Seventh Circuit Accidentally Tells Truth About Voter ID Laws

There is no "right to vote" in the United States Constitution.

This is a fact that surprises many people, given the centrality of democracy to our national ethos. But it's true. The Constitution prohibits certain specific types of restrictions on the franchise -- for example, limits based on race (15th Amendment), sex (19th amendment), or, in federal elections, failure to pay a poll tax (24th Amendment). However, there is no general, textual protection for a right to vote.

That said, the Supreme Court has recognized some heightened scrutiny that applies to limitations on suffrage. The "interest of the State when it comes to voting," the Supreme Court held in 1966, "is limited to the power to fix qualifications." The Court in that case concluded that wealth was not a valid qualification the state could impose on the franchise -- the state has no interest in preventing an otherwise qualified voter from casting a ballot because of his or her income. The broader principle is that the state has no valid interest in voter suppression -- preventing validly qualified voters from casting ballots. By contrast, a law which is related to enforcing a legitimate qualification -- say that the voter who presents themselves at the poll is in fact who they say they are -- may be permissible.

This distinction has been critical in more recent litigation over voter ID laws. Critics say that these laws are about voter suppression -- they are attempts to prevent lawful and qualified voters from casting their ballots by throwing up extraneous and burdensome obstacles in their path. Proponents, at least officially, deny any such motive -- they contend that such laws are simply about ensuring "election integrity" by preventing fraudulent votes from being cast. Any resident who actually is a valid voter should still be able to cast their ballot (all they need to do is show a valid ID! How hard is that?).

Now, it's always been evident that the latter, "anti-fraud" justification was a lie. The alleged "fraud" was essentially non-existent; and demanding voter ID wouldn't generally even forestall the tiny amount of fraud that did occur. But when the Supreme Court later upheld laws like Indiana's voter ID statute in Crawford v. Marion County against a facial challenge, it relied on this distinction between wrongfully trying to disenfranchise qualified voters and the legitimate state authority to fix qualifications. Voter ID laws are permissible because they are not about blocking qualified voters from voting, they are about ensuring that only qualified voters vote.

Recently, Indiana modified its voter ID law to prevent student IDs (but not VA, military, or tribal IDs) from being used as "voter ID". A district court had enjoined the law, ruling that it would unconstitutionally suppress the votes of young Indianans (and to reiterate -- young Indianans who are entirely legitimate and valid voters in Indiana elections). Earlier today, though, the Seventh Circuit stayed that injunction under the so-called Purcell principle, which cautions against court injunctions that change election rules too close to election day (ballots in Indiana's primary elections have already been mailed out).

The district court analyzed Purcell but concluded it did not apply, given that Indiana had permitted student IDs as a valid form of ID for decades and so would have to do nothing more complicated than revert to the system it had been using in every election up to the present one. But the Seventh Circuit disagreed, and in doing so it said something very revealing:

We view the risk of disruption to Indiana’s primary election as very serious. In no uncertain terms, the district court’s injunction will alter who can cast a ballot in this election (emphasis added).

This is a very revealing line. In theory (very, very naive theory), Indiana's law should not "alter who can cast a ballot in this election." The students who were eligible to vote before the ID law was passed are still fully eligible to vote after the law was passed. All Indiana is doing is tightening up security to ensure that only eligible voters vote -- but these students are eligible voters. In practice, of course, the court is absolutely right: some voters -- qualified, eligible voters -- who would be able to satisfy Indiana's voter ID law with a student ID will no longer be able to do so under the new rules, and so will not be able to cast a ballot. The function of the law is not to simply fix legitimate qualifications -- it is to prevent eligible, lawful voters from voting. The critics were right all along. 

Worse, the court's logic here manifestly treats as an injury (a "serious" injury; a "disruption" demanding emergency judicial action) the inability of Indiana to suppress valid, legitimate votes. Indiana did not change who was formally eligible to vote in its elections, meaning that the class of voters whose ability to "cast a ballot in this election" will be altered is comprised entirely of legitimate, registered voters. That cannot be stressed enough. One could imagine Purcell analysis that goes entirely to the procedural difficulties of changing voter ID eligibility rules midstream (such an argument might be plausible given that ballots had already been mailed, though the district court found that all Indiana would have to do to come into compliance is delete a single line in its election guidance documents). But that's not what the panel said. The court's articulation of the problem here is not one of administrative strain. The court's problem, "in no uncertain terms", is that certain eligible, registered voters who would be prevented (in spite of their eligibility) from casting a ballot if the student ID prohibition was in effect would now be allowed to cast a ballot in the primary. People who are eligible to vote will now not be blocked from voting. In essence, the court treats voter suppression as tantamount to a compelling state interest -- a stunning perversion of even our meager "right to vote" jurisprudence.

One might say I am reading too much into a single line in a hastily-filed emergency ruling. But I would say the Seventh Circuit's opinion is the epitome of a judicial Kinsley gaffe. Everybody knew that voter ID laws were not about concocted concerns about "fraud" but rather about trying to suppress lawful votes from Democratic constituencies. The Seventh Circuit just finally got around to admitting it.

What Are You Going To Do?

You know, as soon as I started reading this Paul Campos post about "respectable" conservatives who, in the event that Trump does (as he has started suggesting) try to cancel the 2026 elections, will inevitably find some way to explain why it isn't so outrageous or unlawful or norm-busting or what have you, I immediately thought "Josh Blackman".

Now, that was before I got to the halfway mark and saw that Blackman's name was, indeed, dropped. And perhaps laying a marker down on Blackman here is akin to bragging about picking a one seed to make it to the Sweet Sixteen of March Madness.

But lay down my marker I shall. I can even hear the formulation he'll use: "I can't bring myself to be mad about ....", followed by a citation to some non-analogous alleged liberal sin that supposedly demonstrates that this is all just part of the game everyone plays, and Democrats are just play-acting at crying foul.

Again, I don't pretend I deserve any credit for a bold prediction here. But Blackman really is just the archetype for this particular brand of hackishness. 

And if it feels unfair to say someone like him would really support nullifying the 2026 elections, that's part of the pattern too -- the whole point is the repeated practice of conservatives rationalizing behavior that, a few months earlier when it seemed inconceivable, they would have treated as outrageous slander to assert conservatives would ever rationalize:

Suppose the Republicans move to cancel or annul the 2026 elections.  What will be the justification from the center-right (the same people who never would’ve dreamed of annexing Greenland but now say it’s kind of a reasonable idea, the same people who never would’ve dreamed of endorsing insurrection but now say . . . the same people who never would’ve dreamed of shooting survivors on a boat but now say . . .)?

 In fact, I'd say this is the ur-story of Trumpism, dating back to his first arrival onto the political scene. As I wrote back in 2016, shortly after his first election: "Much of the conservative movement has spent the last two years slowly transitioning from 'it's an outrageous slander to say that a racist cartoon character like Donald Trump represents the conservative movement' to 'it's an outrageous slander to say that the American conservative movement is "racist" or "cartoonish" just because it adopted Donald Trump as its representative.'" It was not, in the scheme of things, too long ago that "supporting Donald Trump" fell into the category of "something so outrageous of course I, the reasonable conservative, would never do it and only a crazed partisan would contemplate otherwise." Blackman, after all, was on the "Originalists Against Trump" letter, urging that we "deny the executive power of the United States to a man as unfit to wield it as Donald Trump." But once Trump's presidency went from impossibility to reality, well, some people will make their peace with Hitler himself if it keeps the inside the inner circle.

Republicans Against Democracy, Parts 53258 and 53259

Today, a North Carolina appellate court issued a decision that would effectively steal a tightly contested State Supreme Court race won by Democratic incumbent Allison Riggs, retroactively invalidating thousands of ballots that the state board of elections deemed lawfully cast. The court gave some of the voters in question fifteen days to "cure" alleged defects, but few believe that the pell-mell scramble the decision has unleashed will enable all the voters in question to avoid being disenfranchised. In other cases, the court peremptorily declared that an entire class of voters that long been permitted to vote in North Carolina elections must be excluded after the fact. The decision is norm-shattering in retroactively -- after the election has occurred and ballots have already been cast -- deciding that certain votes by eligible voters will not be counted.

Because the race was so close and most of the challenged ballots are from Democrat-heavy constituencies, most observers believe the ruling will be enough to allow the losing Republican candidate to prevail by ex post facto judicial fiat. The decision will be appealed to the North Carolina supreme court (which has a Republican majority even without Riggs recusing, which she will); there is also a federal court case that is sitting in abeyance while the state challenges work their course.

Meanwhile, down in Texas, Republican Governor Greg Abbott is refusing to call a special election to fill the seat of deceased Houston-area Rep. Sylvester Turner (D). Abbott nominally justifies the delay on alleged "failures" in how Harris County administers elections; claims that county election officials have dismissed as "nonsense". The actual reason, nobody has any serious doubt, is to keep a Democratic seat empty and prop up the GOP's razor-thin House majority. Can't elect a Democrat if you don't hold an election in the first place!

Both of these atrocities are united by a common theme, which is that Republicans fundamentally do not believe in democratic elections (January 6 was proof enough of that; the pardons of the insurrectionists just gilds the lily). And I fully endorse Scott Lemieux's point that these decisions lie downstream of the Supreme Court's abominable Rucho decision: once you validate contempt for the democratic process in the form of extreme partisan gerrymanders, you encourage further contempt in all sorts of other domains.

Don't Accommodate Conspiracists

The other day, Yair Rosenberg flagged a bill introduced by Republican Rep. Thomas Massie (R-KY, and almost certainly the most openly antisemitic member of Congress in office today), titled the "Dual Loyalty Disclosure Act," which would require all persons running for office to disclose what countries (other than the United States) they hold citizenship in. Nominally targeting dual citizens, the bill, Rosenberg observed, was clearly inspired by various "lists" circulating on neo-Nazi sites which allege that all Jewish members of Congress are dual citizens of (and thus dually-loyal to) Israel. To that, Rosenberg wrote, "Ironically, the bill would debunk one of the very conspiracy theories that inspired it" (since the disclosure list would reveal that no Jewish MoC has Israeli citizenship).

I meant no disrespect to Yair when I replied that the bill would not "debunk" the conspiracy at all. "[T]he nature of these conspiracies immunizes them from debunking." The truth is already out there, and has not accomplished anything -- so offering more "truth" isn't going to serve as remedy. Rather, I said "When you humor conspiracy theorists by suggesting they have 'legitimate' concerns, you only encourage them."

This is a lesson that generalizes. "Voter fraud", for instance, is an essentially non-existent problem in this country. Nonetheless, the Supreme Court endorsed the state's right to impose voter ID laws to tackle the perception of widespread voter fraud -- even though that perception was (by the Court's own admission) not remotely grounded in the objective record. The Court rationalized its decision as enabling the state to generate greater "confidence" in election results in the face of this widespread, albeit objectively false, sentiment that voter fraud was a serious problem.

This, to put it mildly, did not work. Humoring those who harbored lurid and outlandish beliefs about voter fraud did not cause them to develop greater "confidence" in the electoral system; it instead encouraged them to dig in deeper (culminating, of course, in Trump's attempted insurrection following the 2020 election). A second's worth of reflection could have predicted this would be so: their original fears weren't grounded in reality, so obviously a reality-based solution isn't going to assuage them. All it does it suggest they are on the right track. But whatever grievance or paranoia generated their conspiracy to begin with -- most likely "minorities are sometimes winning elections when I don't want them to" -- that isn't effected at all. You cannot indulge.

Or take vaccines. We've gotten, it seems, a column a week lecturing the medical profession that they must figure out ways to "reassure" "vaccine-hesitant" Americans who, while perhaps objectively misinformed, also have "legitimate concerns" that need to be addressed. Again, the notion that more robust studies or in-depth research could "assuage" "concerns" misapprehends how anti-vaccine sentiment works. RFK Jr. does not want to be "reassured" about vaccine safety, he wants to believe that vaccines are dangerous, and will actively resist efforts at appeasement that still end up concluding that vaccines are in fact, safe. The fact that vaccine safety is settled science means that science must be unsettled. That's no doubt why the new NIH head is so enthusiastic about promoting "dissent" -- not from the administration's new orthodoxies about transgender healthcare, of course, but about the utility of vaccination. It's certainly why RFK picked a serial fraudster to lead the new "studies" into the alleged links between vaccines and autism. When you accommodate the cranks, they get crankier.

"Media bias", same thing. And there's a branch of criticism of academia that, I think, falls into this category as well. Here, too, we are regularly regaled with lectures on how, while Trump's assault on academic freedom may be a step too far, universities did maybe bring it on themselves with their stifling group think and endorsement of wacky leftist priorities. I took a sinful amount of pleasure reading Tressie McMillan Cottom positively curb-stomp Bret Stephens as the latter tried to trot out his tired applause lines about the alleged woes of contemporary academia. Actually, there are plenty of robust debates inside our classrooms. Actually, humanities majors do fine in the job market. Actually, the "lowest-quality institutions" extant in academia today are not "Columbia" and "Berkeley", they're predatory for-profit institutions who plunged hundreds of thousands of Americans into crushing debt by falsely promising a "career-ready" education ("colleges not unlike the one that our current dear leader once ran as a purely economic enterprise.").

For academia, too, there are no reforms that are going to satisfy people prone to believe that the academia is compromised of "factories of Maoist cadres", because the actual state of academia bears no relation to their views on it. Accommodating their fantasies won't make them back off, it will just convince them they've been vindicated.

This doesn't mean that there are no steps university stakeholders should take to improve the robustness of discussion and debate on campus, ensure that campus communities of diverse backgrounds and viewpoints feel included and are treated equitably, and so on -- any more than urging that we dismiss anti-vaccine cranks means that we stop caring about medical quality control and safety testing. Rather, the point is we should do these things for ourselves, not for earning elusive and probably chimerical "credibility" from insatiable critics. Chasing their approval is a fool's errand.

Judge Ho's Politics of Collectivist Grievance

Last week, the Fifth Circuit refused to rehear en banc its bombshell ruling that states are, in most circumstances, forbidden from counting ballots that are submitted before election day but received after election day -- even where the practice is expressly authorized by state law. Permitting ballots postmarked by election day, but received sometime afterwards, is a common practice in many states across the country, and Congress has said nothing on the subject. But the Fifth Circuit -- channeling the recent partisan right attacks on mail-in voting nationwide -- decided that congressional silence demanded prohibition of this longstanding electoral practice.

I'm not going to write on the substantive question of this case though (Election Law Blog collects coverage here). Rather, I want to flag Judge Ho's two-page concurring 4chan post opinion, where he takes aim at his dissenting colleague Judge Higginson for noting the powerful critique of the panel decision by a "topflight" lawyer unaffiliated with the parties and who urged that it be addressed by the court.

Judge Ho is unimpressed. He says that this attorney's intervention doesn't offer any useful information to the court -- indeed, he doesn't address it at all. Rather, it "may just reflect the institutional bias at many of the nation’s largest law firms."

At one level, given the timing of this opinion, it is hard not to see Judge Ho's attack on national law firms as intentionally aligning itself with the Trump administration's crackdown on these same firms (also putatively because of their "bias" towards liberal causes). One major clue that is Ho's angle is a gratuitous shot he takes at BigLaw DEI practices, which has nothing to do with either the case at hand or law firms' alleged preference for liberal causes in their pro bono case selection, but of course looms large in Trump's own assault on the American legal citadel.

But it also is reflective of a broader pattern in Judge Ho's judicial temperament (or lack thereof) -- a pattern of grievance where, upon identifying broad classes of enemy groups, he defiantly abandons any pretense of judging individuals as individuals or on their individual merits.

Judge Ho's jeremiad in this opinion is against the practices of law firms. As a class, Ho alleges, these firms exhibit "institutional bias", these firms "are falling short of 'the great traditions of the profession,'", the firms "have abandoned neutral principles of representation, and instead engage in ideological or political discrimination in the cases that they’re willing to take on," and consequently the firms should not "be surprised when others take notice that they are no longer abiding by the principles of the profession, and react accordingly."

All of these attacks on large law firms elides the fact that Judge Higginson did not ever appeal to, or even mention, the august reputation of large law firms. He rather flagged the critique of one particular "topflight" lawyer -- Adam Unikowsky. Unikowsky is indeed a partner at the BigLaw firm Jenner & Block, he also as it happens is a former clerk for Justice Scalia. I don't know what types of cases either he or Jenner more broadly typically takes on pro bono. I do know in this case he made a highly-publicized critique of the panel decision, one that many legal observers found compelling, on an issue he otherwise had no connection to. But note that the whole point of Ho's fusillade against what law firms, as a collective, are allegedly doing is to justify his peremptory refusal to even entertain the substantive arguments made by Unikowsky, as an individual. He is lumped into this broad bloc of "large law firms", and from there he can be summarily dismissed as doing what "they" do: "motivated lawyering designed to reach a predetermined result." And here -- well before any engagement with Unikowsky's actual arguments, solely on basis of collective associations -- the thinking ends.

This is not novel behavior by Judge Ho. Ho has been a leading figure promoting academic boycotts of both Yale and Columbia Law Schools, refusing to hire as clerks graduates from either institution on the grounds that both universities allegedly discriminate against conservatives (for Columbia, he also cited alleged antisemitism). Here, too, the point of the "boycott" is an announced refusal to judge certain law school graduates as individuals, on their individual merits. There is surely no quarrel with Judge Ho declining to hire a clerkship applicant who he deems to have discriminated against conservatives on campus -- one doesn't need a "boycott" to do that (one also suspects those suspects would not be applying to Judge Ho's chambers). Rather, those most impacted by the boycott are most likely to be those victimized by the alleged predatory behavior Ho identifies, or at the very least innocent bystanders. Again, no matter: the payoff -- and indeed, the point -- of Ho's "boycott" is to make it so that these applicants do not get evaluated as individuals. Their individual merits and demerits do not matter. They fall under the umbrella of an enemy collective, and that is all the thinking he needs to do about them.

The MAGA right pretends (though less and less often) that its objection to "DEI" is that it fails to respect people as individuals or judge them on their individual merits. In reality, there are few more avid practitioners of anti-meritocratic politics than contemporary conservatives, for whom everything is filtered through a lens of identity and grievance. And that's all the more reason to state clearly what has become obvious: Judge Ho's politics (and he is nothing if not a political judge) are fundamentally collectivist in nature. He is constantly looking for excuses to refuse to evaluate individuals as individuals if they belong to the wrong group. The only thing that matters to him is whether you fall in the friend or the enemy camp. For the former, everything; for the latter, the law(lessness).

Here, too, every accusation is a confession. When it comes to group-based grievance politics that deny Americans' right to be judged based on the content of their character, there are few more flagrant abusers that Judge James Ho.

"I Dressed Like a Crazy Pharoah for You, Man!" (Azerbaijan Edition)

Azerbaijan is holding a Potemkin presidential election tomorrow. But what makes this one especially outstanding is that not only did the authoritarian incumbent put a bunch of fake "opposition" parties on the ballot, he's also having them release deliberately idiotic policy proposals so he looks better by comparison (h/t).

The "opposition" candidates have brought some color to the election campaign by mooting a number of unlikely policy proposals: renaming the country the North Azerbaijan Republic, a nod to nationalist discourse that dreams of a greater Azerbaijan, including the ethnic Azerbaijani minority regions of Iran; formally claiming Armenia's Syunik Province as Azerbaijani; or sending Azerbaijani troops to support Russian forces in Syria.

"They want to talk about all these stupid ideas in order to show that Aliyev is better [and] that these are the only alternatives," Open Azerbaijan's [Zohrab] Ismayil said.

 Wasn't this a plotline on Community?

The presidential "debate" was equally farcical:

At a debate held before Azerbaijan's February 7 presidential election, the viewer could be forgiven for not being sure who was supporting the incumbent and who represented the opposition.

"President Ilham Aliyev has kept his word and fulfilled every promise he has made," said one candidate, Fuad Aliyev (no relation to the president), at the January 15 public television debate. Another candidate, Zahid Oruc, argued that great Azerbaijani statesmen throughout history would all have voted for Aliyev.

The president himself did not appear at the debate but sent an emissary, Tahir Budagov, to absorb some of the flattery.

"Dear Mr. Tahir, do you know the strengths of the candidate you represent?" Razi Nurullayev, the head of the National Front Party, asked Budagov. "For years, our party has stated that we will liberate Karabakh and restore the integrity and sovereignty of Azerbaijan, but your candidate has done it," Nurullayev said, referring to Azerbaijan's recapture of the ethnic Armenian-dominated region of Nagorno-Karabakh in September 2023.

One almost has to respect the commitment to bootlicking. Almost. 

You will not be surprised to learn that genuine opposition parties are boycotting the election entirely.

While I'm Here....

I happen to be in Virginia right now, on my way to give a talk at UVA. But I completely forgot that today was Virginia's state legislative primary election day.

I haven't really been following the races too closely (with the minor exception of this post), but so far the results seem positive. On the Democratic side, Sen.  Joseph D. Morrissey, one of those random conservative anti-abortion Democrats who'd managed to hold onto his blue district forever despite constantly seeming on the verge of defecting to the GOP was finally ousted in landslide by Lashrecse Aird. Also, Del. Suhas Subramanyam (D) handily won the nomination for an open state senate seat against former delegate Ibraheem S. Samirah, who had a truly ugly relationship with the Jewish community in his brief time in office.

Across the aisle, at least two open insurrectionists lost in GOP primaries. Far-right Senator Amanda F. Chase was ousted by more traditional establishment-y foe Glen Sturtevant. And fellow Jan. 6er Del. David LaRock lost his bid for a promotion, placing second in an eight-way primary for state senate.

Others who know more than me can cheer and/or lament other developments. But on the whole, this seems pretty good to me!

The Aesthetics of Election Rigging

Russia has announced the results of the totally free and fair referenda conducted in occupied Ukrainian territory and wouldn't you know it: everybody is just beside themselves with excitement at joining the Russia Federation.

The Russian state news media was reporting what it described as results showing enormous levels of support for joining Russia in four occupied territories. Tass, the Russian news agency, reported 92.68 percent in favor in Zaporizhzhia, 86 percent in Kherson in the south, and 93.95 percent in Donetsk and 98.53 in Luhansk in the east.

When it comes to these sorts of obviously rigged elections (remember when Azerbaijan accidentally released its election results the day before anyone had actually voted?), I always wonder how these figures are decided. Which bureaucrat is deciding that, yeah, 98.53% is the right figure for Luhansk? Not 98.52,% god help us not 97%, but 98.53%? There must be some thought that goes into it, yes? I wonder who has that job.

The other aspect of it is why the margins in these rigged elections are so ludicrously lopsided. I get wanting to have (the illusion of) a resounding consensus, but everyone knows results in the upper 90s are not even remotely credible. If they had made up a 60/40 victory spread, the news coverage probably would have concentrated on it being "surprisingly close", but it might have actually treated the election itself as if it wasn't transparently fixed. Sometimes less is more, people!

The Cycle of Republican Acquiescence To Authoritarianism

If, in 2014, you had told the average Republican they'd endorse what their party was doing from 2016 to 2020, they'd have been appalled. More than appalled -- they'd accuse you of suffering from a sort of derangement syndrome, of viewing the opposing party in such an implausibly demonic light that it rendered you unable to ascribe even a modicum of decency or principle to one's ideological opponents. From nominating a birther for president to the Muslim ban to trying to nullify legally cast ballots, the story of the past four years has been Republicans acceding to racist authoritarianism in cases where -- had it been pitched as a hypothetical prediction -- they'd have sworn up and down "of course we'd never do that!"

What is going on? The answer is straightforward, and it really does trace back to Donald Trump. Once Trump and his campaign endorses one of these illiberal and extreme actions, two things happen for Republicans deciding whether to endorse or oppose them:

1. They're put in a position where opposing the action means standing up to Trump;
2. They're on notice that some significant sector of political elite actors will endorse the decision -- it is no longer the province of the fringe or kooks.

The first factor matters because if there's one thing the last four years have made clear, it's that Republican politicians cannot and will not stand up to Donald Trump. You can find stronger moral backbones in a Bill Cosby Jell-O commercial than in the Republican political class these days. And the second factor matters because it suggests that the action in question may well succeed. It's easy to proudly disavow the thought of stealing an election when you know you won't get away with it. But once it actually becomes a live option, well, then it's a bit more tempting to jump onboard. And even if it doesn't ultimately succeed, the endorsement by a significant segment of mainstream political elites* provides moral cover after the fact -- it becomes the stuff of ordinary partisan dispute rather than an extremist power grab.

And of course, all of this dovetails with the GOP's personal partisan advantage. Put it together, and you have a recipe for Republican acquiescence, one we've seen over and over again for the past four years.

Will we see it once more if Donald Trump tries to steal the election? It's true that just because we've only seen grey ducks so far, that doesn't mean the next duck won't be white. But boy would I not count on the GOP breaking the cycle.

* One of the most frustrating things about how Trumpism has been covered is the refusal of many commentators to identify it as existing as part of elite (in the sense of highly-placed) mainstream (in the sense of carrying considerable public support) politics. When people try to criticize Trumpism, the response often is to act as if his views are "fringe" or "not respectable" or "out there", such that it's a form of nutpicking to even pay attention to them. But they're not fringe! They occupy the Oval Office! They're the dominant force in one of the two major political parties! Trumpism at the moment has far more power in both elite political institutions and mainstream political organizations than does, say, Colin Kaepernick. If you're looking to criticize views that have considerable public influence and purchase, Trumpism should rank far, far higher than whatever example of "performative wokeness" you're currently writing up your forty-fifth column on, and this would be obvious to anyone who remembers that places outside of Brooklyn exist.

The End of the Executive's Advantage

I've noticed something this cycle -- or at least I think I have -- that seems to augur a shift in some old presidential conventional wisdom.

The old CW was that Governors and other executive officials had an advantage running for President over Senators and Representatives, because the latter have a voting record one can inevitably comb through to cherry-pick something that sounds bad or controversial.

But this cycle, it seems that its elements of executive experience -- as a district attorney, attorney general, or mayor -- that has created the greatest points of vulnerability for aspiring Democratic candidates. The most damaging hits on Klobuchar and Harris, for instance, have not been Senate votes but rather conduct done as supervising government attorneys. Bloomberg and Buttigieg, of course, only have executive experience, and their programs and policies as mayor have haunted each of them (but especially Bloomberg) throughout the campaign. The fact that supervising executives can be tagged with buck-stops-here responsibility for the acts of subordinates (and often are legally required to sign off -- however notionally -- on policies that are in practice taken far below their level), makes it easy to find examples of dodgy or abusive behavior across an entire governmental bureaucracy (a legal argument here, a programmatic decision there) and tie them to the executive official.

I'm not entirely sure what is causing this shift. One possibility is that growing polarization means that politicians have largely given up on getting bills passed via compromise. Whereas in the past Senators and Representatives might have been willing to bite the bullet and vote for imperfect bills that muster bipartisan support by having something for everyone to love and to hate, now there is little incentive to ever vote for something that contains politically unpopular elements just to "get something done".

Another possibility is that actions that are especially within the ambit of executive officials -- most notably criminal justice -- have gone from politically "safe" (nobody ever lost an election by being too tough on crime) to politically precarious (we can now totally imagine folks losing election because they were too tough on crime).

Or maybe there is no so such shift and I'm making it up (or maybe it's a shift that exists in the primaries but will fade come the general). But it seems to me that in this primary, at least, we're seeing far fewer shots fired over this vote, and far more fired over that program. And it's maybe no accident that Senators (or, in Biden's case, former Senators) are dominating the remaining Democratic field (while nary a governor is to be seen). The conventional wisdom that voting records will sink long-standing Senators' presidential ambitions is looking pretty frail.

The Smart Kids

Susan Demas argues that the reason pundits are so persistently cool on Elizabeth Warren is simply that she is one of the smart kids. Like Obama, she is sniffed at for being professorial, elitist, schoolmarmish, and so on.

The common thread between them is that they’re usually the smartest people in any room — something that particularly irks pundits who pretend to be experts on all manner of policy (but usually are just glorified theater critics).

This checks out, and I'd date the phenomenon back even further to Al Gore in 2000. That election was very much formative in my political development, and not just because of how it ended.

Al Gore was also a smart, wonkish, thoughtful guy -- obviously more qualified than his dim-bulb pseudo-cowboy of an opponent. But the narrative going into the election was that Al Gore's intelligence and wonkishness was his biggest electoral liability. He made people uncomfortable. He was awkward. Who would really want to have a beer with him?

As a studious and somewhat wonkish kid, this made a very large imprint on me. To that point, my only experience with "democracy" was in student government elections, where -- no matter how much the teachers lectured us to vote for the best candidate who will do the best job -- everyone just voted for the popular kid who promised pizza for lunch every day. And even then I think we all thought that was kind of silly, but we did it because student elections were silly and kids are silly and once we grew up and voted in grown-up elections we'd vote based on the serious reasons we were supposed to.

And then we flicked on the news, and it turned out that the grown-ups were being just as frivolous -- deciding the election as if it were a drinking game. If I had any nascent interest in a political career, it was squashed at that moment.

I suspect that there are more than a few young women -- and hey, maybe some young men too! -- who are having a similarly formative experience right now with Elizabeth Warren. They see her as smart and studious and talented and attentive to details. And they see not just that this doesn't matter, but that it is viewed as a deficit -- it is hurting her political chances.

It's a very depressing thing to live through. All I can say to those kids going through it now is: been there.

The Worst Spoiler

Here's a question I've been pondering:

Imagine an election with three parties: A, B, and C. Suppose that the election is decided on a plurality-winner (first-past-the-post) basis, and that B and C both would prefer the other to win over A (that is, B is C's second choice and C is B's second choice). Consequently, many members of both parties support "strategic voting"  whereby if B is the best chance of beating A C's voters should vote B, and vice versa.

In two districts, the results of the election are as follows:

District 1: A = 45%, B = 43%, C = 4%

District 2: A = 42%, B = 24%, C = 34%

In both districts, A wins, even though the combined B + C vote is larger.

My question is which party, B or C, is more to blame for failing to "vote strategically".

On the one hand, in District 1, C clearly had no chance of winning. So the voters who did pick C did so, under this view, on a completely selfish and self-destructive basis. But, one could say, the relatively small numbers who voted for C demonstrated C backers, as a whole, probably did try to "do their duty" and vote strategically. Maybe 4% is about the minimum one could plausibly expect even when voters are thinking in strategic terms.

On the other hand, in District 2, B arguably was competitive with C -- even if C had an advantage, B wasn't obviously drawing dead like C was in District 1. It's one thing to say "don't waste your vote on a third party that will be an obvious non-factor", it's another to demand dropping one's first preference in a situation where it is realistically in the mix. Yet of course, the flip side is that in District 2 it looks as if B backers didn't even realistically contemplate voting strategically, and thus a district which is overwhelmingly "B + C" ended up in the "A" column (whereas District 1 at least looks to be on face a swing district).

Obviously, part of the answer depends on what the baseline levels of support would have been for voters had they not been acting strategically. It's hard to credit B backers in District 1 for voting strategically if their base of support was 4% to begin with.

But anyway, this is something I've been pondering.

2019 Will Be a Fun and Normal Year for Israeli Politics

As 2018 drew to a close, Bibi Netanyahu dissolved his government and called for snap elections, which will occur in April. What's happened since then? Oh, many normal things:

• The Israeli attorney general announced that he is leaning towards indicting Netanyahu for various public corruption type offenses, and that he will formally do so before election day.

• Naftali Bennett and Ayelet Shaked broke away from the Jewish Home party and announced the formation of a new right-wing party, which they've dubbed (creatively enough) "New Right". I am not the first to immediately think "Alt-Right" would have been more appropriate. Among their first pick-ups was far-right journalist Caroline Glick, who until now has mostly existed as living proof that I'm unfair to Liel Leibovitz when I call him the worst columnist writing in Jewish media today.

• Former IDF Chief of Staff Benny Gantz launched his own party. What does it stand for? Well, in his words, Gantz's positions are "politically flexible", and pretty much every story on him has noted how careful he's been to not stand for anything in particular in the election run-up. This development (relatively well-liked political cipher launches vaguely centrist political party) is, in fact, very normal and expected, and seems to happen at least once per election cycle.

• Meanwhile, on the left side of things, Labor leader Avi Gabbay unceremoniously ended his party's partnership with Tzipi Livni, dumping her on live TV without any warning. Apparently, he thought she was just too mean to him. I'm a long-time Livni booster, but she's never managed to fully gel with Israeli voters ("the best Prime Minister Israel never had") -- the overlaps with how a certain American presidential candidate has been treated are too stark to ignore. The question is, will this latest dose of seemingly brazen boorish misogyny finally spark a backlash that will redound in her favor (right now her Hatnuah party is just floating at the edge of the electoral threshold)? As for Labor, early polls show its support utterly crashing.

• Despite (or because) all of this, and despite the fact that pretty much nobody in Israeli likes him, Bibi is overwhelmingly favored to secure another term as Prime Minister. His opposition is hopeless fractured and the Joint List (representing Israeli Arabs) historically has refused (and, to be fair, has not been welcome) to join any government. Without them, there's virtually no math getting a viable left-of-center coalition into the majority (the only hope would be a truly uncouth Frankenstein's monster which stitches together some ultra-Orthodox parties into the coalition. But while that's worked before in the past, those parties has drifted more explicitly to the right over the years at the same time that the margin for error has shrunk).

David's Novel Post-Election Electoral Proposal

There's been a lot of controversy regarding several extremely close races whose ultimate victor remains up in the air. These include the Arizona Senate race and the Florida Senate and Gubernatorial races (as well as, potentially, whether the Georgia Gubernatorial race will head to a run-off).

Here's my novel proposal to defuse these controversies and ensure that the person ultimately seated has democratic legitimacy:

1) If, after election day, a Democrat is ahead: count all the votes.

2) If, after election day, a Republican is ahead: count all the votes.

3) If, after all the votes are counted and a Democrat is ahead within a preset margin of victory: recount all the votes just to be sure.

4) If, after all the votes are counted and a Republican is ahead within a preset margin of victory: recount all the votes just to be sure.

5) If steps 1 - 4 are scrupulously and fairly followed: seat the winning candidate.

I know it's crazy -- but it's just crazy enough to work!

Election Liveblog: 2018

It's Election Day, and I'm liveblogging! We're in this until the bitter end -- or until the news gets too depressing and I make up for 11 years of not drinking alcohol in one fell swoop.

Updates will continue throughout the day below (though obviously, there won't be much here until results start coming in this afternoon). Join me!

(All times Pacific)

* * *

2:25 AM: Okay, I'm calling it for the night. The Montana count has slowed to a crawl, and I've been at this almost continuously for nine hours.

Make no mistake, this was a big night for Democrats. Yes, the Senate was a disappointment. But the House was a huge victory. And -- Florida and Georgia notwithstanding -- we did a solid number on the gubernatorial races too. Seven states will welcome in new Democratic governors -- including some critical 2020 states -- and that matters a lot going forward.

1:49 AM: The main race I'm hanging on for is the Montana Senate race, which stubbornly remains red (Rosendale leads by 1.5 with 78% reporting) even as for a long time Tester still seemed to be in good statistical shape. The problem is that the blue parts of Montana just aren't reporting their numbers -- most notably, both Missoula and Gallatin counties, which are by far Tester's strongest turf, are each more than half out. Tester's winning Missoula by 31 and Gallatin by 21 so far, but that's actually a bit short of his benchmarks (another Dem fade!) -- he needs 37 and 23 point margins, respectively.

1:46 AM: See, this is why you need local experts. Turns out that Mower County is the one place on the Minnesota/Iowa border that leans blue. And good thing too, since it still has 40% left to report with Hagedorn up by less than 600 votes. I'd still say Hagedorn has a big advantage, but this isn't quite over yet.

1:36 AM: Unless there's something really skewed with the absentee and other late-counted ballots in Arizona, I have to think Martha McSally has taken this. But there's down-the-line silver lining for the Democrats: holding a solid Republican candidate like McSally to a sub-1 point victory in Arizona is definite proof that this state is trending, if not blue, then at least purple.

1:31 AM: More bright news from Wisconsin: It looks as if Democratic challenger Josh Kaul has defeated Republican Attorney General Brad Schimel.

1:27 AM: Okay, now I think we might be able to make a call in the California's 15th Assembly District. With 77% reporting, Buffy Wicks has what seems to be a commanding 57-43 lead on Jovanka Beckles. Congrats to Wicks, who will make a superb Assemblywoman.

1:23 AM: California races can change after the buzzer, thanks to all the mail-in ballots, but for the moment at least it looks like Rep. Dana Rohrabacher has lost his race against Harley Rouda. Rouda leads 51/49 with 99% reporting. And since late ballots tend to favor Democrats, Rouda should sleep well tonight.

1:17 AM: In a D-on-D California Assembly race, Speaker Anthony Rendon is beating Maria Estrada 57-43 with 2/3 reporting. While that's a comfortable margin, it's not as comfortable as I'd like given that Estrada is a raging antisemite.

Meanwhile, in my Assembly race, Buffy Wicks still has a 17 point lead over Jovanka Beckles, with just over half of all precincts reporting.

1:11 AM: I mean this about, I dunno, 70% seriously, but there's something to be said for all the Florida voters who voted for Scott or DeSantis and Amendment 4 (felon re-enfranchisement). There must be a lot of them, since A4 passed with over sixty percent of the vote, and given the sharp racial skew in Florida's ex-felon population, the sheer number of people who had been barred from voting who now will be eligible, and how closely divided Florida is, there's a very strong chance that these voters have basically signed away their political future to the opposing party.

If they knew that, and did the right thing anyway -- well, I tip my hat to that, at least.

1:06 AM: While "Democrat comes from behind to win in Connecticut" isn't exactly something to crow about, it is looking pretty good for Ned Lamont, who's been trailing all night in the Connecticut gubernatorial race but now appears to have pulled into a narrow lead.

1:04 AM: It's still overwhelmingly likely that Rick Scott has defeated Bill Nelsen (which -- come ON Florida!), but it is worth noting that the race has quietly crept back into automatic recount territory as Broward County processes its absentees.

12:59 AM: Apparently the California Senate race has been called for Dianne Feinstein. Kevin de Leon certainly ran a spirited contest and made it close, though his final coalition looks to be a bit of an oddball mix of "progressives thirsting for a lefty challenge to Feinstein" and "conservatives who instinctively vote for the not-Feinstein".

12:48 AM: Oh, in case you were wondering, yes, the Green Party vote is about twice the margin between McSally and Sinema in Arizona.

12:44 AM: Looks like Hurd is back ahead for good (provisionals, absentees, etc. TBD). And absentee votes have already made an impact in one race: in the GA-06, Rep. Karen Handel is now losing to Democratic challenger Lucy McBath by about 1,000 votes.

12:37 AM: The UT-04 race continues to tighten: Democrat Ben McAdams now has a 2.5% lead over GOP Rep. Mia Love. The remaining vote looks like it leans ever-so-slightly red (Utah County is 62% unreported and is blood-red, while Salt Lake City -- not as blue, but much more populous -- has around 30% left to report). This will be a nail-biter.

12:23 AM: I think McSally is in a good position to hold Arizona's Senate seat for the GOP. She's consistently led by about a point, and while Sinema is narrowly winning Maricopa, she needs to increase her margin by at least a little bit and she's running out of time to do it. Again, Maricopa is so geographically diverse that it's not impossible to make up the difference, but McSally is in pole position.

12:08 AM: Oh good: another "reporting error" puts Texas GOP Rep. Will Hurd back ahead. That's two in one night (the other was in Georgia's 7th district).

12:06 AM: Calling California races is a fools' errand, given all the mail-in ballots. Still, if you had told me that the closest of the toss-up CA race's would be Rohrabacher/Rouda, I'm not sure I would have believed it. Rouda has a half point lead with 70% reporting.

12:02 AM: With 20% reporting in my Assembly race (California AD15), Buffy Wicks is beating fellow Democrat Jovanka Beckles by 20 points. But I strongly suspect this is a race where different parts of the district will vote very differently, so I wouldn't read too much into that (though Wicks certainly should be pleased!).

12:00 AM: Poking our head into Montana, where Jon Tester is still down by about a point. But there's a lot of blue territory still outstanding, and again, he's hitting his marks there.

11:58 PM: Some tough early results (and the true disappointment in Florida) has masked a pretty solid night for Democrats. Not only taking back the House, but winning eight Governor's mansions (including a real feel-good victory in Wisconsin).

11:52 PM: Nevada carries on its slow but steady blueward march: Steve Sisolak will be its next Governor.

11:49 PM: What makes Arizona impossible to project is that 60% of the state's voters are in Maricopa, County, which includes Phoenix ... and a lot of rural areas that are not really much like Phoenix. On net, it's a swing county, but that's less because the whole county is purple and more because it has both some deep blue and deep red regions. So when it's 40% in and basically a tie, that could mean pretty much anything.

11:42 PM: Sometimes a race gets called and then those last few votes trickle in and suddenly ... the "loser" ends up ahead. So it appears to have gone in the TX-23, where GOP Rep. Will Hurd -- who had been called the victor earlier this evening -- is down 300 votes to Democrat Gina Ortiz with 100% reporting.

11:33 PM: And Nevada was just called for Jacky Rosen, finally putting Democrats on the Senate board tonight. Meanwhile, Arizona keeps on doing its thing -- McSally has a 1 point lead, with 55% counted.

11:30 PM: Will we ever tire of Danny Tarkanian losing? We may never find out! He lost again tonight, this time in the NV-02 district, to Democrat Susie Lee.

11:29 PM: And Wisconsin has officially been called for Democrat Tony Evers, who takes the Governor's mansion from one-time GOP star Scott Walker.

11:26 PM: Nevada is looking strong as Clark comes in 54-41 for Rosen and 53-52 for Sisolak. They needed a 53-45 margin, so while this isn't a blowout, they're both in a strong position (especially because both are winning in swingy Washoe County).

11:15 PM: I think Hagedorn will pull out the win for the GOP in the MN-01. Not only is this a rare D-to-R flip, but as I've mentioned this is the district where my in-laws live, so I'm especially less-than-happy that it elected a guy who likes to talk about how George Soros "owns" his opponents and accused Joe Lieberman of only voting for the Iraq War because he's a Jew.

11:05 PM: It's hard not to feel a bit nervous watching the California House results come in, but remember that a ton of the vote in California is by mail and gets counted late -- and that vote tends to lean liberal.

11:04 PM: Democrats flip the SC-01 -- probably an even bigger upset than the Oklahoma seat they won earlier tonight.

11:01 PM: So I knew that Democrats had taken control of the New York State Senate, but I hadn't realized just how badly they demolished the GOP in doing so -- they netted eight seats there tonight (they only needed one).

For me, the top two Democratic priorities in NY should be (1) reforming the state's awful election rules and (b) placing Simcha Felder on a raft and leaving him to fend for himself.

10:59 PM: I don't want to jinx it but ... Tony Evers might have pulled off the win in Wisconsin. Apparently a bunch of absentees were just counted in Milwaukee and Evers cleaned up there.

10:53 PM: Arizona continues to creep, creep, creep along. Republican Martha McSally leads Democrat Kirsten Synema by about a point. Almost all the remaining vote is in three counties: Pima, Pinal, and especially Maricopa. Synema needs to win Maricopa by one point, Pima by 17, and lose Pinal by 15. Right now she's winning Maricopa by one, Pima by 15, and losing Pinal by 16. Then again, Sinema has done slightly better than she needed in some of the more outlying rural areas (which is to say, she's losing there by bruising margins instead of lethal margins). This will be tight.

10:46 PM: I'll do a real post-mortem tomorrow (or maybe a little later -- I deserve a break). But one takeaway I have immediately is that this was not a "snapback" election from 2016, this was a continuation of a trend. Trump-y areas continue to back Trump. Suburban areas, long a redoubt for a sort of old-school Republican conservatism, continue to loathe him. States (Nevada, Colorado, Arizona, and yes, Texas) and districts which had been moving towards the Democratic Party continued to do so. Places which liked Trump in 2016 continue to like Trumpism in 2018 (Florida, Indiana, Missouri). If there's an exception to this, it's in the midwest -- but even there, look at Minnesota, which bucked the "blue wave" harder than perhaps anywhere after being closer than expected in 2016.

The thing pundits are really going to have to reckon with is that conservative Americans really like Trumpism. He's not an aberration. He's not an exception. He's not outside the Republican mainstream. There are segments of the country where racist, xenophobic appeals are really popular -- and right now, those are the locales where Republicans win.

10:30 PM: With Elissa Slotkin's victory over Rep. Mike Bishop in the MI-08, Democrats have officially won enough called races to take the House (I don't know if that count gets subtracted by one if Hagedorn pulls out the win over Feehan, but if not her there will be others).

10:27 PM: According to exit polls (I know, I know), 79% of Jews voted for Democratic House candidates this cycle.

10:22 PM: Nevada finally posts some damn numbers. Carson City is 88% in, with Republican gubernatorial nominee Adam Laxalt and Senator Dean Heller up about 13 points. That's decent news -- Democrats can lose that county by 16 and still win tonight.

10:13 PM: The called, uncalled, called again race in NY-27 goes to indicted Rep. Chris Collins. And Duncan Hunter likewise looks to have prevailed in the CA-50. With Greg Gianforte still ahead in Montana, this is a banner evening for Republican criminals.

10:04 PM: There's a big upset brewing in the SC-01 -- a deep-red district whose incumbent, Mark Sanford (yes, that Mark Sanford) lost a primary challenge to Katie Arrington. But now Arrington is shockingly down three points to Joe Cunningham, with 92% reporting.

9:59 PM: The MN-01 race is going to kill me. With 86% reporting, Democrat Dan Feehan has moved into a 300 vote lead. I have to think that the two remaining counties (there might be one more Rochester precinct) lean Hagedorn -- though if there are any experts on Jackson and Mower county, Minnesota, now's your time to shine.

9:54 PM: I want to be very careful, and very precise, in how I say this: a "data error", in a Georgia congressional race, that puts a Republican incumbent over the top in a race where it looked like he had lost to his Democratic challenger, looks very, very bad.

9:49 PM: A college buddy of mine ran for the Minnesota State House. He got smoked -- but don't worry: while I love him as a friend, he'd make a terrible legislator. (Democrats looked poised to win the State House outright, flipping it from GOP control).

9:42 PM: Democratic Rep. Colin Peterson has won reelection in the MN-07, but it was close, again, even though Republicans didn't really invest much effort in the race, again. I have to think that's going to change in 2020.

9:37 PM: Apparently the margin of victory in the KS-02 race, where Rep. Steve Watkins held off Democrat Paul Davis, was provided by a libertarian candidate who was a Democratic Party official planning to run in this race as a Democrat before the party consolidated around Davis. So he ran third party. Dead to me.

9:35 PM: Democrats have won the governor's race in Maine, thus bringing the hellish Paul LePage era to an end.

9:33 PM: As California starts to report (22% in), Senator Dianne Feinstein begins with an eight point lead over fellow Democrat Kevin de Leon. Interestingly -- given that de Leon is mounting a from-the-left challenge of the incumbent -- he's doing best in the less liberal inland parts of the state. I imagine some conservative voters just dislike Feinstein and reflexively vote for her opponent, even if he's a Democrat too.

9:29 PM: Rep. Steve King has reportedly held onto his western Iowa seat. It was close, but this goes to show that if your district is conservative enough there's no limit to how racist you can be.

9:25 PM: I think Scott Walker is going to squeak out another victory in Wisconsin. The rough Senate night was expected, but it's really been a deeply mediocre performance for Democrats on the gubernatorial side as well.

9:17 PM: Kim Reynolds looks poised to hang on to the Iowa governorship -- another GOP hold (and an extra impressive one given Democratic strength on the House side of things). She leads by 1 point with 85% in, but it looks like more red turf than blue is left outstanding.

9:07 PM: If the Democratic wall in the Senate really collapsed we would have lost Montana too, but fortunately that doesn't look to be happening. Jon Tester continues to hold down a 7 point lead with 27% reporting.

Meanwhile, the House race is also surprisingly close: Rep. Greg Gianforte (best known for bodyslamming a reporter) is up just 1 point over Democrat Kathleen Williams. And so far, it seems like she's right at her county targets -- which is to say, it may well stay this close down the stretch.

9:01 PM: Back in Minnesota, Angie Craig has pulled out to a 4 point lead in the MN-02 with 91% reporting. It doesn't look there are enough Republican votes to close the gap for Rep. Jason Lewis. A bit further south in the MN-01, Jim Hagedorn has a .4% lead over Dan Feehan with 68% reporting. Still plenty of Olmsted out, and I was right that it was D terrain. But if Hagedorn does hang on, he'll have won only the second GOP flip this House cycle -- both in Minnesota!

8:59 PM: On the other hand, maybe the call for Rep. Chris Collins was too soon too? He's trailing by 10 with 50% in, and the outstanding turf doesn't look great for him (though it's a bit hard to say, since some counties haven't reported at all).

8:56 PM: Josh Hawley is projected to beat Claire McCaskill in Missouri -- another Senate loss in what has been a really tough night for Dems in the upper chamber (off-set, of course, by our many victories in the lower chamber!).

8:50 PM: Retraction alert! Now I'm seeing reports that Rodney Davis has held on to his IL-13 seat. Sorry Illini.

8:47 PM: It'll be down to the wire in Wisconsin, where Democrat Tony Evers has a lead of less than 2,000 votes over incumbent Scott Walker. 78% of the state has reported, including virtually all of Milwaukee (though there are still some Democratic pockets in and around Madison).

8:44 PM: Democrats have won three of Iowa's four House seats. The fourth, held by White Supremacist Steve King, is almost deadlocked with two-thirds reporting.

8:41 PM: Indicted Rep. Chris Collins (NY-27) will be re-elected -- California's Duncan Hunter is hoping to make it two-for-two for the accused criminal House set. That said, Democrats have picked up at least three seats in New York: defeating the aforementioned Donovan (NY-11), John Faso (NY-19), and Claudia Tenney (NY-22). They've also officially won complete control of the New York State Senate. No more IDC shenanigans, please!

8:37 PM: We mentioned the NJ-02 earlier, where Republicans had cut loose Seth Grossman for being racist (and thus, they thought, non-competitive -- obviously they don't care about racists who might win). But this race has been tighter than expected, though now Democrat Jeff Van Drew does have a three point lead.

8:35 PM: Another Illinois Democratic pickup is projected, this time in the 13th district. Congrats to Betsy Londrigan, and all the UIUCers who helped make this possible.

8:33 PM: Claire McCaskill is down 10 in Missouri, albeit with much of St. Louis still to report. Still, it might be that the GOP basically runs the table on meaningfully contested Senate races (obviously, we've still got Arizona and Nevada outstanding. Montana also is only 20% in, though so far Jon Tester is hitting his marks).

8:29 PM: A Republican pickup in the MN-08 is their first House flip of the night. This was by far their best chance to win a Democratic seat, though the MN-01 race is still close and has a good chance of falling their way too.

8:26 PM: While we were distracted, Rep. Steve Watkins has pulled back into a (.5%) lead over Democrat Paul Davis. With 90% reporting and (I think) mostly red turf out, this looks like a GOP hold.

8:23 PM: With Kobach losing in Kansas, but DeSantis and (probably) Kemp winning in Florida and Georgia, it sometimes feels like the battle against the greatest GOP demons is like we're fighting H.Y.D.R.A.. "Strike down one head, and two will take our place!"

8:22 PM: Even if you're a cynic like me, it's virtually impossible to imagine Democrats not taking the House. They've already flipped 20 seats out of the 23 seats they need -- and there are some ripe pickings to be had out west.

8:18 PM: In case you were wondering, that UT-02 race has been slowly reverting to form. Now Republican Rep. Chris Stewart is back in the lead by 2 points -- but while not all of Salt Lake City (the only Democratic territory here) is in, there's a lot of brutally red terrain down south that hasn't reported at all.

8:11 PM: It's a photo finish in the NJ-03: GOP Rep. Tom McArthur trails Democrat Andy Kim by less than 400 votes with 99% in.

8:05 PM: In the cruelest "Florida man" story, Florida men have elected Ron DeSantis governor (Andrew Gillum just conceded).

8:03 PM: We will net at least two Illinois seats: Lauren Underwood has defeated GOP Rep. Randy Holtgren in the IL-14. He joins Rep. Peter Roskam and, of course, Governor Bruce Rauner, among the defeated Illinois Republicans.

7:57 PM: Rep. Rodney Davis has crept back into the lead in the IL-13. He's up by a little over a point with 78% reporting. The good news for Democrat Betsy Dirksen Londrigan? The most outstanding turf appears to be in Dem-leaning Madison County.

7:55 PM: Tim Walz has won the Minnesota governorship, keeping the seat Democratic. But can team Blue keep Tim Walz's seat in the D column? Right now, Democratic nominee Dan Feehan is trailing Jim "my opponent is owned by Soros" Hagedorn by about 2 points, with 26% reporting.

7:50 PM: Why is Florida so tough for Democrats to capture? My hypothesis right now is that the more rural and tempermentally "Southern" parts of the state (paradoxically, in North Florida) have pivoted hard to the right faster than suburban Florida has gone blue. Consider that Nelson and Gillum both won suburban Pinellas County, historically a bellwether, even while (probably) losing statewide.

Of course, with the passage of Amendment 4, which will re-enfranchise 40%(!) of the state's African-American adults, this analysis might be moot faster than you'd think.

7:44 PM: Feeling good about Angie Craig's chances against Rep. Jason Lewis in the MN-02. She's up 2 with about half reporting -- but half of Dakota (the bluest part of the district) is still out along with all of Rice County (home of Carleton College!).

Things are a bit harder to predict in my wife's native MN-01. It's dead even with 21% reporting. I assume (though I don't know) that Olmsted County, aka Rochester, will be the strongest territory for Dan Feehan as he tries to keep this seat blue.

7:40 PM: It's not called yet, but Kendra Horn still has a 1 point lead over Rep. Steve Russell (R) in the OK-05, and 97% of precincts have been reported.

7:36 PM: Georgia continues to creep along in its reporting. The Governor's race is hard to process given just how divided this state is. But on the House end of things, there's some news: Democratic challenger Carolyn Bourdeaux is up 6 on GOP Rep. Rob Woodall in the GA-07. The more marquee race was thought to be the GA-06 race: Incumbent Republican Karen Handel has a small lead with less than 15% reporting.

7:31 PM: Out in Utah, Mitt Romney will be a US Senator. More interestingly, in the UT-04, GOP Rep. Mia Love is trailing by about 10 points to Ben McAdams with 53% reporting. There are a bunch of different narratives in play here: this is very conservative territory, but also not particularly Trump-positive territory. And Love -- one of the few African-American Republicans -- has always had to reckon with more than a bit of racism in this part of the country.

Also in Utah, Shireen Ghorbani is way up (like, 40 points up) against GOP Rep. Chris Stewart in the UT-02 with 18% reporting. I assume this is a mirage though, since I've never heard a whisper about this race.

7:29 PM: While O'Rourke may not have won himself, there's no doubt he gave Democratic House challengers down ballot a significant tailwind. And the first of those challengers to officially get a call is in the TX-32, where Colin Allred has unseated longtime Rep. Pete Sessions.

7:25 PM: We're looking at a rough Senate night for Dems (with Donnelly, Heitkamp and -- probably -- Nelson going down at the very least, with McCaskill still very much on the chopping block too). But we might have the weird scenario of a significant Democratic underperformance on the Senate side being paired with strong results on the House.

But while the brutal Senate map is probably responsible for most of the GOP's victories, their overperformance against the numbers certainly will give their spin doctors some ammo in the event the Democrats take the House, as seems increasingly likely.

7:24 PM: Rep. Rodney Davis's IL-13 seat has always been tantalizingly out of reach for Democrats, dating back to my time at the University of Illinois. But maybe this is the year: with about half the vote counted, he's trailing by 8 points.

7:19 PM: It looks like Ted Cruz is going to hold off Beto O'Rourke. Disappointed, but the very narrow margin is testament to the fact that everyone hates Ted Cruz, and we can take solace in that.

7:16 PM: A sleeper GOP upset pick would be the MN-03 (the non-sleeper GOP pickup district in MN is the MN-01, the non-sleeper and non-upset pick is the MN-08). Rep. Colin Peterson represents some very red turf, and he was held to a much tighter than anticipated margin in 2016 against a no-name opponent. The race is dead-even right now, albeit with less than 10% reporting.

7:13 PM: Not to keep picking on the early Kentucky/Indiana races, but the early angst might have been skewed by the fact that this is arguably the most pro-Trump area in America. Democrats are doing considerably better elsewhere -- including in generally red heartland areas like Kansas (and -- maybe -- Oklahoma: Kendra Horn is up a point on GOP Rep. Steve Russell in the OK-05 with just under 80% reporting).

7:07 PM: And we get some more AP calls: Luria has eked it out in the VA-02, and Rose has unseated Donovan in the NY-11. Two more very solid Democratic pickups.

7:04 PM: Just saw a call in Kansas -- Kansas -- where Democrat Laura Kelly apparently has defeated voter suppression maestro Kris Kobach. That feels real good. She's up 52-40 with 35% reporting. Also in Kansas, Paul Davis has a 6 point lead in the KS-02 with half the vote in. That'd be a nice Democratic pickup (his district was considerably tougher turf than Davids').

7:02 PM: While I'm ready to lock in the VA-07, the VA-02 remains comically close (oddly, I think the VA-07 was thought of as a harder Democratic target). With 94% reporting, Democrat Elaine Luria has a 44 vote lead over Rep. Scott Taylor. And there's no clear lean to the remaining precincts to count, either.

6:59 PM: A bunch more Democratic pickups. In the KS-03, Sharice Davids will become the first Native American woman in Congress (Democrats are hoping to make it two later this evening with Deb Haaland in New Mexico). Meanwhile, Haley Stevens has flipped a GOP open seat, beating Lena "let's bring out Jews for Jesus to eulogize Pittsburgh victims" Epstein in the MI-11.

6:56 PM: Sleeper race in New York: Democrat Max Rose has a 4 point lead on GOP Rep. Dan Donovan with 89% reporting. This was a race that wasn't really on anyone's radar as one of the marquee Democratic pickup opportunities.

6:51 PM: Still no call, but I think it's over in the VA-07 -- a big Democratic pickup given how the evening is progressing. Right now I think we'll see a Democratic House, but by a relatively narrow margin. There's no crushing wave, which makes it all the more imperative that Democrats win at least some races like this.

6:47 PM: Most of Minnesota hasn't reported yet, but one district has gotten ahead of the rest: MN-03, a suburban Minneapolis seat where Democrat Dean Phillips is smoking GOP Rep. Erik Paulsen. He's up 12 with over 70% in -- another affluent suburban district which is snapping back hard to the Democratic Party.

Over on the Senate side, both Tina Smith and Amy Klobuchar look solid in early returns.

6:45 PM: GOP Rep. Carlos Curbelo has conceded in the FL-26, giving a key toss-up race victory to the Democrats.

6:43 PM: Congrats to Jared Polis, who holds down a Democratic governorship in Colorado and becomes the first openly gay man to be elected Governor in American history.

6:34 PM: The Democratic pick-ups so far have been in districts we were expected to win (if Spanberger beats Brat, that would probably be our best victory so far). That would include Jason Crow defeating Rep. Mike Coffman in the CO-06. But if Laura Underwood takes down GOP Rep. Randy Hultgren in the IL-14, that would be a good get. She leads by 5.5 with 42% in.

6:30 PM: Now the VA-02 is back to a teeny-tiny GOP lead -- .4%! About 13% of Virginia Beach is left to report, and that's been bouncing here there and everywhere tonight.

6:21 PM: Gov. Larry Hogan (R) is projected to comfortably win reelection in Maryland over Ben Jealous. While this isn't as big of a deal in the scheme of things, given MD's Democratic supermajority in the legislature, it's still embarrassing that we can't elect a Democrat in a state as a blue as this (see also: Massachusetts).

6:15 PM: While it is good that Corey Stewart will lose to Tim Kaine in the Virginia Senate race, he isn't projected to do materially worse than Ed Gillespie did in 2017. That's worrisome, given that Stewart is basically an open White Supremacist and neo-Confederate fanboy. Moral of the story: Being a White Supremacist and neo-Confederate fanboy costs you precisely zero Republican votes.

6:12 PM: With 22% reporting, Republican Seth Grossman is up by 3 over Democrat Jeff Van Drew. This is an open GOP seat, but one the Republican Party had basically written off once they learned that Grossman was really, really racist. It's geographically large for New Jersey though, so this may not be a representative sample.

6:05 PM: Donnelly wasn't exactly expected, but it wasn't exactly wrenching either. But losing both the Governor and Senate race in Florida? That would hurt. A lot. Particularly when we're talking about a sociopath like DeSantis.

6:00 PM: West Virginia has been called for Joe Manchin -- an expected, if still nice, Democratic hold (particularly with Donnelly falling).

5:55 PM: KY-06 has been called for Barr -- a GOP hold.

5:53 PM: What goes around comes around! I think Rep. Dave Brat, who soared to prominence by defeating GOP Majority Leader Eric Cantor in the 2014 Republican primary, will lose to Abby Spanberger in the VA-07. He's down by only .2, but nearly all of the remaining vote is in D- or D-leaning turf.

5:51 PM: Democrats have just pulled into the lead in both the VA-02 and VA-07 -- but both by tiny margins (less than a point). At least 85% of the vote is counted in both districts.

5:50 PM: Just saw the first projection that Joe Donnelly will lose in Indiana. While there's still plenty of vote to count, Donnelly just isn't hitting his margins in the big cities.

5:49 PM: Christ, Florida, must we do this every time? "This" being insanely tight elections that boil down to how much vote is left in South Florida, and "this" being "possibly electing Rick Scott to offices by tiny margins."

5:41 PM: Checking back in on Virginia, Rep. Dave Brat (R) is up by less than a point -- and Chesterfield County (a blue -- albeit light-blue -- tinted county) is only half in. That's by far the largest source of outstanding ballots here.

5:39 PM: Some unambiguously positive news, if it holds: Florida looks poised to restore ex-felon voting rights!

5:29 PM: The VA-02 race in coastal Virginia is a little hard to parse. Incumbent Scott Taylor (R) is up three on challenger Elaine Luria with 70% reporting. But it feels like there should be a lot more votes from Norfolk. I don't know what to make of it, really.

5:27 PM: Statewide in Florida, both Rick Scott and Ron DeSantis are clinging to very small leads with 70% of the vote in. The good news: It seems like a lot of south Florida Democratic turf (e.g., in Palm Beach and Broward Counties) is still out. The bad news: I feel like I have a bad memory of thinking the same thing in 2016 and being very disappointed....

5:26 PM: Another very close race is in the FL-26 -- a south Florida district where GOP Rep. Carlos Curbelo has long been a top Democratic target in a district that went heavily for Clinton. With 77% in, challenger Debbie Mucarsel-Powell leads by less than a point. But virtually all the remaining turf is in the much bluer Miami-Dade part of the district, so if I'm Mucarsel-Powell I'm feeling pretty optimistic right now.

5:16 PM: The VA-07 race is going to be tight. GOP Rep. Dave Brat is clinging to a one point lead with 79% of the vote in. But much -- though not all -- of the remaining vote is in Chesterfield County, where Democrat Abby Spanberger is currently up by 7 points.

5:12 PM: 77% in, and Barr has pulled into a 1 point lead in the KY-06. About 12% of Fayette County (where McGrath is leading by 21) is left to report, and that's her best turf. But there's some red (or at least reddish -- pretty much anything not Fayette or Franklin County here is at least "reddish") territory also is still outstanding. The closest thing to a "swing" county left is Woodford County, which "only" went for Trump by 20.

5:08 PM: Comstock was basically a gimme, but Democrats had a few more targets in Virginia. The two largest were the VA-02 (Rep. Scott Taylor) and VA-07 (Rep. David Brat). Both incumbents are currently leading (though the Brat race has been oscillating a bit) -- a more distant Democratic target (VA-06) has already been called for the Republican.

5:02 PM: Another D flip is called, this time in south Florida where Donna Shalala has apparently taken an open GOP seat. There had been some griping about Shalala's campaign skills, but she's up 5 with 62% reporting.

4:59 PM: I'm going to be honest -- not feeling great right now. 22% of Marion County (Indianapolis) is reporting, and Donnelly is up by 28. DKE county benchmarks say he needs to win there by 42.

4:50 PM: Pinellas County is about half in, and both Nelson and Gillum are holding onto leads there (Nelson's is larger -- 5.5 points vs. 3 points). Again, that's fine if it holds up -- this is a very swingy county.

4:49 PM: Comstock, of course, was a "moderate Republican", which means she was substantively virtually identical to Paul Ryan on every issue except -- occasionally -- rhetorically.

4:43 PM: We have a House pick-up, and it's for the blue team! Rep. Barbara Comstock has gone down in Virginia's 10th District (suburban DC). With 60% reporting, she's trailing Jennifer Wexton by a bruising 16 point margin. Lest we get too excited, this is a district that Republicans had basically written off -- this part of the country loathes Trump.

4:41 PM: Franklin County is all reported in Kentucky, and McGrath ended up winning it by 8. That's not good -- she needed a 12 point margin. If you wanted to read this into a national trend -- and I highly encourage you not to -- the worry is that Democrats succeeded in getting more people to vote early but not more people to vote period. That might translate to a difficult night where early returns look good and then it slowly slips away.

4:34 PM: Finally, a biggish county starts to report in Indiana. St. Joseph's County, in the northern part of the state, is going for Donnelly by 27 points with about 20% of the vote counted. He needs a 20 point margin there -- but again, watch for backsliding if early (potentially more D-leaning) votes are the bulk of the count.

4:23 PM: As more votes are coming in, McGrath is backsliding a bit. The Clark County numbers were always a mirage, but now (with 42% in) Barr is up by 25 (he needs 20). Montgomery County is all  in, now with Barr holding down a 27 point margin (he needs 24). And while McGrath is still beating her numbers Franklin County (up 15, needs to be up 12, 48% in), she's lagging a bit in Fayette County, by far the largest in the district and a place where the Democrats need to dominate. Her 20 point margin is good, but it isn't good enough -- she needs to be up 25.

4:16 PM: Hey, we all remember Kim Davis, right? The Kentucky official who wouldn't process lawful same-sex marriages? Well, with almost 2/3 of the vote counted she's losing her re-election fight.

(Also, yes, she switched parties and now is a Republican)

4:13 PM: Let's turn our gaze to Florida, where the early vote in swingy Pinellas County (near Tampa) has incumbent Democratic Senator Bill Nelson leading Rick Scott by 8 point. The benchmark figure Nelson needs to hit is a 1 point win. But again, early votes in particular are often non-representative, so caveat emptor.

4:06 PM: Montgomery County joins the large KY-06 counties with over 10% in club. And with a third of the vote counted, Barr is leading by 19. Again -- that's good news for McGrath: she just needs to hold him to 24 in this county to come out on top.

3:58 PM: Polls are about to close in a bunch more states, meaning that our deep analysis of the KY-06 race may be coming to an end. But so far, I'd say things look good for McGrath. Franklin  County is now half in, and she's still up 15 (remember, a 12 point margin there was her benchmark, so right now she's past it). The only other large-ish county to have reported over 10% is Clark (11.5% in), and McGrath is up 8 -- which would be stunning, given that her benchmark there is to only lose by 20. I can't believe that's going to hold, but hey, good news is good news.

3:51 PM: Another example -- albeit from a smaller county, albeit with more reporting. With about a third of the vote counted in Indiana's Bartholomew County, Democratic Senator Joe Donnelly is trailing by about 9 points. In 2012 he lost Bartholomew County by 8 points while winning statewide by six points. Trump dominated here by over 30 points.

3:45 PM: Okay, we're going to jump the gun a bit and report some early results from the Kentucky-06 race, where Amy McGrath is challenging GOP Rep. Andy Barr. These are very early, and I'm giving to you only to illustrate the point I made before regarding county benchmarks.

The two biggest counties in this district to report a non-trivial chunk of votes are Franklin and Montgomery ("non-trivial" is relative -- both are around 6% in. That's not a lot). In Franklin, McGrath is up 29. In Montgomery, Barr is up 23.

Okay, but what does that mean? Well, in 2016 Montgomery County went for Trump by 41 points -- if McGrath can bring that margin down to a 24 point loss, she's in good shape. So she's right on target there. But the news is even better in Franklin County: Trump won that by 15, and McGrath's target is to win it by 12. So being up 29 would be a massive overperformance.

But again -- it is early. There's still a lot of votes to count, including in these two counties.

3:38 PM: Results are starting to trickle in, but they're sporadic and too spread out to really paint any sort of picture. What we're waiting for is a decent-sized county (e.g., Franklin in Kentucky) to report a decent-size percentage of its votes. Once that happens, we'll start getting a sense of where the night (or at least, that county's race) is heading.

3:20 PM: Don't trust exit polls don't trust exit polls 61% of first-time voters are voting Democrat according to an exit poll don't trust exit polls.

3:05 PM: And here ... we ... go! Polls have closed in Kentucky and (most of) Indiana. The nation's eyes, hungry for any bit of data they can swallow, all look to the Indiana Senate and KY-06 House races (the two main competitive contests here). Can Donnelly run-up the score enough in Marion County to overcome Indiana's Trumpist lean?

2:37 PM: The polls don't close for at least another 30 minutes anywhere in the US. But they do things differently out on the islands, and we've got our first Democratic pickup of the night .... in Guam! Lou Leon Guerrero will be Guam's next (and first female) Governor. Republicans had held the seat for the last sixteen years.

Congrats to Guerrero and incoming Lt. Gov. Josh Tenorio!

2:27 PM: Georgia Secretary of State and GOP gubernatorial candidate Brian Kemp -- who's been battling accusations of voter suppression all cycle -- struggles to cast a ballot after nearly being stymied by his own state's voter ID law.

1:28 PM: A poll worker in Houston is facing criminal assault charges after hurling racist remarks at a Black voter, then shoulder bumping her. The most interesting part of the story, for me, is what the worker said when the voter said she was calling the police: "I'm white. Have you seen the news? If you call the police, they're going to take you to jail and do something to you, because I'm white."

Now, to be clear, that's not what the police ended up doing (they escorted out the poll worker, as they should). But it is interesting to see how racist Whites are directly weaponizing the increased salience of police bias against Black people -- a sort of through-the-mirror-darkly upshot of the success of the BlackLivesMatter.

1:22 PM: Apropos of nothing, a new study published in the Journal of Politics finds that politicians no longer are punished for making explicit racial appeals to White voters. Some (albeit contested) evidence suggested that for a period such appeals had to be made implicit -- explicit racism being rejected by all -- but this study concludes that this era passed around when the Tea Party began organizing its anti-Obama backlash circa 2010.

12:19 PM: Still have three hours until the first results come in  (from Indiana and Kentucky). Quoth the wife: "What's the point of living in Pacific Time if the election isn't already decided by the time you wake up?"

12:08 PM: There's a lot of excitement over dramatically increased early voting numbers among young voters this cycle (see, e.g., here: it's up 2,500% in North Dakota). But while that's certainly not bad news, there are two reason to not overstate it. First, it's unclear what the base rate was (if virtually nobody was voting early in North Dakota, then a relatively small raw increase in early voting can yield a massive percentage increase). Second, it's possible that the rise is simply reflecting a shift where people who had been voting in-person now are voting early.

Put another way, my big worry this cycle is that voters who already voted Democrat are more amped up to vote Democratic (expressed, for example, by voting early) but that this isn't necessarily translating into getting new Democratic voters. And a vote doesn't count more just because its cast enthusiastically.

10:30 AM: You never want to generalize from a few tweets and reports, but voting in Georgia looks to be an utter trainwreck and all accounts are that's entirely by design from Secretary of State Brian Kemp -- who also happens to be the GOP gubernatorial nominee.

10:00 AM: One of the key resources I'm going to use throughout the evening is DKE's county benchmarks. Early returns can be deceiving, since often times it is only very particular parts of a state reporting. What looks like a GOP wipeout might be an artifact of certain conservative suburbs coming in before bluer urban areas. The benchmarks tell you what numbers Democrats need to hit on a county-by-county level. So it might be that even losing numbers early if they're nonetheless overperformances on the benchmarks in red parts of a state.

For example: if Jefferson County is first to report in Missouri and McCaskill is down 45-55 on Hawley, that would actually be a very, very good sign since it went 65-30 for Trump and DKE predicts McCaskill needs to move it to only a 42-58 loss in order to win statewide.

9:21 AM: The last bet I placed in Las Vegas (Jill and I were on a "mini-moon" vacation there) was on the Devils to beat the Penguins last night, at +150 (3:2). And they didn't just win, they throttled the Pens. All I can say is I hope that's the only upset pulled by a team of devils this week.

9:07 AM: The chalk picks, based on polling data, are Democrats winning the House and Republicans keeping the Senate. But like any severely-traumatized Democrat, 2016 has made me very nervous about chalk picks. What if the polls are wrong again?

Nate Silver would tell you that "improbable" events actually happen quite frequently -- that if something has a 75% chance of occurring, then statistically it should not occur 1 in every 4 times. If it occurs less frequently than that, then the 75% statistic is just wrong. And the most plausible explanation for why (some of) the polls were off in 2016 is simply that.

But there are other possibilities (or at least, I think these are distinct possibilities -- I don't really know enough about statistics to know if they're built into the above). Namely:

• There was something systemically wrong in the polling model, that persistently benefits Republicans.

For example, that Republicans are always undercounted in polls now because of some sort of Bradley Effect. This is the nightmare scenario, because it suggests that Republicans will consistently outperform the polls over time. If the GOP starts pulling out win after win in close races where maybe they were thought to be a bit down, we have to start wondering about this.

But another option is:

• There was something systemically wrong in the polling model, that does not persistently benefit any one party.

For example, suppose that the model has gotten really bad at predicting turnout among first-time voters. Maybe in 2016 Trump pulled out a bunch of never-before-voters who were really jazzed to have a White Supremacist speaking their language for the first time. But equally, maybe in 2018 first-time voters are more likely to be youngish members of the Blue Resistance. This skew doesn't necessarily cut one way or the other -- it could benefit Democrats or Republicans. And this is the story that probably needs to be told if Democrats are to take back the Senate.