Who will run for Ohio’s Senate seat in 2022?

On Monday, Ohio Senator Rob Portman made the surprise announcement that he will not be running for a third Senate term in 2022. The Republican – at one point considered a possible running mate for Mitt Romney in 2012 – blamed his decision to retire on “partisan gridlock” in Washington preventing legislation from being passed.

Portman is one of the more moderate GOP Senators, and has gained a reputation in Washington for his bipartisan credentials, and has enjoyed a positive relationship with his fellow Ohio Senator, Democrat Sherrod Brown.

The 2022 midterms will be a key test for the Democrats, who currently have control of both the Senate and House of Representatives, but with the slimmest of majorities. The Republicans need to gain just one seat in the Senate – currently tied at 50-50 – and just five seats in the House to wrest control from the Democrats. Because of this, and with Portman’s retirement, Ohio’s Senate race will be far more crucial for both parties.

Ohio’s politics have been trending to the Republicans in recent years, and so this will likely give Portman’s successor an advantage in the race. But success or failure in an election can sometimes come down to the candidate. In this post, let’s consider some candidates from both parties who may look to succeed Portman in the Senate.

First up, for the Republicans:

Jim Jordan

The Representative for Ohio’s 4th District, Jim Jordan is a high-ranking member of the House Republican Party. He previously served as chair of the House Freedom Caucus, and as Ranking Member of the House Oversight Committee and House Judiciary Committee. Jordan was also a close ally of former President Donald Trump – having been awarded the Presidential Medal of Freedom by Trump at the end of his term – and so Jordan’s candidacy would give more strength to the pro-Trump wing of the Ohio Republican Party. There had been some talk of Jordan running for Ohio Governor in 2022, mounting a primary challenge to Mike DeWine; however, a vacant seat in the Senate would be an easier target. Jordan has not yet commented on whether or not he will run.

Bill Johnson

Johnson, the Representative for Ohio’s 6th District, has expressed interest in running for Senate. A former US Air Force veteran, Johnson occupies a district which covers a swathe of Appalachian Ohio running the length of the Ohio-West Virginia border. This area was once heavily Democratic, sending former Ohio governor Ted Strickland to Congress for several years. While not as vocal in his support for Trump as Jordan was, Johnson still voted with Trump 100% of the time during the 117th Congress from 2019-2021, and holds a fairly consistent set of conservative viewpoints. However, Johnson also represents a heavily blue-collar district, and so he could be a good candidate to appeal to different sections of the party.

Jim Renacci

The former Representative for Ohio’s 16th District could try and make another run for the Senate, having run unsuccessfully against Sherrod Brown in 2018, losing out by seven points. However, Renacci did not mount a particularly strong challenge to Brown in a state with a noticeable Republican trend, and so there may be other candidates in a better position to take up Portman’s vacant seat. Furthermore, Renacci has been critical of Republican Governor Mike DeWine, and – like Jim Jordan – has hinted that he could launch a primary challenge against DeWine for the Ohio Gubernatorial election, which will also be held in 2022.

Jon Husted

Ohio’s Lieutenant Governor has risen through the ranks of Ohio state politics; he was first elected to the Ohio House of Representatives in 2000, becoming House Speaker five years later. After a stint in the State Senate, Husted became Secretary of State, finally being elected Lieutenant Governor on Mike DeWine’s ticket in 2018. Husted, a family man and former University of Dayton football player, has expressed interest in even higher office than where he currently is, although he might not be keen to bail on DeWine ahead of his gubernatorial re-election campaign. His reputation as a fiscal conservative might help, but he has drawn the ire of the right wing of the party due to DeWine’s approach to the Coronavirus pandemic.

Frank LaRose

Ohio’s Secretary of State, who has been in the role since 2019, could also be destined for higher office. One of the more difficult jobs LaRose has had as Secretary of State has been overseeing Ohio’s voting system, and he has been critical of suggestions of electoral fraud connected to the 2020 Presidential Election. Long considered a rising star of the Ohio Republican Party, LaRose has been highly rated by conservative organisations such as the American Conservative Union. However, LaRose – along with Husted – may be seen as a candidate from the Ohio Republican establishment; the pro-Trump wing of the Republican Party has almost been at war with Governor DeWine over his Coronavirus pandemic strategy, and DeWine’s opponents will likely push to keep establishment candidates out.

So while a number of potential Republican candidates have been suggested, the Ohio Democratic party does not have the same plethora of names available to them these days. However, here are some of the more likely candidates whom the Democrats might turn to:

Tim Ryan

Tim Ryan has been the Representative in Northeast Ohio since 2003, representing the 13th District since 2013. Ryan’s district covers the cities of Youngstown and Warren, as well as eastern parts of Akron. The 47-year-old, who briefly ran for the Democratic nomination for President in 2020, seems like the obvious choice for the Democrats; Mahoning County, which flipped to Donald Trump in 2020, is partly in Ryan’s district, and if Ryan can win the Senate seat then it will show that Democrats can still win with voters who may have drifted towards Trump in a state which is moving away from the Democrats. Ryan has said he is “looking seriously at” the idea of running, and could be a safe and sane choice for the party.

Nan Whaley

The Mayor of Dayton first rose to national prominence following the 2019 shooting at Ned Pepper’s Bar in downtown Dayton, for which she led mourning and called for greater gun control. Whaley previously ran for the Democratic nomination for Governor in 2018, but withdrew and endorsed eventual nominee Richard Cordray. Whaley, who campaigned for Pete Buttigeig in 2019 and 2020, has said that she is mulling a run for Senate; she wouldn’t be the first Democratic mayor of a medium-sized city to enter the national political stage.

