De Civitate

Well, this will be a short-lived post, but the Joint Session to Count the Electors has started. I was going to watch this anyway, because I did so much work explaining how it might work in the course of my legal horror story, “And The War Came.” But now the President’s attempts to steal the election from President-Elect Biden have made this thing quite a big deal, so lots of folks are interested.

As always, the best place to watch Congressional floor action is on C-SPAN: https://www.c-span.org/video/?507663-1/joint-session-congress-counting-electoral-college-ballots

An excellent overview of the process from the Congressional Research Service is here: https://fas.org/sgp/crs/misc/RL32717.pdf

The session started one minute ago. Please enjoy! Or dread. Either way.

UPDATE 12:13 PM:

The Joint Session to Count the Electoral Votes has opened. First thing that happens is Pelosi clears most of the floor for social distancing reasons. Someone (I missed who) raises a point of parliamentary inquiry asking how they can raise points of parliamentary inquiry and points of order if they’re stuck in the gallery. Pence gavels him down for being out of order. This is basically right and indirectly answers the question: members generally *cannot* raise points of parliamentary inquiry or points of order during this session. There is a possible exception. It is believed that a WRITTEN point of order signed by a Representative and a Senator can be considered, but only through a burdensome process. However, this has never been done.

UPDATE 12:18 PM:

And it has begun: the electoral votes from Arizona for Biden have received a formal objection. This is the third formal objection since the modern law was imposed in 1887. (The other two were in 1969 and 2005.) The objection — written and signed by both a Representative and a Senator — contends that the electoral votes of Arizona were not “regularly given”. Correctly, it does not go into detail. (That’s saved for the debate floor.)

The Joint Session is dissolved temporarily. Both houses will now debate the objection (separately, in their own chambers) for one hour two hours (sorry, brain fart). The Arizona electors will be rejected only if BOTH houses agree to reject them.

Note that, while Democrats won control of the Senate last night, their winners have not yet taken office, so Republicans still have narrow control of the Senate. This does not really matter, since there’s no way this objection will win support from moderates, textualists, pro-Constitution members of the Senate. Still worth mentioning.

UPDATE: 1:28 PM:

After a predictable debate along predictable lines, violence has disrupted the electoral count. Facts are unclear, but both houses are now in recess, reportedly due to protestors breaching the building. Rumor that Vice President Pence has been evacuated.

Needless to say, as in the case of protestors destroying important symbols like statues, protesters trying to derail our basic republican institutions should be met by all necessary force, including (if necessary) lethal force.

UPDATE 2:35 PM:

Look, if you’re still following my blog at this point, stop. It’s chaos. There’s an ongoing riot, capitol police has lost control, the White House is reportedly refusing to deploy National Guard (which seems like it meets the legal definition of seditious conspiracy? but maybe we’ll sort that out later), and this blog is not the place to get your news. Feel free to make use of one of my favorite Twitter lists for tracking current political events, CheckmarkPolitics.

If you look at the Minnesota Department of Health’s hospital capacity stats today, they don’t look that bad.

There’s an even more soothing version of this data circulating on certain Minnesota-centric Facebook groups:

Ordinary ICU bed usage (in non-covid times) is like 850, and we’re at 1150… but we have 1450 beds and an extra 400 available for a surge. So we’re okay, right? We’re pushing up toward capacity but still have a looooooooong way to go before we get there. Right?

Not right. I’ve been posting these MDH hospital capacity stats regularly for months in my weather reports, but, over the past two weeks, I started to hear various kinds of pushback from various friends (or friends of friends) who work in hospitals. They’re telling me that, sure, the beds exist, MDH is right enough about that… but we’re nearly out of medical staff.

I wrote this on Facebook yesterday (Wednesday) at 10:06 PM. If anything, it’s even more true now than it was then, so I figured it worth posting here as well.

You can look at each state that’s out and say, “Hey, Trump has a chance. He could get lucky.” So why have I been saying that the race as a whole isn’t a tossup? Let’s break it down.

There’s two states where Trump is currently favored: North Carolina and Georgia.

There’s three states where Biden is favored: Pennsylvania, Arizona, and Nevada.

To win, Trump has to hold the states where he’s favored, then get lucky in Pennsylvania plus one other state. So he has to get a little lucky twice, then VERY lucky twice. It’s easy to imagine Trump getting VERY lucky once, but he has to roll lucky four times in a row — and his most important state, Pennsylvania, looks like his toughest right now.

Meanwhile…

To win, Biden has to either hold Pennsylvania* OR the other two states where he’s favored… and nothing else. So he needs to get a little lucky once, and that’s it. If he gets unlucky in PA (or loses a Pennsylvania lawsuit that sways the vote total), then Biden has a fallback: he needs to get a little lucky twice in the Southwest. But he has a fallback for that, too: he can win by getting VERY lucky once and winning one of the Southeast states in play. Trump has no fallbacks.

Trump’s BEST path forward is to hold Georgia and North Carolina, flip Arizona, and then win a lawsuit in Pennsylvania that somehow invalidates what looks like a fairly comfortable Biden margin. But… urk. Every path I see for Trump is as weird and convoluted and unlikely as the paths that panicked network anchors started drawing on the walls at 12:30 AM on Election Night 2016, by which time I was openly mocking them.

That’s why I think it’s over.

I’m going to lose the $0.60 I bet on an official race call coming before midnight Wednesday. There will be no call tonight [Wednesday], because networks are being appropriately cautious. It might be another week. In the meantime, I honestly don’t know whether Arizona will stay blue (it really might flip! and Georgia might just as easily flip to blue!).

Nevertheless, one way or another, and for whatever it’s worth, I project that Joseph Biden is President-Elect of the United States.

WHAT ABOUT FRAUD?

I trust the Trump campaign will take all evidence of fraud to court, and I trust the court system (now largely staffed, at the federal level, by sound judges) to sort it out. I do not think Trump has much hope here, given the margins, but I am open to being wrong. We do need to count all the valid votes and discount all the invalid ones, and I support that process.

My projection of President-Elect Biden does not take into account the possibility of rampant voter fraud being proved and removed. So that’s a path for Trump.

But this would require a fraud conspiracy on a scale not even seriously alleged in American politics since the 1960 presidential election. (And, even there, it’s pretty unclear whether the alleged fraud actually changed the result of the election.)

*NOTE: Yes, Pennsylvania still shows Trump in the lead, but that lead is down to less than 2 points. It was 14 points this morning. Trump is very much on track to lose PA and would have to get quite lucky not to. That’s why I said yesterday morning to ignore everything PA did on Election Night.