Pivot Counties

It’s Election Day eve and our podcast hosts have their presidential race forecasting models at ...

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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.

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  1. Gabriel Salas

    Hey, quick legal question. What happens if the USPS held up ballots in battleground states postmarked well before the election day (willful negligence or otherwise) in numbers largely greater than the election margin? I'm looking at GA and PA, which seems likely to end within 10k votes.

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  2. ROBERT

    Ok, I may be late to the party here, but Sarah, regarding your hulk anger, to find find the appropriate phrase let's go all the way back to the 1970s TV series. Yes, long before you were born. But the appropriate words are: "Don't make me angry. You won't like me when I'm angry." This should be said calmly.
    Both of you projecting a Biden win in Iowa? I'm from Arkansas and down here we have a response to such statements - David surely you will understand my meaning: "That's big talk." This is also to be said calmly, but knowingly.
    I'll have my cocktail ready to go for Dispatch Live tonight!!

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    Tara Joyce

    Sarah, David, just an FYI, Lenoir County, NC is pronounced like Lenore.

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      Rick Henderson

      Also home of Vivian Howard, star of the PBS series “A Chef’s Life,” based in “Lenore” County 😉

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    Angie

    Informative and fun, as always
    I am not one to make predictions and frankly, those electoral maps make me crazy...lol
    So, generically my hope/prediction is a Biden win and a narrow Senate majority for Dems

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    RND

    I agree that, like all things, the "there are rules" argument can be overdone, but I think you both gave short shrift to the question of who decides when these things are largely matters of degree. Lots of states require mailed ballots to be received by election day. Some give a few days grace period with an election day post mark, some give more. I can see good arguments for all and all are Constitutional. What causes the friction is a judge or judges making up a new rule as election day approaches. I think there are good arguments to wait a few days after election day to receive mailed ballots, but if a legislature balanced finality as a greater good (or maybe even had an extended mail in period of 30 days pre election as a trade off for the finality during legislative bargaining) I don't think a judge gets to do her own balancing and say "well, I balance it differently, wait 3 days when the statute says election day is the deadline" (especially when multiple states have an election day deadline already and presumably not violating the Constitution in so doing) Its different than other rights because there is no "right to vote" clause or amendment to interpret. State voting laws could run afoul of the equal protection clause, or statutes like the ADA or the VRA, but I don't think "didn't get off my ass and use any of the myriad early voting mechanisms most states have these days and chose to wait until the last day ro request a ballot and then mailed it the day before the election and hoped" is a protected class for equal protection purposes and "feeling bad" for the voter isn't a legal principle. This has real world consequences. If the PA election is ever swung by post election day ballots received without a post mark (which must be counted under the new judge made rule under the PA Constitution I think), it will be bad, because "rules are rules" is a difficult argument when the "rule" was made up by a judge or judges a few weeks ago. The public would go crazy.

    That said, the TX case was a joke, only exceeded in awfulness by fear mongers who should know better.

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    1. Aaron Robinson

      Firmly agree. I get David's point about the "rules are rules" argument, but I don't know that his analogy to other Constitutional Rights is the best. What bothers me most about these lawsuits is the timing. We know today, for certain, there will be an election in Nov of 2024. I understand all sorts of things will happen between now and then, but the idea that whatever process is place can be challenged days or weeks before an election is a little much for me. I think many of our other rights get trampled all the time (see David's rants on qualified immunity, gun laws in blue states, speech codes he ligated with FIRE, etc.) I don't doubt legislatures can write bad laws or fail to fix foreseeable problems. I just don't see the argument as "the legislature said so, so it's the law". I think it's closer to, "there is a time to fix this problem, and it's not right before an election where you think the current rule will go against your candidate."

      Voting differs in another way, too, in that the perception of unfairness is just as bad as actual unfairness. Even if things are 100% above board in every state, last minute litigation can give the perception this is not the case, thereby undermining the process in a way that changing rules about free speech or gun laws (Ammends. 1&2 that David mentions) can't. Because we vote at set times, and there are other dates that have to be met (i.e. meeting of the electoral college and inauguration day), changing rules or standards at the last minute causes problems that say, a bad speech code wouldn't. It stinks that your rights are curtailed, but the time it would take to get a code overturned doesn't run up against a deadline in the same way.

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    RandyMc

    David, there are more constitutional amendments than #1 & #2 but, as has been pointed out before, none that enjoin individual law abiding citizens lives more frequently than the first two. If the Marines bivouac in our front yards and the officers want to take over the houses in our cul-de-sac for their meetings and relaxation, we'll hear more about #3.

    #4-#8 are more litigated than the first two amendments, so they do get their due.

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    hajaXavier

    Hmm. 🤔 How does one remind our gracious podcast host (David) that the president of the United States is NOT the leader of the free world? He or she is simply the president of the US, nothing more, nothing less.

    I understand the history of the term, but even during the height of the cold war a Canadian or an Australian i’m guessing would not agree that the US president was the leader of the free world (their leader?!). Post Cold War it seems even more ridiculous.

    OK, back to my windmill (and more important things, like thanking our gracious hosts for explaining the Houston ballot situation). 🤣🤣

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      Adam Bridge

      mmmm....I disagree. Leading the free world doesn't mean making decisions for a country but leading the response against the Soviet Union and the Eastern Block. And the US was definitely the leader within NATO (I saw without ever having had anything to do with NATO save pulling into a couple of NATO naval bases in the Med back in the mid-70s)

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        hajaXavier

        Ok...I’ll soften my disagreement in a Cold War environment, but just a little. Even at the height of the Cold War the world was bigger than NATA/Soviet Union iron curtain (I wasn’t American in the 80’s, nor living in a NATA country or behind the iron curtain). But my point remains in a post Cold War environment. Does a 25 year old even know what the term means? 🤣🤣

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    Old guy named Bill (OGNB)

    Enjoyed the podcast as always, and I appreciated your look at key counties in swing states. I look forward to reading The Sweep for further info and analysis.

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      Old guy named Bill (OGNB)

      One more thing related to a recurring Advisory Opinions theme - I feel like we're all spectators in a giant curling match watching the stones slide to a stop slowly, inch-by-agonizing-inch.

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    Kevin C. Smith

    I absolutely love that during Sarah's high-level, passionate discussion about Texas, David drops some knowledge about l33tspeak. And David is the ol' guy! ha! Love it.

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    J. Eric

    Great episode as usual. Although I tend to agree with Plato on democracy and decry giving the hoopleheads much voice, I paradoxically think mandatory voting could be a useful in eliminating voter suppression. Curious on your thoughts

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