David Pepper

The outgoing chair of the Ohio Democratic Party has also been named as a possible candidate for Senate. However, he is one of the less likely candidates. Pepper served brief stints on Cincinnati City Council and the Hamilton County Board of Commissioners in the early 2000s, and also run unsuccessfully for a number of offices. He leaves the chair of the Ohio Democratic Party at a difficult time, with the party having been on the backslide in Ohio during his time in the chair.

While Ohio as a state has been trending towards the Republicans in recent years, that is not to say that they will have an easy year in 2022, with not only a Senate primary but potentially a gubernatorial primary to fight through. The elections in 2022 will show which faction of the Republican Party – the Trump-ist right or the more moderate establishment consensus-builders – will become the dominant force in Ohio in the post-Trump era. For the Democrats, at this point it is too early to say how they will fare in the 2022 midterm elections. However, the Democrats will have an uphill battle if they want to claim Ohio’s other seat in the Senate; while it is often the case that seats left vacant by the incumbent are more vulnerable in elections, the trend towards the Republicans in Ohio cannot be understated. Donald Trump won the state in 2020, beating Joe Biden by eight points and ending the state’s 56-year streak of voting for the President.

If the Democrats can choose a good candidate with a broad appeal, and if they are able to run an active and engaging campaign, then they have a chance to make the race competitive. However, at this point in time, I agree with Center for Politics’s Larry Sabato; Ohio’s 2022 Senate race is still Likely Republican.

What the 25th Amendment says, and why it’s more complicated than you think

The saga of the transition of power from Donald Trump to President-Elect Joe Biden continues, in the wake of the President’s incitement of insurrection at the US Capitol and the resulting violence. Since the initial insurrection on January 6th, figures from both the Democrats and Republicans have been questioning whether Trump is capable of fulfilling the role of President in his final days in office, or if he should be removed from office to allow Vice President Mike Pence to oversee the transition period. Trump has already said he will not be attending Biden’s inauguration on January 20th.

Democrats – who will control both the House and the Senate – have already filed an article of impeachment against the President for incitement of insurrection; this article will likely be passed by the House – where a simple majority is needed – to be considered by the Senate. However, there have also been calls for Mike Pence to invoke the 25th Amendment in order to relieve Trump of his duties. But what exactly is the 25th Amendment, and what does it say?

The 25th Amendment to the United States Constitution was approved by Congress in 1965, and ratified in 1967. The Amendment formally stipulates that the Vice President should assume office in the event of the President’s death or removal from office, that the President should nominate a Vice President in the event of a vacancy, and stipulates what happens if the President is otherwise unable or unfit to fulfil the duties of office. Less than four years before the Amendment’s ratification, Lyndon Johnson became the 36th President after the assassination of John F. Kennedy. However, at that time it was only accepted convention that the Vice President would succeed a President who died in office, and there was never any formal law saying that this should happen. However, there is more to this, and so we will need to look back a bit further.

Let us look back in time to April 4th, 1841, when William Henry Harrison became the first President to die in office just 31 days after his inauguration. At that time, Harrison’s Cabinet was prepared to allow his Vice President, John Tyler, to pick up the President’s duties; however, they did not feel he should automatically be allowed to ascend to the office of President if he had not been elected to it. The Cabinet agreed that Tyler would assume the powers and responsibilities of the President, but without actually taking office as President, and so Tyler was given the title “Vice-President acting President”, as permitted by Article 2, Section 1 of the US Constitution. However, Tyler argued that the Constitution allowed him to assume the Presidency in his own right, and the Cabinet, as well as the Whig Party, backed down.[1] John Tyler was inaugurated as the 10th President of the United States two days later; he was famously referred to as “His Accidency” due to his route into the Presidency.

The death of Harrison, and Tyler’s assumption of the Presidency, set the precedent of the Vice President assuming the role of President upon the latter’s death. However, no such precedent was ever set for replacing the Vice President should that office ever become vacant. Prior to the passage of the 25th Amendment, Vice Presidents simply were not replaced if a vacancy arose, and the President would simply continue on his own. Between 1789 and 1967, vacancies occurred in the Vice Presidency seven times, either through death or resignation, along with a further seven vacancies which arose when the sitting Vice President ascended to the Presidency. It wasn’t until the ratification of the 25th Amendment in 197s that the formal protocol for replacing the President and Vice President was put in place. Richard Nixon became the first President to fill a vacancy in the Vice Presidency under the 25th Amendment, appointing Gerald Ford to the office in December 1973 following the resignation of Spiro Agnew (Ford would, the following year, become the first President to assume office formally through the 25th Amendment after Nixon’s resignation; Ford appointed Nelson Rockefeller as his Vice President).

In the case of Mike Pence invoking the 25th Amendment to remove Trump from office, he would need to rely on Section 4, Part 1 of the 25th Amendment, which reads as follows:

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

So in this case, Pence could, with the support of the majority of Congress, state that Trump, due to his incitement, is unfit to discharge the duties of his office. However, this is where things get a bit more complicated.

Firstly, we have a similar conundrum to the one which John Tyler and the Harrison Cabinet faced in 1841: Amendment 25, Section 4, Part 1 only stipulates that the Vice President “shall immediately assume the powers and duties of the office as Acting President“; it does not say that the President will be removed from office outright, just that the Vice President would assume the duties as Acting President, as the Harrison Cabinet hoped to achieve with Tyler. This distinct lack of clarity means that Trump could still remain in office until Biden’s inauguration, but at least without access to the nuclear codes. However, it gets more complicated still: Amendment 25, Section 4, Part 2 states the following:

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

To summarise this part, if Donald Trump was relieved of his duties under the 25th Amendment, he can state in writing to the House and Senate that he is, in fact, fit and able to carry out his duties (essentially appealing against the Amendment), and then he would be allowed to continue his duties. Mike Pence and Congress would then have four days in which to re-affirm that Trump was unfit for office. After that, both the House and Senate would have to vote with a two-thirds majority that Trump was unfit for office, at which point he would once again be relieved of his duties, and Pence would resume the role of Acting President. However, we must bear in mind that, after all this process, Pence would still only be Acting President, and Trump would still not necessarily be removed from office. We must also bear in mind that, with little more than a week at the time of writing until Biden’s inauguration, there is not much time for Mike Pence and Congress to go through the process.

The 25th Amendment was intended to formalise the protocol for what happens when the office of the Presidency becomes vacant, or what should happen when a President is unable to fulfil his duties; it was not intended as another process by which the President can be easily removed from office in the event of high crimes and misdemeanors. If Mike Pence, Nancy Pelosi and Chuck Schumer simply wished to minimise the amount of damage Donald Trump could do in the final days of his presidency, then invoking the 25th Amendment would be suitable, although Trump could turn it into a fight if he wanted. If they were keen to actually remove him from office, then impeachment would be the better route.

An article of impeachment has been submitted against Donald Trump; assuming the House of Representatives votes to impeach him, Trump will become the only President in US History to be impeached twice by the House. And if there is enough appetite among Senate Republicans to convict Trump – perhaps those looking for a final opportunity to cut the cord between Trump and the Republican Party – then there could still be time for a final insult to be delivered to the 45th President.

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[1] Dinnerstein, Leonard, ‘The Accession of John Tyler to the Presidency’ in The Virginia Magazine of History and Biography, Vol. 70, No. 4 (October 1962), p447-45

Donald Trump will go down as the worst President in American history

I am writing this post having spent some time reflecting on yesterday’s scenes at the US Capitol Building in Washington DC: a militia – some armed – in support of President Donald Trump stormed and ransacked Congress, forcing elected representatives into hiding, threatening congressional aides and staff, and declaring President Trump the rightful winner of the 2020 Presidential Election. This attempted coup was staged on the day that Congress met to ratify the results of the November election, as is required of the Congressional representatives by the US Constitution.

The militia – or thugs, traitors, rioters, and so forth, as they have alternatively been named – are clinging to baseless conspiracy theories of voter fraud: that there was foul play during the recent Presidential Election that caused the President to lose his re-election bid in states such as Pennsylvania and Georgia – states which narrowly flipped to Democrat Joe Biden – as well as the campaign as a whole. It is not enough that several officials, both elected and appointed – including former Attorney General William Barr and numerous Republican Secretaries of State throughout the individual states – have said that there is no proof of any voter fraud, however: even Trump has been promoting these very conspiracy theories himself.

All of this came to a head yesterday with the traitors’ attack on the Capitol. As I write this, one person has been killed, and a Confederate flag has been paraded through the halls of the Capitol, something not even seen during the Civil War.

Yesterday, many Republican politicians were seemingly lining up en masse to turn their fire on the occupant of the White House, pinning much of the blame on him for inciting the violence, including telling the so-called “Proud Boys” – one such group of far-right Trump supporters – to “stand back and stand by”. During the day yesterday, it also appeared that Trump and Vice President Mike Pence’s partnership all but dissolved: Trump threw his Vice President under the bus, saying in a now-deleted tweet that the Vice President lacked courage for refusing to block the ratification of the election results. For himself, Trump said in another now-deleted tweet (social media giants have banned Trump for at least the remainder of his term): “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!”

It is quite possible that Donald Trump will go down as the worst President in US History, and what is alarming is that it would largely be based on his actions and words since losing the 2020 Presidential Election. To evaluate this, let us consider three other Presidents who vie for the not-so-coveted spot of worst President in History.

Going chronologically, we have Franklin Pierce, the 14th President who served from 1853 to 1857. Pierce, a Democrat from New Hampshire and a popular general in the Mexican-American War, helped to contribute to the events that led to the Civil War. Pierce, who was an anti-abolitionist, is perhaps most infamous for his signing of the Kansas-Nebraska Act; the Act, which created the states of Nebraska and Kansas, also overturned the Missouri Compromise, which banned slavery anywhere north of the 36°30′ Parallel (the Arkansas-Missouri border), except for the state of Missouri itself. Pierce also enforced the Fugitive Slave Act from 1850, which forced free states to return escaped slaves to their masters. Pierce is noted for his pro-South bias during the lead-up to the Civil War (Pierce was “always looking to placate the South”, writes Paul Finkelman[1]), and appointed would-be secessionists to his cabinet, including future Confederate President Jefferson Davis as his Secretary of War. Throughout his single term as President, and while he ultimately opposed the Civil War and acted in the interest of preserving the Union, Pierce was known as a President who was on the side of slave-owning factions.

Franklin Pierce failed to receive re-nomination for a second term, and the Democrats nominated James Buchanan in his place; Buchanan served as the 15th President from 1857 to 1861. Buchanan had a respectable political career behind him, both as a Senator and Representative from Pennsylvania, as Secretary of State under James K Polk, and as Minister to the United Kingdom; there is no reason why Buchanan should not have been a good President. However, he is the President most blamed for the nation’s spiral into civil war, and this blame is not misplaced: it was largely through his own incompetence and failure to act that this happened. Buchanan set the Southern states on the route to secession by allowing Southern influencers who wanted Kansas to be a slave state to walk over him. What’s worse, Buchanan, in an address to Congress in 1860, blamed “the agitation at the North against slavery” for the events leading to the secession of South Carolina from the Union in December of that year. As a President, James Buchanan simply failed.

The third President I am going to consider is Andrew Johnson. Johnson was a Democrat from Tennessee who was elected on the National Unity ticket with Abraham Lincoln in 1864, and became the 17th President after Lincoln’s assassination on April 15, 1865. Johnson, a former slave owner, was a defender of slavery and largely botched reconstruction efforts through both his leniency towards and eagerness to re-admit former Confederate states to the Union. Andrew Johnson was also known to be a difficult character with whom people struggled to work. Johnson was also the first President to be impeached: in 1868, Johnson violated the Tenure of Office Act by firing his Secretary of War, Edwin M. Stanton, without Congressional approval, such was the law at the time. However, despite the law of the day, in hindsight it seems unfair that dismissing a Cabinet Secretary should have been an impeachable offense, considering how many cabinet members Trump has dismissed. Overall, Johnson put his entire life and career at stake in the name of national unity, which is why I consider him the most unfairly included of the three Presidents here mentioned. However, his general racism and leniency towards the South made him the architect of his own downfall.

So what sets Donald Trump apart from Pierce, Buchanan and Johnson? Ignoring the poor decisions and character flaws of these men, their main concern was preserving the Union and avoiding war, or a return to war in Johnson’s case. Their failure to adequately stand up to racism and slavery is a shame on their legacies, but never once did any of them – not even Andrew Johnson – seek to manipulate or overturn the result of any election once it had happened (although Johnson – when he lost the 1864 Democratic primary to Horatio Seymour – perhaps did not accept the results of the primary or subsequent Presidential Election gracefully, he did at least accept them, or rather did not object to them). Whatever their incompetencies were while in office, they never sought to undermine democratic elections in order to hold on to power for themselves. Donald Trump, in shouting baseless conspiracy theories about voter fraud and inciting protest against Congress ratifying the results of the Electoral College, and in seeking to undermine the American democratic process, and calling on thuggish traitors loyal to his cult of personality to keep him in power, has surpassed all the worst mistakes and poor decisions these three men made. In my opinion, Donald Trump is the worst President in American history.

Some of Donald Trump’s supporters – both current and previous – have expressed admiration for some of his policies, including delivering promised tax cuts, for not entering in to any new wars, for his input in the de-escalation of tensions in the Middle East, and for being a voice for those left behind and ignored by the coastal elites. Many good people voted for Trump in November – as well as in 2016 – in good faith. However, is there any policy or position – no matter how successful or admirable – which can subtract from the inciting of anti-American and anti-democratic violence and overthrow?

As a historian, I generally feel that you cannot make a true assessment of a President’s tenure or legacy so close to the end of a President’s term, much less so when that President is still in office. However, I struggle to fathom any circumstance in which future historians can rehabilitate the act encouraging overthrow of a nation’s democratic institutions. As it stands now, with less than two weeks of his Presidential term remaining, it is not certain whether Trump will survive even that: articles of impeachment are already being drawn up against Mr Trump – for the second time in his Presidency. If it comes to another impeachment vote, or Vice President Mike Pence invoking the 25th Amendment against his former boss, his removal from office will be perfectly valid.

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[1] Finkelman, Paul, ‘Franklin Pierce’, in Gormley, Ken, ed., The Presidents and the Constitution, Volume One From the Founding Fathers to the Progressive Era, 2020, New York: NYU Press, p181-193     

What to watch out for in the Georgia Senate runoffs

Tuesday, January 5 will see the final election of the 2020 election season take place: the runoff votes for the United States Senate elections in Georgia. The state of Georgia saw elections take place in both of its US Senate seats: the regular cycle election for the Class II seat currently held by David Perdue, and a special election for the Class III seat currently held by Kelly Loeffler.

Georgia operates a runoff system in its elections: if no candidate receives 50% of the vote in an election, then the top two candidates will advance to a runoff election, as was the case in both Senate races. In addition, Georgia state law dictates that special elections are conducted as non-partisan blanket primaries, meaning that multiple candidates from the same party compete against each other to advance to the runoff.

In Tuesday’s special election, Loeffler, the Republican incumbent who was appointed by Governor Brian Kemp on January 6, 2020 following Senator Johnny Isaakson’s resignation, saw off a strong challenge from Congressman Doug Collins for a spot in the runoff. Loeffler will face Democrat Rev. Raphael Warnock in Tuesday’s runoff; Warnock topped the blanket poll in November with 32.9% of the vote to Loeffler’s 25.9% and Collins’s 20.0%.

Perdue, meanwhile, will face Democrat Jon Ossoff in the regular cycle election, both candidates having been denied a majority of votes by the Libertarian candidate. Perdue is seeking a second term in the Senate, whereas this is the second special election in the state of Georgia that Ossoff is contesting: he was the Democratic candidate in the 2017 special election in Georgia’s 6th Congressional District, losing the runoff to Republican Karen Handel.

Georgia’s role in the 2020 Presidential Election has been both noteworthy and notorious: Joe Biden’s victory here in November’s Presidential Election – the first for a Democrat since 1992 – by just 12,000 votes helped secure him enough Electoral College votes to deny Donald Trump a second term. However, it has also been home to electoral controversy never before seen as part of the President’s campaign against the election results, most recently when President Trump pressured Georgia Secretary of State Brad Raffensperger to “find” additional votes for him.

With Joe Biden’s victory in the Presidential Election, the Georgia Senate runoff elections are crucial for both parties: following November’s elections, the Senate Republicans lost two seats (Arizona and Colorado) and gained another (Alabama), giving the party 50 seats in the Senate at this time. If the Democrats can win both of these Senate seats, then the Senate will be tied (two Independent Senators caucus with the Democrats). In the event of a tied Senate vote, it falls to the Vice President to cast the deciding vote; on January 20th, the Vice President will be Kamala Harris. So while Mitch McConnell will remain the Senate Majority Leader, a loss of the two Senate seats in Georgia could effectively mean loss of control of the Senate for the Republicans. Even if the Republicans can hold just one of the Senate seats in Georgia, then holding 51 seats in the Senate may just be enough to provide McConnell with some breathing space.

