedite a solution. Nearly every Republican voted against that bill. See WaPo, House GOP leaders, other Republicans vote against bill to ease baby formula shortage. But Republicans voted in favor of another bill allowing foreign supplies into the US (which are not required to meet FDA standards). The combined effect of the two votes is to impede a solution in the US while introducing unapproved baby formula into the domestic supply chain.

          Some proponents of foreign-sourced formula contend that it is healthier than the US formula because it generally does not include certain types of sugars. While that may be true, no one in the US has inspected the foreign facilities for cleanliness and production standards. Is that what we want for infants who depend on bacteria-free formula? That is the solution Republicans prefer—because it suits their partisan goals. Shame!

Concluding Thoughts.

          I have reviewed recent polling that suggests the issue of abortion is rising as a motivating factor in voter turnout. Analysts say those same polls show that the issue of abortion will not affect the midterms. As before, I think these polls are premature and may miss the point entirely. They are premature because nearly two dozen states will completely ban abortion when the final decision is issued. That hasn’t happened yet, so asking voters today about abortion does not capture voter reaction to legislation after it goes into effect in June or July 2022.

          Second, the real question is how abortion will affect the midterms in swing states, particularly purple states with Republican legislatures. Those swing states (like Pennsylvania, Arizona, and Michigan) are poised to ban abortion a few months ahead of the midterms (or have Republican candidates who say they will do so immediately after the election.) In many states, the divide over abortion is baked into the electorate and isn’t likely to change the outcome (e.g., California vs. Mississippi). But in states with narrowly divided electorates, a difference of even a few points could result in a substantial swing in election results.

          Here’s my point: most polling to date has been conducted on a national basis (not in swing states), with commentators extrapolating those results to the congressional midterms. Don’t let misleading headlines discourage you. Americans overwhelmingly support maintaining the rights first recognized in Roe v. Wade, and the impending decision will increase Democratic turnout across the nation—and in swing states. Even though increased turnout may not be enough to flip gerrymandered congressional races in every state, it may have an outsized effect in congressional districts in swing states and will also affect statewide races in those states—like those of John Fetterman, Josh Shapiro, Cheri Beasley, and Charles Booker!

So, do not relent in your efforts to defend a woman’s right to control her reproductive choices (and related privacy rights like marriage, contraception, and adoption). We are on the right side of history on these issues and must use them to rally voters to turn out in historic numbers. We can do that!

          Have a good weekend, everyone! Talk to you Monday!