Welcome to Day 2 of Slate’s election live blog. As of Wednesday morning, here is where things stand in the presidential election, the state of play in key Senate races, and a look at what comes next.
The Electoral College Count
Biden 264 (Arizona 11, California 55, Colorado 9, Connecticut 7, Delaware 3, District of Columbia 3, Hawaii 4, Illinois 20, Maine 2, Maine (1) 1, Maryland 10, Massachusetts 11, Michigan 16, Minnesota 10, Nebraska (2) 1, New Hampshire 4, New Jersey 14, New Mexico 5, New York 29, Oregon 7, Rhode Island 4, Vermont 3, Virginia 13, Washington 12, Wisconsin 10) vs. Trump 214 (Alabama 9, Arkansas 6, Florida 29, Idaho 4, Indiana 11, Iowa 6, Kansas 6, Kentucky 8, Louisiana 8, Maine (2) 1, Mississippi 6, Missouri 10, Montana 3, Nebraska 2, Nebraska (1) 1, Nebraska (3) 1, North Dakota 3, Ohio 18, Oklahoma 7, South Carolina 9, South Dakota 3, Tennessee 11, Texas 38, Utah 6, West Virginia 5, Wyoming 3). And 60 outstanding. Alaska 3, Georgia 16, Nevada 6, North Carolina 15, Pennsylvania 20 (Calls by the Associated Press.)
10:11 p.m.: Gary Peters Holds Senate Seat as Michigan Democrats Have Strong Second-Day Returns
With nearly all votes tallied, incumbent Democratic Michigan Sen. Gary Peters has won a second term, narrowly fending off a tough challenge from his opponent, Republican candidate John James.
Peters had become a keen target for Republicans eager to boost their Senate majority by flipping a from a state they’d won in 2016. In early counts during Election Day, James had appeared to have a solid advantage over Peters. But after millions more absentee ballots were counted on Wednesday, the AP called the race for Peters with 98 percent of precincts reporting and the incumbent ahead by only 1 percentage point, a difference of about 60,000 votes.
This was John James’ second Senate race, and loss. Even though he has no former political experience, his résumé has made him a budding Republican star—he did combat duty as a pilot during the Iraq war and ran a family supply-chain business in Metro Detroit before entering politics. James, whose victory would have made him Michigan’s first Black senator, has described himself as “a pro-life, pro-second amendment, pro-business conservative,” and a staunch supporter of traditional GOP values. In the 2018 Republican Senate primary, he earned Donald Trump’s endorsement, even meeting with the president in the White House. James went on to challenge Michigan’s senior senator, Debbie Stabenow, losing by 6 points in what was then the closest Senate election in the state since 2000. His relative success and continued ties to the president convinced the GOP that he’d be a key candidate to take over Gary Peters’ Senate seat.
Peters is a relatively inconspicuous figure in national politics. He was elected to the Senate in 2014, the same year his party lost control of the chamber for what now appears to be the unforeseeable future. Despite a notable legislative record and a long career in Michigan politics—having served previously as state senator, lottery commissioner, and congressional representative—his name recognition within his own state has often been wanting, making his reelection a tougher prospect than expected. Most advance polls showed Peters narrowly beating James—usually by 6 points or more—but the Republican candidate held his own, racking up prominent endorsements from state newspapers.
The 2020 Senate race was the most expensive run of its kind in the state’s history, with the candidates collectively raising about $71 million—about double the amount raised in the 2018 campaign. With Peters pulling it off, Michigan will have Democratic representation in the Senate until at least 2024.
The Peters victory is of a piece with other Michigan news favorable to Democrats. Despite an attempted legal challenge by Trump and a ground-level effort at a Brooks Brothers Riot 2.0, Joe Biden won the state by 2 points, bolstering his Electoral College count. And, as my colleague Mark Joseph Stern wrote, the Michigan Supreme Court—having previously struck down Gov. Gretchen Whitmer’s COVID executive orders, among other reactionary rulings—now has a majority of justices nominated by Democrats.
5:47 p.m.: Fox News Aired—and Cut Off—a Ridiculous Rudy Giuliani Press Conference
As mail-in ballots in swing states across the country are being counted and Joe Biden’s path to 270 electoral votes seems increasingly assured, the Trump campaign, as many people predicted, is growing desperate. Around 4:35 p.m.—roughly 10 minutes before Fox News’ decision desk called Michigan for Biden, thus putting the former vice president’s electoral vote total at 264 by the network’s count—Fox cut to a press conference in Philadelphia featuring three-time “America’s Most Embarrassing Ex-Mayor” winner Rudy Giuliani. Trump’s personal lawyer announced that the president’s campaign will file a lawsuit in Pennsylvania, alleging ballot fraud in Philadelphia. (The network had to cut off Rudy Giuliani midway to share the Michigan news.)
The thrust of Giuliani’s argument, to the extent that is an actual argument instead of just, you know, another ploy, is that Republicans were unable to observe the mail-in ballots being counted. “Not a single Republican has been able to look at any one of these mail ballots. They could be from Mars as far as we’re concerned,” Giuliani said. “Or they could be from the Democratic National Committee. Joe Biden could have voted 50 times, as far as we know. Or 5,000 times!” I’m not sure how the man whom the right has derided as “Sleepy Joe” could have mustered the energy to vote for himself 5,000 times, but Giuliani seemed pretty sure!
Next came former Florida Attorney General Pam Bondi, who while in office declined to join a fraud lawsuit against Trump University after receiving a $25,000 campaign donation from the Trump Foundation. She complained that Republican election observers were given inconsistent guidance on whether they were allowed to use binoculars in the ballot-counting room, or something. After Bondi came one-time Trump campaign manager Corey Lewandowski, who was last seen on Fox & Friends this morning disparaging the work of the Fox News decision desk. He snarled that “we have now officially declared the state of Pennsylvania ‘Trump Country.’ ” Man, it’s gonna be a pain in the butt to change all the road signs and license plates!
The press conference concluded with a special, secret guest. Giuliani introduced a poll worker named “Jeremy” who, the ex-mayor claimed, had been “obstructed in a horrible way by the crooked Democrat machine of Philadelphia.” Jeremy claimed he had been at the pre-canvass all day Tuesday and Wednesday and that he was not in a position to watch any of what he estimated as 125,000 ballots being counted.
“There’s no way for us to meaningfully observe the process from where they have us,” said Jeremy.
“[The 125,000 ballots] should be deducted from the count,” said Giuliani.
Unless he has an identical twin who is also named “Jeremy,” this Jeremy appears to be a Pennsylvania attorney named Jeremy Mercer, whose biography lists him as a member of the conservative Federalist Society. According to the website of the Federal Election Commission, Mercer made six separate donations in September and October 2020 to Donald J. Trump for President, Inc. Not exactly a disinterested observer here!
Anyway, Fox host Neil Cavuto, for one, did not seem particularly convinced by this particularly unconvincing case. “Um, is it your sense that this is just delaying the inevitable? I mean, what do you hear, talking to insiders? Do they have a legal shot at this?” he asked guest Francesca Chambers of McClatchy, directly after Fox cut away from the presser.
“Today, Neil, it’s been a little mixed,” Chambers said, which I interpreted to mean as no one really has any idea what is going to happen. We can expect things to stay mixed for the foreseeable future.
5:17 p.m.: Biden Speaks: “When the Count Is Finished, We Believe We Will Be the Winners”
Lawsuits to stop counting ballots in Pennsylvania and Michigan. Trump supporters protesting the count in Michigan. The Trump campaign dispatching family members, campaign staff, and whatever Rudy Giuliani is to falsely claim that Democrats are trying to steal the election. The campaign staff declaring victory in Pennsylvania when it has not won a victory in Pennsylvania. Donald Trump tweeting this crap:
This is a gut-check moment for the country. All of the commotion you’re seeing whipped up Wednesday afternoon is a recognition from Donald Trump and his campaign that they may be a day or so’s worth of ballot counting in Pennsylvania away from losing the presidency. Even if they came back in Arizona and Nevada, it wouldn’t matter. This is the big one.
It was under these circumstances that Joe Biden spoke Wednesday afternoon from Wilmington, Delaware, to challenge the president’s baseless narrative of theft.
“Now, after a long night of counting, it’s clear that we’re winning enough states to reach 270 electoral votes needed to win the presidency,” Biden said, onstage with Kamala Harris. “I’m not here to declare that we’ve won. But I am here to report that when the count is finished, we believe we will be the winners.”
He noted that all of Wisconsin had been counted and Biden declared the winner. His lead in Michigan was even greater than in Wisconsin and growing as final ballots came in Wednesday afternoon. He felt “very good” about Pennsylvania, with most of the remaining vote coming from the mail-in votes of cities.
“Only three presidential campaigns in the past century have defeated an incumbent president,” Biden said. “When it’s finished, God willing, we’ll be the fourth.”
Wednesday afternoon into Thursday will be an acutely nasty final phase of this race, as Trump uses every lever available—and there aren’t many—to prevent Biden from reaching 270 electoral votes. Biden’s speech was as much about setting a message of unity for the aftermath—when Trump’s most fervent supporters will surely follow the president’s lead in saying the race was stolen—as it was about expressing confidence that he would win and preventing Trump from muddying the facts.
“This has been a difficult campaign, but it’s been a more difficult time for our country,” Biden said. “We’ve had hard campaigns before. We’ve faced hard times before. So once this election is finalized and behind us, it will be time for us to do what we’ve always done as Americans: to put the harsh rhetoric of the campaign behind us. To lower the temperature. To see each other again, to listen to one another, to hear each other again, to respect and care for one another.”
He added, for good measure, that he didn’t expect this to be easy.
“I’m not naïve.”
3:57 p.m.: Black Voters Were Right
Thanks to the pragmatism of Black voters, former Vice President Joe Biden appears positioned to win the general election over Donald Trump. Earlier this year, Black voters in South Carolina catapulted Biden into the Democratic nomination—despite signs that the policy positions of other candidates were equally, if not more, appealing. But when the choice is between Biden and an administration actively dismantling civil rights, Black voters went with the candidate whose policies wouldn’t make anything worse and who could win over enough white voters to beat Trump.
2:47 p.m.: Democrats Flipped the Michigan Supreme Court
Democrats flipped the Michigan Supreme Court on Tuesday when Elizabeth Welch won the seat of a retiring Republican justice. Chief Justice Bridget McCormack, a Democrat, also won her reelection race. McCormack and Welch’s victories create a 4–3 progressive majority on the Michigan Supreme Court, ending conservatives’ grasp on the state judiciary.
The Michigan Supreme Court rose to notoriety in October when it struck down Democratic Gov. Gretchen Whitmer’s COVID-19 executive orders. On a party-line vote, the court’s four Republican justices struck down a law granting Whitmer emergency powers to protect public health. In addition to invalidating the governor’s previous orders, the majority barred Whitmer from issuing new rules to stop the spread of the pandemic.
This same bloc refused to consider extending the deadline for absentee ballots that are mailed on Election Day but arrive shortly thereafter. As a result, the many ballots that reach election officials within the next few days cannot be counted, even if they were simply delayed by the Postal Service. The new liberal majority seems much more likely to safeguard voting rights and uphold Whitmer’s efforts to combat the pandemic.
But Democrats were not so fortunate in North Carolina, another state with closely watched Supreme Court races. Although ballots are still coming in, all three Democratic justices up for reelection are narrowly losing to their Republican challengers. (That includes Cheri Beasley, the first Black woman to serve as chief justice in the state.) If these results hold, the North Carolina Supreme Court’s liberal majority will shrink down to 4–3.
State supreme courts are especially important in light of Donald Trump’s capture of the federal judiciary. State constitutions guarantee rights independently from the U.S. Constitution, and federal courts have limited ability to interfere with a state judiciary’s interpretation of its own state’s laws. In recent weeks, four conservative Supreme Court justices have tried to limit state courts’ ability to protect voting rights. But on other controversial issues—including abortion, LGBTQ equality, and environmental regulations—state courts have broad leeway to swing left even as SCOTUS veers right.
—Mark Joseph Stern
12:11 p.m.: It’s Unlikely Trump Will Be Able to Sue His Way to Victory
This post was originally published on Richard Hasen’s Election Law Blog.
I’ve been saying consistently that the only way the 2020 presidential election ends up being decided by the courts is if there is a dispute in a state that is central to an Electoral College victory and the dispute in that state is so close (or there is such a massive failure in the election) that the election is within the margin of litigation.
As of this moment (though things can change) it does not appear that either condition will be met. It does not seem that Pennsylvania will be crucial to a Biden Electoral College victory and so any litigation over ballots there would not matter.
Even if it came down to Pennsylvania, it would have to be so close that there would be something to litigate over. If it is tens of thousands of votes separating the candidates (as it is currently in the Michigan totals) it is virtually impossible that a recount or litigation could change an outcome.
Of course, if it does come down to a state like Pennsylvania and it comes down to ballots arriving between Nov. 3 and Nov. 6, the Republicans can go back to the Supreme Court in an attempt to get those thrown out. For reasons I’ve explained, the reliance interest of the voters makes this very unlikely (and the Supreme Court passed up two chances to act on this).
The other lawsuits in Pennsylvania don’t seem to present much hope for flipping a lot of votes: They involve what appears to be a relatively small number of provisional ballots.
So could the election be litigated to a conclusion? Sure. But it’s not likely unless there is significant tightening in both the Electoral College projections and the absolute margin in a key state.
—Richard L. Hasen
11:42 a.m.: Fox & Friends Got a Whole Extra Hour (to Complain About Liberals)
On Wednesday morning, Fox News gave viewers a surprise treat: an extra hour of Fox & Friends! Despite the insistence of the show’s biggest fan, there was no Trump victory to celebrate. So the friends filled their time the way they always do—by welcoming a long string of untrustworthy guests and blaming the left for America’s ills. Over the course of four big hours, the friends and their guests:
• Mocked CNN and pollsters for getting their preelection projections so wrong, especially in Florida.
• Speculated that fears of “cancel culture” may have stopped respondents from being honest with pollsters.
• Did at least four live hits from the Pancake Place in Green Bay, Wisconsin.
• Corey Lewandowski came on air to announce that Fox decision desk director Arnon Mishkin was wrong to not have already called Michigan, Georgia, Pennsylvania, and North Carolina for Trump.
• Brian Kilmeade criticized protesters who took to the streets of America last night. (“What are they protesting?” scoffed Kilmeade.)
• “Folksy Mike” Huckabee noted that polling “is now as obsolete as an eight-track tape and worthless as a milk bucket under a bull.”
• Candace Owens blamed the media for poisoning the public discourse.
• Newt Gingrich said that “you cannot as a conservative look at this and not feel that the Democrats have done all they could to steal the presidency and that the legal fight the president’s going to wage is exactly right.”
• Ben Domenech from the Federalist said that it was insulting for the media to “ignore the opinions of millions and millions of Americans.”
• Podcaster Dave Rubin, promoting his new book, announced that “we really are in a war on reality at this point.”
Meet the new war, same as the old war. This episode of Fox & Friends was extremely similar to every other episode of Fox & Friends, with the same guests striking the same blows against the same old targets. As I noted at the end of my recent piece on Rush Limbaugh, the right-wing media will never change its tactics. The news of the day might change—the president might change!—but on Fox News, it will always be the same old grievance shtick.
9:30 a.m.: Biden’s Prospects Brighten Overnight, Giving Him Multiple Paths to the Presidency
If Tuesday night felt like a panic attack, by Wednesday morning the state of play had brightened enough for Joe Biden to downgrade the mood to existential crisis. By 9 a.m. the morning after, Biden had a roughly 3 million vote lead over President Donald Trump in the popular vote, which roughly works out to a 2-point advantage. That is obviously not how we elect presidents in the U.S., but it’s worth noting that a majority of Americans will almost surely vote for Joe Biden whether or not he becomes president.
In the real world of the Electoral College, things are messier. With most states reverting to their 2016 form on Election Day, the map suddenly got a lot smaller for Biden on Tuesday evening—with aspirational Democratic states like Florida, Iowa, and Texas all going solidly for Trump—but there are still a number of paths to victory. Most of the poll and probability bros still put Biden as the probable winner. That’s because the universe of states that will decide the election now comes down to: Nevada (6), Georgia (16), North Carolina (15), Wisconsin (10), Michigan (16), and Pennsylvania (20). Arizona is very close, but the Associated Press has called it for Biden, making it the only 2016 to flip so far.