So what are the polls saying? According to FiveThirtyEight’s running tally of polls from a variety of providers – some more reliable than others – gives Ossoff an average lead of 1.4 points and Warnock an average lead of 2.0 points as of January 4. This means that both races are effectively too close to call. However, the Democrats cannot afford to be complacent; there is usually some pro-incumbent unwind in particularly close elections, and the Democrats are still recovering from other Senate losses in races which they were thought to have locked in, including in Maine and North Carolina.

However, with Biden’s victory here in the Presidential Election, and significant attention being paid to Georgia’s possible new-found status as a purple state, if nothing else it would be a significant achievement for the Democrats to flip the state from a Republican trifecta with two Republican Senators and a six-Presidential Election victory streak to a Democrat state with two Democrat senators. That would be significant in itself, and may signal Georgia as a beacon in a new generation of swing states.

However, it will remain to be seen how the unique and controversial characteristics of this particular election cycle will impact the runoff votes. Are the attacks on the election results by the President and his closest supporters going to turn more reasonably-minded Republicans away from these elections, or is it going to shore up Perdue and Loeffler’s support even more? And with the Democrats back in control of the White House, will every Democrat who voted in November feel the need to turn out for Tuesday’s elections? More than three million early votes have already been cast in the runoffs, although – as with the increased turnout in November’s elections – this may not be as much assistance to the Democrats as previously thought.

Tuesday’s Senate runoffs in Georgia will draw a close to one of the most controversial and divisive election cycles of our time. On January 6, Congress will validate November’s Electoral College vote, although this has also seen a challenge from Trump’s supporters. The results of the runoff may provide short-term relief for the winning party, but with a tight Senate margin, a contested Presidential Election, and the Democrats barely maintaining control of the House of Representatives – along with reflection by both parties on where they go from here – the first two years of Biden’s presidency may well be a difficult time for both parties.

Texas v. Pennsylvania: what’s it all about?

You have likely seen in the news that another legal battle has been going on with regards to the 2020 Presidential Election result: Texas v. Pennsylvania. The case has largely been characterised as an attempt by Republicans to either block or overturn Democrat Joe Biden’s victory in November’s election. But what is the case really about?

The case of Texas v Pennsylvania – or, to use its full title, State of Texas v. Commonwealth of Pennsylvania, State of Georgia, State of Michigan, and State of Wisconsin – was originally filed by Texas Attorney General Ken Paxton on December 8. In his complaint, Paxton alleged that “government officials in the defendant states of Georgia, Michigan, and Wisconsin, and the Commonwealth of Pennsylvania…usurped their legislatures’ authority and unconstitutionally revised their state’s election statutes”. Specifically, the complaint alleged that these states unconstitutionally changed their electoral law to allow for more mail-in ballots to be issued, and that therefore it could not be known “who legitimately won the 2020 election”.

Over the next few days, the case grew in support: sixteen attorneys general – all Republicans – from other states – all of which were won by Donald Trump in November’s election – joined Paxton in supporting the motion. Later, 126 of the 197 Republicans in the US House of Representatives announced support for the case, as did – oddly enough – the Pennsylvania House of Representatives. A handful of Governors, Senators, as well as President Donald Trump himself voiced support for the case.

The case ultimately failed, as the Supreme Court of the United States declined to hear it. Conservative justices Clarence Thomas and Samuel Alito additionally said that, while they felt the court had a duty to hear the case, they would have decided against Texas if the case had been heard. The case was dismissed on the grounds that Texas, being a separate state to Pennsylvania, Michigan, Georgia and Wisconsin, was a disinterested party in the case and could not bring about a case regarding another state’s practices which it was not party to.

While the case of Texas v. Pennsylvania was, to paraphrase Paxton, a concern over unconstitutional changes in electoral law which likely allowed voter fraud, some commentators have dismissed the case as simply an attempt to overturn, or at the very least stall, the result of the 2020 Presidential Election. Devin Dwyer of ABC News described the case as “brazen eleventh-hour attempt by the state of Texas and Republican allies of President Donald Trump to throw out millions of votes in four states and overturn Democrat Joe Biden’s victory”. Elsewhere, Bill Pascrell, a House Democrat from New Jersey, called on House Speaker Nancy Pelosi to refuse to seat any of the 126 House Republicans who supported Texas v. Pennsylvania.

The case has driven a deep divide through the Republican Party, while many high-ranking Republicans, including House Minority Leader Kevin McCarthy – signed on in support of Texas v. Pennsylvania, many big names in the party have criticised the case. Texas Senator John Cornyn, part of the Republican Senate leadership, said of the case “I frankly struggle to understand the legal theory of it”. Utah Senator and 2012 Presidential candidate Mitt Romney described the case as “madness”. In Utah, governor Gary Herbert and Governor-elect Spencer Cox condemned state Attorney General Sean Reyes’s decision to support the case, saying he did not consult either of them, and they did not understand his motivation for doing so. It remains to be seen if these divisions will go on to define the Republican Party throughout the upcoming Congress, and Biden’s term as President.

However, the case has now been dismissed, and it seems like Donald Trump’s supporters’ final Hail Mary pass to stall the result of the election has fallen through. There is now only one event to go to seal the result of the election: the Electoral College meets on December 14th.

Is this the end for the death penalty in Ohio?

Ohio Governor Mike DeWine this week announced that the state would no longer be using lethal injection as an execution method for its death row prisoners. Issuing an unofficial moratorium on capital punishment for Ohio, DeWine said that the lethal injection appeared to be “impossible from a practical point of view”.

DeWine’s announcement comes at the end a difficult period in Ohio’s lethal injection saga: in 2016, it was announced that Ohio would adopt a new three-drug lethal injection following the botched execution of Dennis McGuire in 2014. The two-drug injection the state had been using did not work, meaning McGuire’s painful execution was drawn out over more than 15 minutes. However, the new three-drug injection was then itself blocked by a judge on the grounds that it was not humane enough. Since then, Ohio has struggled to find either a suitable alternative to the injection, or a company who can supply it.

With an injection seemingly impossible to procure, and pharmaceutical companies seemingly unwilling to provide drugs to the state of Ohio for use in executions, it seems as if the role of the lethal injection in Ohio may be reaching a natural end. Indeed, DeWine said in the same announcement that Ohio state lawmakers would need to choose a different method of capital punishment before any more executions can take place.

However, there is a problem: lethal injection is the only execution method permissible under Ohio law. The electric chair has not been used in Ohio since 1965, and was deemed cruel and unusual punishment in 2001. Hanging was the primary method of execution in Ohio until the introduction of the electric chair in the state in 1897. In addition, Ohio has never used firing squads or gas chambers as execution methods. With many other methods of execution now considered archaic, it is difficult to imagine a situation in which any of these methods would be signed into Ohio law.

In order to continue executions, Ohio lawmakers would need to introduce – or re-introduce – a new execution method in law. However, Governor DeWine does not think the hunt for a new execution method will be a priority for the Ohio State Legislature. So without an execution method on the books for Ohio, with the state unlikely to see any executions carried out at least during 2021 (and quite possibly beyond), and with no rush to introduce a new method of execution, it seems as if capital punishment in Ohio could be mothballed: execution could remain part of state law, but without any legal means of action.

However, what would be the point of mothballing the death penalty in Ohio? Why not just abolish it entirely? A September 2020 Gallup poll found that 55% of Americans favour the death penalty for convicted murderers, compared to 43% who oppose it. While the poll shows more people still approve of capital punishment, this is still the lowest approval percentage since March 1972, down from an 80% approval in September 1994. Only in March 1966 did a plurality of respondents oppose the death penalty.

While support for the death penalty has been waning over the last 25 years, simply mothballing the death penalty would avoid the political and legal wrangling of trying to abolish the death penalty. However, with an increasing number of lawmakers in Columbus on both sides of the aisle are voicing their opposition to capital punishment on both humanitarian and economic grounds, this situation offers Governor Mike DeWine an opportunity to push for a cause that an increasing number of conservatives are calling for: putting an end to capital punishment in Ohio.

Mike DeWine has himself said that today he is “much more skeptical about whether [capital punishment] meets…moral justification”. However, with the ongoing pandemic, and with whispers about possible primary challenges and impeachment attempts against DeWine from the more conservative wing of the GOP, the governor may have bigger fights at this time. It could still be a way off yet, but this week the end of the death penalty in Ohio seems like a distinct possibility.

Why hasn’t Donald Trump left the White House yet?

It has already been just over three weeks since the 2020 Presidential Election. Joe Biden, the President-Elect, is naming his Cabinet picks, states are ratifying their vote totals, and it finally seems as if current President Donald Trump may be willing to leave the White House – even if he never concedes the election.

However, one question I am being asked, particularly by my readers in the UK, is why Donald Trump is still in the White House when he lost the election? Why hasn’t he moved out yet? The answer to these questions is actually fairly simple: he is still the President.

In the UK, following a General Election, Members of Parliament take office as soon as their constituency result is declared. This means that an incoming UK government can get to work the morning after Election Night. In America, Presidential, Congressional and other elections take place on the first Tuesday after the first Monday in November. However, most American elected officials will not take up their office until the following January.

One reason that there is a delay between the election and the start of the term is so that any remaining business in Congress can be tied up. However, another reason is that Presidential elections have historically gone on for a long time. In the early days of Presidential elections, voting sometimes took place over the course of a month. The 1796 Presidential Election, for example, took place from Wednesday, November 4th until Wednesday, December 7th that year; the reason for this was, quite simply, because counting, communicating and logistics took so much longer in the early days of the United States, rendering an “election night” impossible. The 1848 Presidential Election, won by Zachary Taylor, was the first Presidential Election to be held on a single day.

However, just as elections haven’t always been held on one day, Presidents have not always started their terms in January. From the inauguration of John Adams in 1797 up until the 1930s, Presidential terms would actually begin on March 4th; Franklin D Roosevelt in 1933 was the last Presidential election winner to be inaugurated in March. It wasn’t until the passage of the Twentieth Amendment to the Constitution in January 1933 that the formal end date for every Presidential term was set in January; the Twentieth Amendment was passed to reduce the excessive amount of time between the election and the start of the term, as well as to stipulate what would happen if there was no winning candidate from a Presidential election, or if the winning candidate died before his inauguration.

Section 1 of the Twentieth Amendment reads:

The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

As a result, Roosevelt became the first President to have a January inauguration, beginning his second term on January 20th, 1937. Since then, every President has begun his term of office in January once his predecessor’s term expires; Joe Biden will begin his term as President on January 20th, 2021.

So, as much as Donald Trump might not want to leave the White House, the fact he is still there is not an act of defiance or a refusal to accept the results of the election; he still has his Presidential term to finish.

My immediate reaction to the 2020 Presidential Election

Last night, the 2020 Presidential Election finally came around. It was an exciting, unpredictable night – and it isn’t even over yet.

It has been an extremely close race – unsettlingly so – with Donald Trump and Joe Biden swapping leads in various states, and many news network being reluctant to make calls on certain races too soon. As it stands currently, Trump has secured wins in Florida, Ohio and Iowa, while Biden held on to Minnesota and New Hampshire (although Trump was leading in Virginia for some time). Joe Biden has also claimed victory in Wisconsin while I was writing this post.

However, results continue to trickle in a day later. At the time of writing, the states of Michigan, Pennsylvania, Georgia, North Carolina, Arizona and Nevada still have not been called for either Trump or Biden. Until earlier on Wednesday, Trump had been leading handily in the three so-called “Blue Wall” states which he won in 2016 – Wisconsin, Michigan and Pennsylvania – but votes still being counted have put Biden ahead in Michigan for the time being, with votes still to be counted (Trump still has a sizeable lead in Pennsylvania). At the time of writing, Biden has 237 Electoral College votes to Trump’s 214.

Despite so far having flipped Wisconsin (and Nebraska’s 2nd Congressional District) from Trump so far, Tuesday’s election is hardly a success story for the Democrats: while I had largely expected polls to narrow by the election, once again there was a marked difference between the polls and the results which have been emerging. In Michigan, for example, Joe Biden currently has a 40,000 vote lead over Donald Trump out of more that 5 million votes cast (Biden has 49.6% to Trump’s 48.8%). Yet, polls ahead of the election in Michigan gave Biden an average lead of 5.5 points.

To illustrate further just how close this election is, if we assume that Biden will ultimately carry the states he is currently leading in – Nevada, Arizona and Michigan – then that will give Biden exactly 270 votes in the Electoral College: exactly the number needed to win the Presidential Election. Trump will win 268 Electoral College votes if he holds onto Pennsylvania, North Carolina and Georgia. A result like that could potentially make this the most controversial Presidential Election since 1876, when Rutherford B Hayes was awarded the victory by the House of Representatives.

A major source of the controversy would be Donald Trump himself. I have to make mention of this: Trump gave a shocking press conference in the early hours of Wednesday morning which he declared victory in states he had not won, alleged “a major fraud in our nation”, and threatened to take legal action all the way to the Supreme Court to stop legitimately-cast votes from being counted. Anchors on major news networks reacted in horror, and many of Trump’s notable supporters, including Vice President Mike Pence, former New Jersey Governor Chris Christie, and former Pennsylvania Senator and CNN panellist Rick Santorum sought to disavow Trump’s aims. If Trump ultimately emerges victorious from this election, there will likely be consequences for what he said.

However, if Biden does manage to pull off a victory in the final counting of the Presidential Election, it will certainly not be a cause célèbre for the Democrats. They underestimated the extra number of votes Trump would receive under the increased turnout, and woefully underperformed with Hispanics, as was demonstrated in Biden’s loss of Florida. The Democrats also lost seats in the House of Representatives, and failed to succeed in key Senate races, including in Maine and North Carolina. Furthermore, if Biden does win with 270 Electoral College votes, it will mean he only barely scraped home despite everything they had against Trump in the last four years: his handling of the Coronavirus pandemic, the Black Lives Matter protests, and his general rhetoric and treatment of the office of President. That is nothing to be proud of: while it is to say nothing of how he might serve as President, Joe Biden was an adequate presidential candidate at best. There will need to be much reckoning and soul-searching within the Democratic Party after today, and they will need to ask themselves how, where and why they have still failed to connect with some of their key constituencies.

I will have more to say once all the votes are counted, and I am looking forward to dissecting the results and looking at what they all mean. There will also be more to discuss on the dynamics of Washington from January – potentially with a Democratic-controlled House of Representatives and Executive and a Republican Senate. However – and whether Donald Trump or Joe Biden is the eventual winner – this has been the most unpredictable, controversial, surprising and exciting Presidential Election of my life so far.

Edit: Michigan was called for Joe Biden at around 4:15pm ET on Wednesday November 4th after this article was finished.

My final projection for the 2020 Presidential Election

Today is Monday November 2nd, the day before the 2020 Presidential Election. Everything in the last few months – polls, debates, rallies, campaign stops and barbs traded – has led up to this moment. We will soon know who will be inaugurated as President of the United States on January 20th: will President Donald Trump be sworn in for a second term, or will former Vice President Joe Biden look to undo the last four years and return the political environment to its pre-Trump days?

I have made a couple of projections now, and to reach this year’s outcome I reflected on the projection I made for the Presidential Election four years ago. and while that projection is not to dissimilar to the one I am making today, I was wildly wrong four years ago. So I am by no means totally confident that my 2020 Presidential Election projection will be accurate, but here goes…

Regular readers of my blog might notice that my final projection is the same as my previous projection: Biden wins the election in my projection with 306 votes, compared to 232 for Trump, a reverse of the Electoral College totals from the 2016 Presidential Election.

It was very difficult to finalise my projection for this election (I was originally going to publish three outcomes in this post, and say that the result would be one of them). That said, I still think the election will be close, at least in terms of the Electoral College. While Biden has maintained a consistent and solid lead in national popular vote polling, we all know that where the votes are cast is just as important as how many votes are cast.

I don’t think we’re going to see any major surprises or outliers on Tuesday night (think Obama winning Indiana in 2008); consequently, I don’t think Joe Biden and the Democrats will be able to flip Texas this time around, although they may come within a point or two of doing so. Georgia is another close call which I think they will just miss out on.

In the final days of election campaigns, there is usually a small amount of unwinding of surges in candidates’ support. To that end, I do think there will be a bit of unwinding of pro-Biden polls in Ohio and Florida (I cannot get over my gut feeling that Trump will win Florida), as well as in Iowa (where final the Des Moines Register/Selzer poll showed a 7-point lead for Trump, along with Senator Joni Ernst also pulling ahead), and I think Trump will likely hold these three states, albeit narrowly in some cases.

