Midterm Wildcards to Watch

Almost four and a half months out from Election Day, here is a list of potential October surprises that could play a role in determining the outcome. Because Republicans control the White House and both chambers of Congress, most of these developments would probably work against them politically.

The President’s Trade Wars

The United States government has been involved in an escalatory tit-for-tat feud with Canada, Mexico and the European Union on the subject of tariffs. They haven’t taken effect yet, but their impact (or lack thereof) should be known by November.  The available evidence from early news reports suggests that the tariffs imposed on the United States will specifically target states and voters Donald Trump won in the presidential election.  Here’s an example: according to the Des Moines Register, China’s tariffs on U.S. soybeans could cost Iowa farmers as much as $624 million, according to projected estimates from an Iowa State University economist.

The economy is currently at almost full employment, and there is little or nothing the U.S. government can do to stimulate it further in light of last year’s tax cut.  If it takes a tumble in the late summer or early fall as a consequence of trade wars, voters may take it out on President Trump or his party.

The Mueller Investigation

Former Trump campaign chairman Paul Manafort, who is now in jail after charges of witness tampering, will go on criminal trial in two jurisdictions in the second half of this year.  As of this writing, his trial in Virginia is scheduled to begin on July 25, and his trial in Washington DC is scheduled to begin on September 17. Assuming he goes through with both trials and does not work out a plea deal with federal prosecutors, potentially embarrassing revelations about the Trump presidential campaign could come out during the course of testimony and cross-examination in either trial.

Beyond that, it is not known if more indictments or plea deals are coming in connection with the case. Mueller’s office has been notoriously leak proof. Most reporters have gotten their scoops from talking to witnesses or lawyers involved in the case, or from keeping a close eye on the case docket for new legal filings from Mueller’s office.  Journalists and pundits who have been following the case are expecting an indictment in connection with the 2016 hacking of the Democrats’ emails and communications.

It’s unclear if the 60-day rule that James Comey ignored during the Clinton email investigation would apply here. If it does, that means Mueller can’t issue any indictments or take any other major actions in the case after early September. However, since (as far as we know) he isn’t investigating or about to indict anyone running for elected office in November, it’s possible the rule doesn’t apply. If Manafort’s DC trial begins as scheduled on September 17, assuming it takes several weeks it could potentially wrap up in October with a grand jury decision shortly after, before Election Day.

There is also an army of journalists working around the clock trying to find new scoops to report on the investigation, and they aren’t bound by any 60-day rule or fears of impacting an election.

North Korea

President Trump invested an enormous amount of political capital in his summit with Kim Jong Un, and tries to tout it as a great success that he can run on in the midterms. However, the North Koreans have a long reputation for not upholding their end of previous bargains. Most North Korea observers wouldn’t count on much of anything on the basis of Kim Jong Un’s word, though it is unlikely he would do anything to antagonize Trump in light of what was a very successful summit from the North Korean perspective.

For what it’s worth, North Korea has previously done three nuclear tests (2006, 2016, 2017) in the weeks leading up to U.S. elections, although there is no evidence that the timing was politically motivated in terms of influencing a U.S. domestic audience. According to the Nuclear Threat Initiative, the 2016 test coincided with the 68th anniversary of North Korea’s founding.

Separation of Immigrant Families

This story has exploded within the past week or so and is only going to get bigger. The optics and morality of this policy have been condemned by members of both parties. Former first lady Laura Bush explicitly compared it to Japanese internment policy during World War II.  Making it worse is the messaging incoherence of the administration, which is simultaneously arguing that 1) it’s the Democrats’ fault (President Trump), 2) it is a policy that is explicitly meant to deter illegal immigration (Attorney General Jeff Sessions, White House aides Stephen Miller and John Kelly), and 3) there is no policy (Secretary of Homeland Security Kirstjen Nielsen). The optics of members of Congress being blocked from inspecting facilities are also not good. Remember, they have a right and responsibility to do so because these facilities are run by the Department of Health and Human Services.

More of these detention centers are being set up, just as peak summer temperatures are about to hit in border states like Texas. One senior administration official projected that as many as 30,000 children could be in these facilities by the end of the summer. If this situation isn’t resolved before November, assume that like the airports during the Muslim ban controversy, these detention centers will become flashpoints for public protests.  There are also key elections in border states which could be impacted by the politics of this issue – House races in California, the Senate and governor’s races in Arizona, and the Senate and House races in Texas.

School Shootings

Historically, young voters have been the least reliable age demographic in getting out to the polls. That may change this year in no small part because of the efforts of the Parkland shooting survivors, who have made it their mission to take on the gun lobby and politicians who won’t pass gun control measures. They are currently focusing on registering young voters who will be of voting age for the November midterms. If (God forbid) another shooting happens during the runup to Election Day, the gun control issue could become highly salient and a very powerful closing argument.

If you want proof that the Parkland students have had an impact in reframing and reshaping the gun control debate in ways that others haven’t, here it is: the NRA took down from its website the old grades it had given to lawmakers.