With those states still being counted and decided, Biden currently has 238 electoral votes to Trump’s 213. That means Biden needs 32 electoral votes to win the presidency.
The most likely pickups are Nevada, a state Hillary Clinton won by a couple of points in 2016, but where Biden currently holds a lead under a percentage point. Wisconsin and Michigan are both looking increasingly good for the Biden camp. Michigan, after spending hours overnight in the red ledger, flipped blue Wednesday morning, as Biden pulled ahead on the back of mail-in vote totals coming in in metro areas. In Wisconsin, the numbers are trending in the same direction with late-count votes getting added.
Those three states—Nevada, Michigan, and Wisconsin—would be enough to deliver Biden the White House. If one of them falters, there are still other avenues. Pennsylvania and Georgia are also trending toward Biden. With lots of Atlanta area votes still to count, the New York Times election needle puts Biden as the slight favorite to win Georgia. Also, in Pennsylvania:
North Carolina, on the other hand, seems like a stretch for Biden, as Trump has a comfortable lead that could only be overturned if there was an unexpected deluge of late mail-in ballots that were postmarked by Election Day but arrived later in the week as is allowed by state election law. Could happen, but seems unlikely.
8 a.m.: An Early Bird Roundup of Slate’s Late Night Election Coverage
“Tonight’s ‘other’ main event is the battle for control of the United States Senate, which currently is composed of 53 Republicans and 47 Democrats.”
“In the early hours of Wednesday morning, President Donald Trump addressed a group of supporters in the White House to declare that he had won an election in which the votes were still being counted.”
“California residents approved Proposition 22, which lets delivery and ride-share companies continue to classify their workers in the state as independent contractors rather than employees. The closely watched voter measure exempts companies like Uber and Lyft from having to provide unemployment protections, minimum wage, sick leave, and other benefits to California gig workers.”
“The country had two ballot initiatives on abortion rights on the table this election, and they delivered opposite results.”
“Facebook Adds Label to Trump Post Declaring ‘A big WIN!’ Twitter Adds Label to Trump Tweet Claiming ‘They Are Trying to STEAL the Election.’”
“Around 11:20 p.m. on election night, Fox News made its first truly surprising call of the evening. The network’s designated ‘map guy,’ Bill Hemmer, who had been standing at the network’s big map outlining potential Trump and Biden paths to victory, was caught by surprise when the state of Arizona—which had voted for Trump in 2016—flipped to blue before his eyes. ‘What is happening here? Why is Arizona blue?’ Hemmer asked. ‘Did we just call it? Did we just make a call in Arizona?’”
7:25 a.m.: The Current Electoral College Count
The electoral count has remained pretty static for the past several hours, as we wait for a handful of key states to count mail-in ballots. Here’s where the race stands as of first thing this morning (via the Associated Press):
Biden 238 (Arizona , 11, California 55, Colorado 9, Connecticut 7, Delaware 3, District of Columbia 3, Hawaii 4, Illinois 20, Maine 2, Maine (1) 1, Maryland 10, Massachusetts 11, Minnesota 10, Nebraska (2) 1, New Hampshire 4, New Jersey 14, New Mexico 5, New York 29, Oregon 7, Rhode Island 4, Vermont 3, Virginia 13, Washington 12) vs. Trump 213 (Alabama 9, Arkansas 6, Florida 29, Idaho 4, Indiana 11, Iowa 6, Kansas 6, Kentucky 8, Louisiana 8, Mississippi 6, Missouri 10, Montana 3, Nebraska 2, Nebraska (1) 1, Nebraska (3) 1, North Dakota 3, Ohio 18, Oklahoma 7, South Carolina 9, South Dakota 3, Tennessee 11, Texas 38, Utah 6, West Virginia 5, Wyoming 3). And 141 outstanding. Alaska 3, Georgia 16, Maine (2) 1, Michigan 16, Nevada 6, North Carolina 15, Pennsylvania 20, Wisconsin 10.
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