However, Biden is carried to victory – if this projection is correct – by his sustained polling leads in Arizona (which would be the first time a Democratic Presidential candidate has won the state since 1996) as well as the three “Blue Wall” states – Michigan, Wisconsin and Pennsylvania – that Trump was able to flip in 2016. A CNN/SSRS poll released on October 31st gave Biden leads in Arizona, Michigan and Wisconsin, as well as North Carolina; I am favouring Biden in North Carolina, but by the slimmest of margins. I am also favouring Biden in both Maine’s 2nd Congressional District – where the Democrats are leading in both the House and Senate races – and Nebraska’s 2nd District.

There is still one unknown we still have to contend with this time around, and that is the unprecedented amount of early, absentee and mail-in votes. Ohio is counting its early votes before the polls close, whereas some counties in Pennsylvania will start counting early votes after all the other votes have been counted. This means that we might not get all the results on Tuesday night, and some declarations may spill into Wednesday. Furthermore, it is not certain how early voting totals will impact the final result. Back in 2016, early voting numbers underestimated overall Trump support in some states, and there is a risk that the candidates’ totals could be similarly misjudged this time around. Because of this, states such as Arizona and Pennsylvania are by no means foregone conclusions for Biden.

Finally, just as a disclaimer against all of the above: I could be wrong. It is worth remembering just how precarious this election is: if it turns out that the polls have underestimated the Trump support, or Biden’s leads unwind in Arizona and North Carolina on the final day, and if late campaigning gives Trump a last-minute boost in Pennsylvania, then these three states will be enough to tip the President back to the right side of 270 Electoral College votes. And of course, if the election is decided on the back of one or two extremely close states, then the legal fight for the election could go all the way to the Supreme Court.

If we learnt anything from the 2016 Presidential Election, it’s that there are no foregone conclusions, and projections can be wildly wrong. The fight for the White House isn’t over yet.

My projections for the Senate and House of Representatives

It’s important to remember that, whomever is elected President on November 3rd, they will still have to contend with the Senate and House of Representatives, and the party and leaders who control them. A Senate and House under the control of the opposing party can make a President’s job more difficult – although there is no guarantee that it would be any easier if they were the same party – and Presidents have to be able to reach across the aisle and work with both parties to pass legislation.

Elections to the House of Representatives and to one third of the seats in the Senate are also taking place on November 3rd alongside the Presidential Election. Today I am going to give my final thoughts as to the way I think these elections might go.

Let’s look at the Senate first. The Senate has been under Republican control since 2015, after Mitch McConnell’s party gained control from the Democrats after a series of decisive victories in the 2014 midterm elections. This time around, however, the Senate Republicans are on the defensive, and in a precarious position.

The Republicans currently hold 53 out of 100 seats in the Senate, so a loss of three seats would lead to a tied Senate, while a loss of four seats would lead to loss of control of the Senate. Unfortunately for the Republicans, the Democrats are leading in a number of key Senate races. In Arizona’s special election, former astronaut Mark Kelly has been enjoying consistent poll leads over Republican Martha McSally for some time, while in Colorado, a state which has been trending more Democratic, Cory Gardener’s loss to former Governor John Hickenlooper seems like another likely Democrat pickup.

However, the Democrats also have a good chance to expand their Senate territory elsewhere in the country: in North Carolina, Cal Cunningham is hoping to unseat Thom Tillis, whilst attempting to keep his campaign afloat following recent revelations regarding his personal life; Cunningham currently has an average 1.6-point poll lead according to RealClearPolitics – way down from leads of between 6 and 10 points he had previously been enjoying. Meanwhile, in Maine, Sara Gideon could be set to deny Susan Collins a fifth Senate term; Collins has not led in a major poll so far this year.

So there are four potential seats for the Democrats to pick up in order to flip the Senate. However, a good night for them could leave the door open for further pickups: in Iowa, Theresa Greenfield has been leading incumbent Republican Joni Ernst in a number of major polls. However, Greenfield has no previous elected experience, and if Donald Trump is able to hold onto the state at the Presidential level, this may count against her. Elsewhere, popular Montana Governor Steve Bullock is another hopeful for a Democrat gain, and the runoff system in Georgia’s Senate elections could give the Democrats a chance to sneak in.

However, I am going to keep my estimates for the Senate elections more conservative. If the Democrats pick up four seats – Arizona, Colorado, Maine and North Carolina – while losing the seat in Alabama lent to Doug Jones in 2017 to keep Roy Moore out, that would give the Democrats 48 seats in the Senate to 50 for the Republicans. Along with the two independent Senators who caucus with the Democrats, that would leave the Senate with a 50-50 split, meaning that the Vice President – be that Kamala Harris or Mike Pence – would be more likely to have to step in to break tied votes.

Now for the House of Representatives. The House has been under Democratic control since January 2019, when the party regained control of the House in the November 2018 elections after 8 years as the minority party. This time around, I don’t actually expect much change either way, the Democrats and Republicans may trade a couple of seats here and there: the GOP might pick up a couple of rural districts in Republican-trending areas, such as Minnesota’s 7th District, where Collin Peterson is running for a 15th term, or perhaps one of the Democrats’ districts in Iowa. Meanwhile, the Democrats could set their sights on a couple of suburban seats where the incumbent Republicans are not running for re-election, such as Texas’s 22nd and 24th districts.

However, I am not expecting a lot of movement in the makeup of the House of Representatives after Tuesday’s election, save to say that the Democrats will retain control. As a ball park figure, I would suggest that the Democrats will win around 238 seats in the House, with the Republicans winning 197. Nancy Pelosi would then serve another term as House Speaker, barring any challenges.

^{A map showing a possible makeup of a D238 – R197 House of Representatives}

We have just days now to go until the elections on November 3rd, and there is still everything to play for. Aside from the Presidential Election which is far from certain, the makeup and control of both the Senate and the House of Representatives hang on some very close races. These maps serve as a reminder of how much is at stake in Tuesday’s elections.