Supreme Court Vacancy

As was the case in 2016, a surprise vacancy on the Supreme Court – especially if it’s swing justice Anthony Kennedy or a liberal justice like Ruth Bader Ginsburg – would fire up conservative voters who might otherwise have stayed home. Few issues mobilize conservatives like judges, which will be one of Donald Trump’s lasting legacies long after he leaves the presidency.

Supreme Court Orders Review of Virginia House Districts for Racial Gerrymandering

The Supreme Court ruled 7-1 that the Eastern District Court of Virginia used “an incorrect legal standard to determine that race did not predominate” in 11 of the 12 Virginia House of Delegates districts in the case in the aftermath of the 2010 census.  Voters in those redrawn districts filed suit arguing that the new districts violated the Equal Protection Clause of the Fourteenth Amendment.  The case – Bethune Hill v. Virginia State Board of Elections – was remanded back to the Eastern District Court of Virginia “for further proceedings consistent with this opinion.”

The decision comes eight months before gubernatorial and legislative races in Virginia. According to the Richmond Times-Dispatch, “Anti-gerrymandering advocates hailed the ruling as a victory for efforts to produce a more competitive political map, though the Supreme Court chose to leave it to a U.S. District Court to rehear the case, applying a different legal standard.”

Democratic election attorney Marc Elias, who represented the plaintiffs in the case, took to Twitter to call the decision a “major redistricting victory… Big win against GOP racial gerrymandering.”

Read more details about the case from SCOTUSblog.

UPDATE: Here’s a sampling of reactions to the court decision.

Democratic National Committee Chairman Tom Perez:

“Voters should choose their elected leaders – not the other way around. But for years, Virginia Republicans have schemed to change the state’s legislative districts to rig elections in their favor. But efforts to combat these extreme partisan tactics are succeeding at every level. The Supreme Court’s decision this morning and a  key state court decision yesterday have put us firmly on the path to ensuring Republican gerrymandering efforts will fail. We must continue to fight back against discriminatory efforts to block access to the ballot box and that is why I have vowed to create a fully staffed Voter Empowerment and Protection Office so that we can ensure that disenfranchisement through gerrymandering becomes a thing of the past.”

Democratic Legislative Campaign Committee Executive Director Jessica Post:

“Virginia Republicans illegally silenced the voices of African-American voters, and today’s ruling is a step towards giving all Virginians fair representation in their government,” said Post. “The district maps engineered by Republican legislators diminished the voices of specific groups of voters just to protect GOP power. This court decision, along with recent rulings in Alabama and Wisconsin, mark important progress in the fight to enfranchise voters and dismantle artificial Republican majorities, and these decisions serve as incontrovertible evidence that Republicans can’t be trusted to protect voters’ rights in the next round of redistricting. DLCC continues our fight to elect more Democratic lawmakers to dislodge map-drawing pens from the grip of the GOP.”

Virginia House Democratic Leader David Toscano and Caucus Chair Charniele Herring:

“Virginia is one of the most gerrymandered states in the nation, and we applaud the court’s decision as a critical step toward correcting a system that is rigged. Voters should choose their representatives, but in Virginia, it’s the other way around. Seventy-four percent of Virginians support giving control of redistricting to an independent commission, and we saw unprecedented public demand during the last legislative session for meaningful reform. We look forward to the continued progression of this case, and we renew our commitment to ending gerrymandering in Virginia.”

There are no public statements from the Republican National Committee, the Republican Party of Virginia, or the Virginia House Republican Caucus as of this writing. Any comment or statement they make will be added in a future update.

UPDATE II: Marc Elias points out this Election Law Blog analysis of the ruling by Richard Pildes:

As someone who litigates these cases and has written extensively about racial redistricting, I consider today’s decision a major new precedent with broad implications, not just for racial gerrymandering issues, but for partisan gerrymandering ones potentially as well.

On racial gerrymandering and the Constitution, the Court’s opinion today is more forceful and clear than it has ever been that unconstitutional racial gerrymandering can occur even when a State draws districts that look regular and follow traditional districting principles.

This principle is going to make it significantly easier for plaintiffs to win racial gerrymandering claims.

UPDATE III: Virginia Governor Terry McAuliffe sent a letter to Virginia House and Senate Majority Leaders asking them to work with him to draw new district lines so that they can be in place in time for the fall elections. Here’s the key graphs:

This ruling sets the stage for protracted litigation at taxpayer-expense and further delay that will cast a shadow over our upcoming legislative elections — unless we find a more productive path forward. So today, I write to ask you and the House Republican Caucus to drop your defense of Virginia’s gerrymandered map and work with me on the nonpartisan redistricting plan our Commonwealth deserves.

To accomplish this, I ask that you agree to settle this litigation in a way that empowers the General Assembly to redraw the eleven House of Delegates districts that have been sent back to the District Court. Once that settlement is finalized, I am prepared to call a special session in order to pass new lines that have been prepared by an independent, nonpartisan panel. If we act quickly, we can finalize a new map before the 2017 legislative elections and prevent Virginians from voting yet again in unconstitutional gerrymandered districts.

For too long, the redistricting process has been defined by partisanship, racial politics, and costly litigation. Today we have the opportunity to reverse that history and put our Commonwealth on the right side of one of the most important issues of our time. I hope you will consider this request and join me in a nonpartisan process to strengthen democracy in Virginia.

Virginia Poll Results

Quinnipiac University released the results of a new Virginia poll.  Here are the highlights:

  • For the 2018 Senate race, Democrat Tim Kaine leads hypothetical matchups against two Republican women: Laura Ingraham (56-36) and Carly Fiorina (57-36).
  • President Trump has a 38-56 job approval rating in Virginia.
    • Republicans approve 81-11
    • Democrats disapprove 95-3
    • Independents disapprove 57-37
    • Whites approve 46-48
    • Non-whites disapprove 76-20
  • President Trump’s travel ban has a 55-42 percent disapproval rating. (Keep in mind Virginia attorney general Mark Harring has challenged it in court)
  • Virginia voters think Judge Neil Gorsuch should be confirmed to the Supreme Court by a 49-31 margin.
  • Virginia voters think home-schooled students should be able to play on public school sports teams, by an overwhelming 71-23 margin.

Ninth Circuit Court of Appeals Rules 3-0 Against Trump Administration

A three-judge panel on the Ninth Circuit Court of Appeals ruled unanimously in favor of Washington and Minnesota in their lawsuit against the federal government. (Read the PDF of the decision here) The ruling means the Temporary Restraining Order (TRO) issued by Judge James Robart blocking the implementation of President Trump’s travel/immigration ban is still in effect. CNN legal analyst Jeffrey Toobin called it “a complete and total repudiation of the Trump administration’s legal position in this case.” (Watch the video here)

Toobin also pointed out that the three judges who made this decision were appointed by Jimmy Carter, George W. Bush, and Barack Obama, so there is no political division. In addition, Judge Robart was a George W. Bush appointee, meaning that four federal judges from both parties have ruled unanimously against the administration in two separate decisions.   If the administration appeals to the Supreme Court and the justices split 4-4, the Ninth Circuit opinion would stand, though not with the weight of a Supreme Court ruling decided by a majority of the full court.  Keep in mind there are other lawsuits that have been filed against the administration in other states, so this is not over by any means.

Here is a sampling of reactions to the Ninth Circuit’s decision:

DNC Chair Candidates React to Gorsuch Supreme Court Nomination

Sally Boynton Brown:

Ray Buckley:

“This is a stolen seat. The process for Antonin Scalia’s replacement has been delayed by Senate Republicans for nearly a year, and now we have an historically unpopular president who lost the popular vote by three million votes nominating a Scalia clone to the High Court. The American people won’t stand for this, and the Democratic Party will stand in lockstep with them.”

Pete Buttigieg:

Jehmu Greene:

Jaime Harrison:

“The judge nominated by President Obama for this Supreme Court seat, Merrick Garland, was called ‘a consensus nominee’ by Senator Orrin Hatch.  But Senate Republicans refused to even give him a hearing; Mitch McConnell said, ‘Let’s let the American people decide.’  Well, by a margin of almost 3 million, more Americans chose Hillary Clinton over Donald Trump to fill this seat.  So President Trump would have been wise to choose a consensus nominee like Merrick Garland.  But given Trump’s radical actions since the start of his presidency, we should not be surprised that he has chosen a judge whose record favoring big corporations and opposing civil rights suggests that he is a right-wing zealot.  Unless the hearings somehow reveal that Judge Gorsuch’s extreme record will not continue on our nation’s highest court, bring out the cots for a filibuster.”

Tom Perez:

“I always say that past is prologue, and today President Donald Trump proved that theory true when he announced a nominee just as extreme and divisive as his past 12 days in office. President Trump’s selection of Judge Gorsuch to serve a lifetime term on our nation’s highest court only further cements what we’ve witnessed over the first 12 days of his administration: that he doesn’t give a damn about upholding the Constitution.

“Judge Gorsuch has already led the attack on women’s reproductive health from the bench and would eagerly overturn Roe v. Wade if confirmed. He has an abysmal record on protecting citizens from police brutality and would seriously jeopardize bipartisan efforts toward criminal justice reform. He would similarly dismantle the gains we’ve made for LGBT Americans and serve as a reliable vote in favor of voter suppression on the high court.  In short, a Justice Gorsuch would discriminate against a majority of Americans from the bench. This alone is disqualifying.

“And just yesterday, Donald Trump demonstrated that what he’s most concerned with is putting in place sycophants who can’t be trusted to hold him accountable when he breaks the law and violates the Constitution. We should expect nothing less from his judicial nominees.

“Simply put, a Justice Gorsuch on the Supreme Court is intolerable and it’s up to Democrats to block his nomination.

“As I’ve said before, we need to afford Donald Trump the same level of cooperation Mitch McConnell afforded President Obama. That starts with making sure that Judge Gorsuch never sits on the Supreme Court.”

I haven’t seen any statements on Keith Ellison’s campaign and congressional websites or any of his social media accounts. This post will be updated if he issues a statement or makes a public comment.

Democrats Skipping Meeting with Trump Supreme Court Nominee Tonight

From NBC’s Kelly O’Donnell: