newyorker--2020-11-11--The Rare Authority of Alex Trebek

The Rare Authority of Alex Trebek

For more than thirty years , Trebek presided over the blue game room .
His suits were starched and his eyebrow was arched ; his presence alone made contestants and audiences instinctively straighten .
Like Art Fleming , the original host of “ Jeopardy !
, ” Trebek needed to project moral fortitude .
( A number of cheating scandals on quiz shows in the fifties had eroded public trust in the format . )
Trebek ’ s chic professorial demeanor—the glasses tipped down the nose , just so ; a mop of brown hair that , in later years @ @ @ @ @ @ @ to viewers that this game was fair .
One of the hallmarks of the show is its consistency .
The game has always followed a strict pattern : Jeopardy !
, Double Jeopardy !
( worth twice as much ) , and the Final Jeopardy question .
But there is also a sort of drama that transpires each time .
Contestants race to press their hand-held buzzers , and whoever is first offers their answer , while looking to Trebek—all the way over there , at his lectern—for his reaction .
One objective @ @ @ @ @ @ @ Another is to please Alex Trebek .
It ’ s easy to forget to appreciate the freak ubiquity of “ Jeopardy !
” One of the most popular , longest-running television shows of all time is a trivia gauntlet that , by design , casts bookish obsessives .
( Some of the most common professions among the show ’ s contestants are attorney , software engineer , graduate student , and stay-at-home mom . )
It ’ s a miracle that the show is so exciting to watch .
This is due almost @ @ @ @ @ @ @ , his command was warm but curt .
He was not an m.c.—Johnny Gilbert , his voice-of-god announcer , brought the vestigial showmanship—not a “ personality.
” He never changed his demeanor , even as the landscape of game-show television tipped , over the years , toward the loud and the carnivalesque ( “ Family Feud , ” “ Who Wants to Be a Millionaire ?
” ) .
Trebek took the game seriously , giving us permission to , without embarrassment , find pride in procuring , while yelling on the couch @ @ @ @ @ @ @ .
Under Trebek ’ s stewardship , watching “ Jeopardy !
” counted for righteous mental exercise .
No matter how busy you were , you could always afford the half hour ; it was dinnertime , anyway .
George Alexander Trebek was born in the mining town of Sudbury , Ontario , in 1940 .
His father was an immigrant from Ukraine , and his mother was French-Canadian .
Between the two of them , they spoke English , French , Ukrainian , Polish , and Russian .
( “ It was @ @ @ @ @ @ @ Trebek said , in 2011 , during a speech at the Ukrainian Cultural Center , in L.A. ) In his early twenties , while attending the University of Ottawa and in need of money to finish out his degree , Trebek took a job at the Canadian Broadcasting Corporation , as an announcer for radio segments .
He quickly segued into a smattering of hosting gigs—a photo of a handsome twenty-three-year-old Trebek , on the set of “ Music Hop , ” the Canadian equivalent of “ American Bandstand , ” has gone @ @ @ @ @ @ @ more than a dozen short-lived game shows—at one point , he was hosting three at the same time .
He projected a suaveness and decorum that could be excitingly incongruous with the over-all vibe of a show like “ The New Battlestars ” or “ Double Dare.
” And , occasionally , he would venture into the realm of news , taking on the role of the handsome everyman broadcaster .
( Trebek ’ s surreal , meandering moderation of a 2018 Pennsylvania gubernatorial debate , which put on display his refusal to @ @ @ @ @ @ @ theatre , is a fascinating misstep in his career . )
It was “ Jeopardy !
” that best suited him .
He led one of our last wholesome routines—a celebration of facts , from the arcane to the accessible—with a kind of tangible enthusiasm .
He also had an entertainer ’ s subtle edge , a jesting streak that hit like electricity when it was activated .
If a contestant ’ s answer was silly , he might scowl imperceptibly , deflating them with a small “ No.
” If the answer @ @ @ @ @ @ @ , he might not say anything at all until the contestant self-corrected .
The theatre was not based in snobbery , and neither is the show ’ s culture .
Trebek simply respected the correctness of things too much to let error live .
With returning champions such as Ken Jennings , who has parlayed his unbroken record into a consulting producer role , and James Holzhauer , whose blitz technique awed as many as it irked , Trebek built a rapport .
The prime-time special “ Jeopardy !
The Greatest of All @ @ @ @ @ @ @ , and Brad Rutter , the highest earner in the show ’ s history , proceeded rather like a reunion .
A multi-episode run wasn ’ t always necessary for this kind of intimacy ; in one of the many “ Jeopardy !
” clips currently making the rounds on the Internet , Trebek lightly roasts a first-time player for liking “ nerdcore hip-hop.
” ( “ Losers , in other words , ” he says , deadpan . )
But humiliation , the engine driving every iteration of modern reality television , @ @ @ @ @ @ @ wanted the contestants—the zealots who had drilled themselves ad nauseam to qualify for the competition—to do well .
If the clues were too hard , Trebek would critique the writers afterward .
One got the sense that Trebek wanted the contestants to thrive .
In 2016 , a woman named Cindy Stowell was featured on the show .
While running a fever , Stowell , a Stage IV cancer patient , went on a seven-game run , earning more than a hundred thousand dollars .
She died before her episodes were aired , @ @ @ @ @ @ @ ” contestant .
When paying tribute to her , in a segment aired at the end of her streak , Trebek grew emotional .
He explained to viewers , “ Appearing on the show was a fulfillment of a lifelong ambition for that lady.
” Recently , interest in Trebek ’ s personal life has been piqued .
He seemed to know everything .
We did not know much about him .
When , in March of 2019 , he announced that he had been diagnosed with pancreatic cancer , many came to @ @ @ @ @ @ @ for the first time .
That Trebek would be on television every weeknight had always seemed like a foregone conclusion .
As his illness ebbed and surged , he sometimes looked gaunt and tired .
He kept his composure , except for the time that the contestant Dhruv Gaur , aware that he ’ d already lost the game , spent his money in Final Jeopardy on this answer : “ We love you , Alex.
” In Trebek ’ s memoir , “ The Answer Is .
.
.
: Reflections on @ @ @ @ @ @ @ year , the host processes , with engrossing reluctance , the weirdness of his renown : “ I ’ m part of the family more than an outside celebrity who comes into your home to entertain you , ” he wrote .
“ They find me comforting and reassuring as opposed to being impressed by me.
” There was an effacing aspect to the job .
“ Jeopardy !
” wasn ’ t supposed to be about Trebek .
He tried his damnedest to keep the attention on the pursuit of knowledge .
@ @ @ @ @ @ @ become synonymous with knowledge itself .
Among “ Jeopardy !
” diehards , there has long been a question : Did Trebek , after hosting the show for so many years , possess a genius ?
Even if Trebek was just reading from the cue cards , it will be difficult to replace him .
Not many cultural figures have garnered such trust from the public .
His idiosyncrasies are also baked into the action of the game ; expert players literally hang on his every word , studying his careful speech patterns @ @ @ @ @ @ @ first .
Many wonder if “ Jeopardy !
” should even continue without Trebek .
It should .
It will have to be different .
Trebek taped episodes up until October 29th .
( In a prime-time interview from this past January , he said that he would prepare a final statement , to be aired when he left the show , which fans are hoping he had the opportunity to do . )
Last night ’ s “ Jeopardy !
, ” the first taped episode to air after Trebek ’ s @ @ @ @ @ @ @ from the show ’ s executive producer , Mike Richards , followed by a moment of silence in a darkened studio .
Then , after the opening credits , Trebek steered the show like he always had .
Elaborating on a contestant ’ s correct response concerning an acronym popularized by Drake , Trebek sounded hip : “ YOLO : you only live once.
” When interviewing the contestants , midway through the episode , Trebek asked the returning champion about his success as a “ vocal percussionist.
” Excitedly , the man @ @ @ @ @ @ @ Meeting him is one of the high points of my life , ” he said .
Then he gestured deferentially to Trebek .
“ Now the second highest point in my life .
”

Of course he had impressed Lucille Ball. In the late seventies, the actress, a regular on the game-show circuit, had been a fan of the flashy daytime competition “High Rollers”—in large part because of its dignified host, a young mustachioed Canadian named Alex Trebek. So when Ball heard that her friend Merv Griffin was looking to revive his cancelled quiz show, “Jeopardy!,” she recommended that Griffin hire Trebek as the program’s new host. In September, 1984, Trebek hosted his first episode of “Jeopardy!,” and, sometime around Christmas, his last will be aired. After a year-and-a-half-long battle with pancreatic cancer, he died on Sunday, at the age of eighty, in Los Angeles.
For more than thirty years, Trebek presided over the blue game room. His suits were starched and his eyebrow was arched; his presence alone made contestants and audiences instinctively straighten. Like Art Fleming, the original host of “Jeopardy!,” Trebek needed to project moral fortitude. (A number of cheating scandals on quiz shows in the fifties had eroded public trust in the format.) Trebek’s chic professorial demeanor—the glasses tipped down the nose, just so; a mop of brown hair that, in later years, became a trimmed flash of white—telegraphed to viewers that this game was fair. One of the hallmarks of the show is its consistency. The game has always followed a strict pattern: Jeopardy!, Double Jeopardy! (worth twice as much), and the Final Jeopardy question. But there is also a sort of drama that transpires each time. Contestants race to press their handheld signalling devices, and whoever is first offers her answer, while looking to Trebek—all the way over there, at his lectern—for his reaction. One objective is to get the answer correct. Another is to please Alex Trebek.
It’s easy to forget to appreciate the freak ubiquity of “Jeopardy!” One of the most popular, longest-running television shows of all time is a trivia gantlet that, by design, casts bookish obsessives. (Some of the most common professions among the show’s contestants are attorney, software engineer, graduate student, and stay-at-home mom.) It’s a miracle that the show is so exciting to watch. This is due almost entirely to Trebek. As a host, his command was warm but curt. He was not an m.c.—Johnny Gilbert, his voice-of-god announcer, brought the vestigial showmanship—not a “personality.” He never changed his demeanor, even as the landscape of game-show television tipped, over the years, toward the loud and the carnivalesque (“Family Feud,” “Who Wants to Be a Millionaire?”). Trebek took the game seriously, giving us permission to, without embarrassment, find pride in procuring, while yelling on the couch, our little trinkets, our factoids. Under Trebek’s stewardship, watching “Jeopardy!” counted for righteous mental exercise. No matter how busy you were, you could always afford the half hour; it was dinnertime, anyway.
George Alexander Trebek was born in the mining town of Sudbury, Ontario, in 1940. His father was an immigrant from Ukraine, and his mother was French-Canadian. Between the two of them, they spoke English, French, Ukrainian, Polish, and Russian. (“It was like a mini United Nations,” Trebek said, in 2011, during a speech at the Ukrainian Cultural Center, in L.A.) In his early twenties, while attending the University of Ottawa and in need of money to finish out his degree, Trebek took a job at the Canadian Broadcasting Corporation, as an announcer for radio segments. He quickly segued into a smattering of hosting gigs—a photo of a handsome twenty-three-year-old Trebek, on the set of “Music Hop,” the Canadian equivalent of “American Bandstand,” has gone viral in recent days. He hosted more than a dozen short-lived game shows—at one point, he was hosting three at the same time. He projected a suaveness and decorum that could be excitingly incongruous with the over-all vibe of a show like “The New Battlestars” or “Double Dare.” And, occasionally, he would venture into the realm of news, taking on the role of the handsome everyman broadcaster. (Trebek’s surreal, meandering moderation of a 2018 Pennsylvania gubernatorial debate, which put on display his refusal to conform to the norms of American political theatre, is a fascinating misstep in his career.)
It was “Jeopardy!” that best suited him. He led one of our last wholesome routines—a celebration of facts, from the arcane to the accessible—with a kind of tangible enthusiasm. He also had an entertainer’s subtle edge, a jesting streak that hit like electricity when it was activated. If a contestant’s answer was silly, he might scowl imperceptibly, deflating him with a small “No.” If the answer was not given in the proper format, he might not say anything at all until the contestant self-corrected. The theatre was not based in snobbery, and neither is the show’s culture. Trebek simply respected the correctness of things too much to let error live.
With returning champions such as Ken Jennings, who has parlayed his unbroken record into a consulting-producer role, and James Holzhauer, whose blitz technique awed as many as it irked, Trebek built a rapport. The prime-time special “Jeopardy! The Greatest of All Time,” featuring Jennings, Holzhauer, and Brad Rutter, the highest earner in the show’s history, proceeded rather like a reunion. A multi-episode run wasn’t always necessary for this kind of intimacy; in one of the many “Jeopardy!” clips currently making the rounds on the Internet, Trebek lightly roasts a first-time player for liking “nerdcore hip-hop.” (“Losers, in other words,” he says, deadpan.) But humiliation, the engine driving every iteration of modern reality television, never figured into the production. Trebek wanted the contestants—the zealots who had drilled themselves ad nauseam to qualify for the competition—to do well. If the clues were too hard, Trebek would critique the writers afterward.
One got the sense that Trebek wanted the contestants to thrive. In 2016, a woman named Cindy Stowell was featured on the show. While running a fever, Stowell, a Stage IV cancer patient, went on a seven-game run, earning more than a hundred thousand dollars. She died before her episodes were aired, becoming the first posthumous “Jeopardy!” contestant. When paying tribute to her, in a segment aired at the end of her streak, Trebek grew emotional. He explained to viewers, “Appearing on the show was a fulfillment of a lifelong ambition for that lady.”
Recently, interest in Trebek’s personal life has been piqued. He seemed to know everything. We did not know much about him. When, in March of 2019, he announced that he had been diagnosed with pancreatic cancer, many came to terms with the depth of his significance for the first time. That Trebek would be on television every weeknight had always seemed like a foregone conclusion. As his illness ebbed and surged, he sometimes looked gaunt and tired. He kept his composure, except for the time that the contestant Dhruv Gaur, aware that he’d already lost the game, spent his money in Final Jeopardy on this answer: “We love you, Alex.”
In Trebek’s memoir, “The Answer Is . . . : Reflections on My Life,” published earlier this year, the host processes, with engrossing reluctance, the weirdness of his renown: “I’m part of the family more than an outside celebrity who comes into your home to entertain you,” he wrote. “They find me comforting and reassuring as opposed to being impressed by me.” There was an effacing aspect to the job. “Jeopardy!” wasn’t supposed to be about Trebek. He tried his damnedest to keep the attention on the pursuit of knowledge. Over time, though, he has become synonymous with knowledge itself. Among “Jeopardy!” diehards, there has long been a question: Did Trebek, after hosting the show for so many years, possess a genius?
Even if Trebek was just reading from the cue cards, it will be difficult to replace him. Not many cultural figures have garnered such trust from the public. His idiosyncrasies are also baked into the action of the game; expert players hang on his every word, studying his careful speech patterns, in order to hit the buzzer first. Many wonder if “Jeopardy!” should even continue without Trebek. It should. It will have to be different.
Trebek taped episodes up until October 29th. (In a prime-time interview from this past January, he said that he would prepare a final statement, to be aired when he left the show, which fans are hoping he had the opportunity to do.) Monday night’s “Jeopardy!,” the first taped episode to air after Trebek’s death, began with an emotional statement from the show’s executive producer, Mike Richards, followed by a moment of silence in a darkened studio. Then, after the opening credits, Trebek steered the show like he always had. Elaborating on a contestant’s correct response concerning an acronym popularized by Drake, Trebek sounded hip: “YOLO: you only live once.” When interviewing the contestants, midway through the episode, Trebek asked the returning champion about his success as a “vocal percussionist.” Excitedly, the man recounted opening for James Brown. “Meeting him is one of the high points of my life,” he said. Then he gestured deferentially to Trebek. “Now the second-highest point in my life.”


newyorker--2020-11-10--Supreme Court Justice Brett Kavanaugh’s Vote May Save Obamacare This Time

One of the strongest signs that the Affordable Care Act will survive the latest attempt to kill it in the Supreme Court came on Tuesday , in oral arguments in California v. Texas , when Justice Brett Kavanaugh began questioning Kyle Hawkins , the solicitor general of Texas .
Hawkins was arguing that a decision by Congress , in 2017 , to set the tax penalty for Americans who had failed to secure health insurance—the “ individual mandate ” —at zero dollars not only rendered the mandate unconstitutional but meant that all of Obamacare , as the A.C.A .
is @ @ @ @ @ @ @ people with preëxisting conditions and its expansion of Medicaid to its nutrition-labelling and medical-records guidelines , is also unconstitutional .
One provision , Hawkins ’ s argument went , had poisoned it all—it had to go .
The name for such a toss-it-all principle , in constitutional-law parlance , is “ inseverability , ” and the uncertainty that comes with it is a reason that the Court has long expressed a preference , when possible , for “ severability , ” which means just lopping off the bad parts of a law .
@ @ @ @ @ @ @ by a President who promised to kill Obamacare , and is himself part of the Court ’ s conservative bloc , he appears not to have forgotten that .
“ Looking at our severability precedents , it does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place , the provisions regarding preëxisting conditions and the rest , ” Kavanaugh said .
( He wrote one of those precedents , Barr v .
A.A.P.C.
, which was decided earlier this @ @ @ @ @ @ @ for you , obviously , is : How do you get around those precedents on severability , which seem on point here ?
” Hawkins began talking about how , when the A.C.A .
was passed , in 2010 , Congress had included a finding that the individual mandate was essential to the bill ’ s larger vision of how the health-care market would operate .
Kavanaugh cut him off .
“ I ’ m sorry to interrupt , ” he said , not sounding very sorry .
“ But inseverability clauses are @ @ @ @ @ @ @ referring to clauses in legislation telling judges what parts of a law Congress thought could not survive if other parts were struck down . )
Kavanaugh continued , “ You know , Congress knows how to write an inseverability clause .
And that ” —he paused for a long moment— “ is not the language that they chose here.
” He added , “ I ’ m having trouble seeing that as the equivalent of an inseverability clause.
” Those last words , despite their technical character , were worth the wait .
@ @ @ @ @ @ @ is an attempt to kill Obamacare ; indeed , a lower-court judge who heard the case threw out the entire statute , though that ruling was stayed .
Texas and nineteen other states had initially sued the federal government ( two states later withdrew from the case ) , but the Trump Administration refused to defend the law ; California and other states , and lawyers for the House of Representatives , were allowed to step in and advocate for it .
What might , on the surface , seem the central question—whether @ @ @ @ @ @ @ in practical terms , the most consequential one .
Back in 2012 , when the A.C.A .
faced its first major test before the Court , its survival did seem to ride on the mandate , owing to fears that , without it , healthy people would not buy insurance and the “ pool ” of patients who did would be so unhealthy as to be an impossible burden on insurance companies , which were no longer able to impose lifetime caps or to capriciously deny coverage .
It was an enormous relief @ @ @ @ @ @ @ John Roberts joined Justices Ruth Bader Ginsburg , Stephen Breyer , Sonia Sotomayor , and Elena Kagan in upholding the mandate .
His rationale then was that , even though Congress could not force people to buy insurance , it could impose a tax on them if they did not buy it—a fine distinction—and the mandate , defined as a tax , was thus constitutional .
A couple of things have happened since then .
The mandate turned out to be less important than expected .
Roberts expressed some wonder at that turn @ @ @ @ @ @ @ a vegetable-reference-laden section of the arguments , he asked Donald Verrilli , the House ’ s lawyer , if “ we spent all that time talking about broccoli for nothing.
” ( For reasons that future generations may ponder , many of the arguments in the 2012 A.C.A .
challenge devolved into hypotheticals about whether the government could require people to buy broccoli , which Ginsburg referred to as “ the broccoli horrible.
” ) Verrilli replied that Obamacare had attempted to use a “ carrot-and-stick approach ” to get people to buy @ @ @ @ @ @ @ , but “ there were a lot of carrots ” —such as subsidies and the removal of lifetime caps—and “ it ’ s turned out that the carrots work without the stick.
” He noted that , before removing the financial penalty in its 2017 tax bill , Congress had received an opinion from the Congressional Budget Office that doing so would not , in fact , upend the insurance market .
( And that appears to be true . )
Verrilli noted that , although a mandate might have been viewed as @ @ @ @ @ @ @ market in insurance , such a market had now been created .
The mandate was no longer required ; it was severable .
Indeed , Congress had severed it , by zeroing out the penalty .
Verrilli ’ s answer highlighted the topsy-turvy nature of this case .
If the problem was really , as some A.C.A .
opponents have put it , that the mandate is an instrument of state oppression , didn ’ t that problem go away when the financial penalty was reduced to zero ?
In practical terms , @ @ @ @ @ @ @ than a recommendation , and , if it vanishes , no one ’ s life will change .
The penalty will , effectively , go from zero to zero .
That fact makes the ability of this case to rally the legal forces of eighteen states something of a puzzle .
As Justice Kagan put it , on Tuesday , “ Congress has made the law less coercive ” ; how could it be that what was “ not an unconstitutional command before has become an unconstitutional command now , given the far @ @ @ @ @ @ @ The explanation is that the opponents of the law are blinded by a sort of opportunistic sophistry .
They are not looking for freedom from state control but for what Michael Mongan , the California solicitor general , called “ leverage ” to make the claim that Obamacare is unconstitutional at its core .
Justice Amy Coney Barrett , in her Senate confirmation hearings , referred to California v. Texas as being a case not about Obamacare as a whole but about only the doctrine of severability , which she implied was an @ @ @ @ @ @ @ course , deeply misleading—as the lower-court ruling demonstrates , all of Obamacare is at stake .
In her questions on Tuesday , Barrett spent significant time on the matter of “ standing , ” which has to do with who has a right to bring a challenge to a law .
( Parties who do so have to show that they have been harmed by that law . )
The standing question is a complicated one in this case , partly because it , too , got tangled up with the severability question—basically @ @ @ @ @ @ @ being harmed by parts of the law other than the mandate might give them standing—and Barrett was not the only Justice who probed it .
Her last line of questioning , to Jeffrey Wall , the acting Solicitor General of the U.S. , was among her most revealing .
She pushed him to agree that members of Congress might , in zeroing out the penalty , have been doing something that they knew to be unconstitutional .
This appeared to be a reference to an extreme scenario that emerged elsewhere in the oral @ @ @ @ @ @ @ at least some in Congress might have pushed the measure knowing that the result would be unconstitutional and hoping that it would render other parts of the law unconstitutional , too—as Justice Samuel Alito put it , some in Congress “ may have done so precisely because they wanted the whole thing to fall.
” Remarkably , Alito was not offering that as an accusation but as a justification ; he , too , seems to want the whole thing to fall .
This is not how the bill was promoted at the @ @ @ @ @ @ @ a whole—and Verrilli , in his summation , said that to treat the tax revision as a stealth repeal would be to “ attribute to Congress a recklessness that is both without foundation in reality and jurisprudentially inappropriate.
” Roberts , unlike Alito , did not sound interested in being dragged into some bank-shot scheme to kill Obamacare .
In his exchange with Hawkins , he said that it was “ hard for you to argue that Congress intended the entire act to fall ” in 2017 , when it removed only the @ @ @ @ @ @ @ think , frankly , that they wanted the Court to do that , but that ’ s not our job.
” He then moved on to talking about the importance of severability .
Similarly , in his exchange with Hawkins , Kavanaugh asked , “ In 2017 , do you read Congress as having wanted to preserve protection for coverage for people with preëxisting conditions ?
Because it sure seems that way from the record and the text.
” Oral arguments can be deceptive .
It may be hard to tell , from @ @ @ @ @ @ @ each Justice will come down on the zeroed-out mandate , or on the question of standing .
Kavanaugh ’ s version of the “ broccoli horrible ” was a hypothetical about whether the federal government could require every American who lives in a house to fly the American flag .
But both he and Roberts appear to be reasonably firm on what the remedy would be : remove the mandate and let the rest stand .
If that proves true , there would , with Breyer , Sotomayor , and Kagan , be @ @ @ @ @ @ @ which Obamacare protects the most vulnerable will survive , despite Ginsburg ’ s death in October .
Barrett will not have undone her work—at least , not yet .

One of the strongest signs that the Affordable Care Act will survive the latest attempt to kill it in the Supreme Court came on Tuesday, in oral arguments in California v. Texas, when Justice Brett Kavanaugh began questioning Kyle Hawkins, the solicitor general of Texas. Hawkins was arguing that a decision by Congress, in 2017, to set the tax penalty for Americans who had failed to secure health insurance—the “individual mandate”—at zero dollars not only rendered the mandate unconstitutional but meant that all of Obamacare, as the A.C.A. is also known, from its protections for people with preëxisting conditions and its expansion of Medicaid to its nutrition-labelling and medical-records guidelines, is also unconstitutional. One provision, Hawkins’s argument went, had poisoned it all—it had to go. The name for such a toss-it-all principle, in constitutional-law parlance, is “inseverability,” and the uncertainty that comes with it is a reason that the Court has long expressed a preference, when possible, for “severability,” which means just lopping off the bad parts of a law. And, even though Kavanaugh was appointed by a President who promised to kill Obamacare, and is himself part of the Court’s conservative bloc, he appears not to have forgotten that.
“Looking at our severability precedents, it does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place, the provisions regarding preëxisting conditions and the rest,” Kavanaugh said. (He wrote one of those precedents, Barr v. A.A.P.C., which was decided earlier this year.) “So the question for you, obviously, is: How do you get around those precedents on severability, which seem on point here?”
Hawkins began talking about how, when the A.C.A. was passed, in 2010, Congress had included a finding that the individual mandate was essential to the bill’s larger vision of how the health-care market would operate. Kavanaugh cut him off. “I’m sorry to interrupt,” he said, not sounding very sorry. “But inseverability clauses are usually very clear.” (He was referring to clauses in legislation telling judges what parts of a law Congress thought could not survive if other parts were struck down.) Kavanaugh continued, “You know, Congress knows how to write an inseverability clause. And that”—he paused for a long moment—“is not the language that they chose here.” He added, “I’m having trouble seeing that as the equivalent of an inseverability clause.”
Those last words, despite their technical character, were worth the wait. California v. Texas is a case that is an attempt to kill Obamacare; indeed, a lower-court judge who heard the case threw out the entire statute, though that ruling was stayed. Texas and nineteen other states had initially sued the federal government (two states later withdrew from the case), but the Trump Administration refused to defend the law; California and other states, and lawyers for the House of Representatives, were allowed to step in and advocate for it. What might, on the surface, seem the central question—whether the individual mandate is constitutional—is not, in practical terms, the most consequential one. Back in 2012, when the A.C.A. faced its first major test before the Court, its survival did seem to ride on the mandate, owing to fears that, without it, healthy people would not buy insurance and the “pool” of patients who did would be so unhealthy as to be an impossible burden on insurance companies, which were no longer able to impose lifetime caps or to capriciously deny coverage. It was an enormous relief when, that year, Chief Justice John Roberts joined Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan in upholding the mandate. His rationale then was that, even though Congress could not force people to buy insurance, it could impose a tax on them if they did not buy it—a fine distinction—and the mandate, defined as a tax, was thus constitutional.
A couple of things have happened since then. The mandate turned out to be less important than expected. Roberts expressed some wonder at that turn of events on Tuesday when, in a vegetable-reference-laden section of the arguments, he asked Donald Verrilli, the House’s lawyer, if “we spent all that time talking about broccoli for nothing.” (For reasons that future generations may ponder, many of the arguments in the 2012 A.C.A. challenge devolved into hypotheticals about whether the government could require people to buy broccoli, which Ginsburg referred to as “the broccoli horrible.”) Verrilli replied that Obamacare had attempted to use a “carrot-and-stick approach” to get people to buy insurance; the mandate was the stick, but “there were a lot of carrots”—such as subsidies and the removal of lifetime caps—and “it’s turned out that the carrots work without the stick.” He noted that, before removing the financial penalty in its 2017 tax bill, Congress had received an opinion from the Congressional Budget Office that doing so would not, in fact, upend the insurance market. (And that appears to be true.) Verrilli noted that, although a mandate might have been viewed as crucial to the creation of a new market in insurance, such a market had now been created. The mandate was no longer required; it was severable. Indeed, Congress had severed it, by zeroing out the penalty.
Verrilli’s answer highlighted the topsy-turvy nature of this case. If the problem was really, as some A.C.A. opponents have put it, that the mandate is an instrument of state oppression, didn’t that problem go away when the financial penalty was reduced to zero? In practical terms, the mandate now amounts to no more than a recommendation, and, if it vanishes, no one’s life will change. The penalty will, effectively, go from zero to zero. That fact makes the ability of this case to rally the legal forces of eighteen states something of a puzzle. As Justice Kagan put it, on Tuesday, “Congress has made the law less coercive”; how could it be that what was “not an unconstitutional command before has become an unconstitutional command now, given the far lesser degree of coercive force?” The explanation is that the opponents of the law are blinded by a sort of opportunistic sophistry. They are not looking for freedom from state control but for what Michael Mongan, the California solicitor general, called “leverage” to make the claim that Obamacare is unconstitutional at its core.
Justice Amy Coney Barrett, in her Senate confirmation hearings, referred to California v. Texas as being a case not about Obamacare as a whole but about only the doctrine of severability, which she implied was an arcane matter. That was, of course, deeply misleading—as the lower-court ruling demonstrates, all of Obamacare is at stake. In her questions on Tuesday, Barrett spent significant time on the matter of “standing,” which has to do with who has a right to bring a challenge to a law. (Parties who do so have to show that they have been harmed by that law.) The standing question is a complicated one in this case, partly because it, too, got tangled up with the severability question—basically, the A.C.A. challengers suggested that being harmed by parts of the law other than the mandate might give them standing—and Barrett was not the only Justice who probed it.
Her last line of questioning, to Jeffrey Wall, the acting Solicitor General of the U.S., was among her most revealing. She pushed him to agree that members of Congress might, in zeroing out the penalty, have been doing something that they knew to be unconstitutional. This appeared to be a reference to an extreme scenario that emerged elsewhere in the oral arguments: whether, in 2017, at least some in Congress might have pushed the measure knowing that the result would be unconstitutional and hoping that it would render other parts of the law unconstitutional, too—as Justice Samuel Alito put it, some in Congress “may have done so precisely because they wanted the whole thing to fall.” Remarkably, Alito was not offering that as an accusation but as a justification; he, too, seems to want the whole thing to fall. This is not how the bill was promoted at the time—Congress had voted against repealing Obamacare as a whole—and Verrilli, in his summation, said that to treat the tax revision as a stealth repeal would be to “attribute to Congress a recklessness that is both without foundation in reality and jurisprudentially inappropriate.”
Roberts, unlike Alito, did not sound interested in being dragged into some bank-shot scheme to kill Obamacare. In his exchange with Hawkins, he said that it was “hard for you to argue that Congress intended the entire act to fall” in 2017, when it removed only the penalty. He added, “I think, frankly, that they wanted the Court to do that, but that’s not our job.” He then moved on to talking about the importance of severability. Similarly, in his exchange with Hawkins, Kavanaugh asked, “In 2017, do you read Congress as having wanted to preserve protection for coverage for people with preëxisting conditions? Because it sure seems that way from the record and the text.”
Oral arguments can be deceptive. It may be hard to tell, from Tuesday’s arguments, just how each Justice will come down on the zeroed-out mandate, or on the question of standing. Kavanaugh’s version of the “broccoli horrible” was a hypothetical about whether the federal government could require every American who lives in a house to fly the American flag. But both he and Roberts appear to be reasonably firm on what the remedy would be: remove the mandate and let the rest stand. If that proves true, there would, with Breyer, Sotomayor, and Kagan, be five votes saying that the ways in which Obamacare protects the most vulnerable will survive, despite Ginsburg’s death in October. Barrett will not have undone her work—at least, not yet.


newyorker--2020-11-10--As Trump Gained Latino Support in Florida, Biden’s Campaign Ignored Warnings

On November 3rd , Donald Trump carried Florida by nearly four hundred thousand votes , more than twice the margin that he received in 2016 .
Four years after Clinton won Miami-Dade by thirty percentage points , Biden performed dismally—beating Trump by only seven per cent .
Democrats lost two House seats , along with key races at the county and state levels .
To the shock of many Democrats , Trump improved his standing in Miami-Dade in majority Latino , Black , and white precincts alike .
Exit polls showed that he won roughly fifty-five per cent of the @ @ @ @ @ @ @ the Puerto Rican vote , and forty-eight per cent among myriad other Latino diasporas .
Wills was shattered by the results but not surprised .
For months , he had been pleading for help .
Wills and his fiancée , Daniela Ferrera , a campaign volunteer , have blamed the campaign ’ s state leadership for contributing to Biden ’ s disastrous performance in Florida .
Wills and Ferrera , who are both Cuban-Americans , had supported the Republican Party until Trump became the Party ’ s nominee , in 2015 .
Ferrera @ @ @ @ @ @ @ with her family seventeen years ago .
“ I know what an authoritarian looks like , ” she said , noting also that she was repulsed by Trump ’ s bigotry toward Latinos .
Wills , who is thirty-eight , shared Ferrera ’ s opposition to Trump ’ s divisiveness and was keen to help Democrats make inroads with the state ’ s young Cuban voters , who were seen as being more liberal than their parents .
A Florida political operative , he believed that the former Vice-President could turn Florida blue @ @ @ @ @ @ @ on Biden ’ s campaign , he grew disenchanted with the state leadership ’ s field operation and its apparent disregard for the Latino electorate .
“ It was clear that the resources for the Hispanic team were an afterthought , ” Wills told me .
“ They spat on us , trampled on us , and ran over us.
” A spokesperson for Biden ’ s state campaign said that it spent hundreds of thousands of dollars on a wide-ranging effort across the state to convince Latinos to back Biden .
“ @ @ @ @ @ @ @ announced a separate six-figure get-out-the-vote investment for Hispanic outreach , which included direct voter contact , paid media for smaller , micro-targeted outlets , and other outreach and events for the Hispanic program , ” the spokesperson said .
“ This funding always emphasized voter-contact efforts.
” But e-mails and documents obtained by The New Yorker show that the campaign ’ s state leadership did not respond to dozens of requests and warnings raised over the final three months of the race by members of its Latino-outreach team .
In interviews , three @ @ @ @ @ @ @ were never allocated a fixed budget , were not provided access to a Spanish-language auto-dialer until late September , and did not receive bilingual campaign literature in Miami-Dade until three days before the election .
In an October 15th e-mail , Millie Raphael , a Biden Latino-outreach associate , asked Lee , the Florida state director , for two things : “ surrogates ” and “ a budget.
” Raphael argued that the Latino vote in the state could not be won over Zoom .
After working on Andrew Gillum ’ s gubernatorial @ @ @ @ @ @ @ that Biden could not win in Florida without greater support from Latinos , who make up seventeen per cent of the state ’ s eligible voters .
Raphael warned that she could not “ overstate ” the amount of “ resentment ” that the lack of resources and support was causing among Latino field workers .
“ The members of your Hispanic team and our grassroots leaders have gone out of pocket financially to accomplish the excitement seen on the streets , ” she wrote .
“ I came aboard this campaign because @ @ @ @ @ @ @ Florida Puerto Rican vote .
I never imagined that I would be hamstrung in my attempts to accomplish this endeavor.
” Wills and Ferrera hoped to reverse that trend .
After Biden announced his Presidential bid , in April , 2019 , they both began working for his campaign as volunteers .
They believed that Biden ’ s centrist positions gave him the best chance of beating Trump and started putting together field events to expand his base in the state .
After formally joining the campaign , Wills adapted to its pandemic-based @ @ @ @ @ @ @ rallies and rolling car caravans .
When state campaign officials provided no money for such events , he paid for it himself , buying blue masks , placards , and buttons .
“ I literally had to stand at an A.T.M .
to find out how much Wells Fargo would allow me to overdraw to pull out one of these events , ” Wills said .
In July , the state leadership came under scrutiny after ninety field organizers submitted a letter to the Florida Democratic Party , accusing the campaign of “ @ @ @ @ @ @ @ a “ fully actionable field plan.
” Two months later , Ken Salazar , the former Secretary of the Interior and a co-chair of the campaign ’ s national Latino Leadership Committee , requested a conference call with the Florida campaign leadership and members of the Hispanic vote team .
Salazar asked if the Latino outreach team had enough resources .
State leaders said it did .
Wills disagreed but decided to make a separate point .
He told Salazar that he was particularly concerned about news that was spreading fast on Spanish @ @ @ @ @ @ @ visitors to Joe Biden ’ s home page .
He said that the campaign was not doing enough to counter the spread of misinformation .
After the call , members of the campaign ’ s state leadership never followed up with Wills about his warning—and he interpreted their silence as a form of retaliation .
Republican messaging to voters in South Florida was riddled with such incendiary claims .
In e-mails to its supporters , the Trump campaign cast Biden as “ the candidate of rioters , looters , arsonists , gun-grabbers , @ @ @ @ @ @ @ Left-wing RADICALS.
” Kamala Harris was “ 100 % controlled by the Left-wing MOB ” and would take over the Presidency shortly after Biden ’ s Inauguration .
An adviser to the Biden campaign in Florida blamed broader political dynamics as well , arguing that the unrest following George Floyd ’ s death drove some voters away from the Party .
“ When the protests started , the numbers started to move .
We had no control over that , ” the adviser said .
“ We had been dealing with the socialism @ @ @ @ @ @ @ .
But socialism overlaid on Blue Lives Matter and ‘ law and order ’ is something else.
” In Amandi ’ s view , the state Party committed “ the cardinal sin of electoral politics in Florida with Hispanic voters , ” allowing Trump supporters to define it as “ the party of socialism and Communism.
” The Democratic pollster went on , “ As absurd as it is for Republicans to call Democrats Communists , it ’ s more absurd for Democrats not to directly rebut that labelling , confront it or @ @ @ @ @ @ @ In mid-September , the billionaire and former New York mayor Mike Bloomberg donated a hundred million dollars to boost Biden ’ s campaign in Florida .
Most of it was spent on television ads , including several produced by Amandi ’ s communications firm .
“ They allowed us to do the type of work that frankly should have been done six months before , not six weeks before , ” Amandi said .
“ The people leading the effort are people that have never been successful winning in Florida before.
” Party @ @ @ @ @ @ @ the Florida coördinated campaign could not have been more uncoördinated .
Some blamed its top leadership ; others pointed to the quality of the work done by consultants , who have become central to the state Party ’ s operation .
One source bemoaned a “ consulting cartel , ” led by familiar faces who this person believed were more concerned with securing commissions than winning elections .
The adviser to the Biden campaign in Florida blamed the pandemic for the Party ’ s struggles this year .
“ We just started too @ @ @ @ @ @ @ adding that COVID-19 infections were always a concern .
“ It was a moral decision for us.
” The Biden campaign maintained a strictly digital operation until early October , when canvassing and other in-person activities resumed .
In the lead-up to the election , Biden , Harris , and Barack Obama visited the state multiple times , but all their events were held in front of small and sometimes exclusive crowds .
Meanwhile , the Trump campaign carried on its field operations as if the pandemic were a thing of the past @ @ @ @ @ @ @ , and thousands of people , most not wearing masks , rallied to see the President and Vice-President speak .
At three polling sites in South Florida during early voting , Trump supporters publicly disparaged voters wearing Biden T-shirts and hats , calling them “ Comunistas !
” and “ baby killers.
” Several of them told me that they did not display campaign signs outside of their homes , because making such a statement carried too high a risk .
At a time when politics had become tribal , they found a @ @ @ @ @ @ @ the car rallies , which drew together hundreds or even thousands of Biden supporters .
Wills and Ferrera had proposed to state officials that the campaign have a presence in cities such as Hialeah , a Republican stronghold where Clinton had tied Trump in 2016 .
Hialeah is home to the largest number of Cuban-Americans in the country and also has some of the highest numbers of Obamacare enrollees .
Ferrera believed that Democrats could pull votes away from the G.O.P.
, as they had four years earlier .
State campaign leaders questioned @ @ @ @ @ @ @ communities .
The day before the election , Wills , Raphael , and other volunteers gathered early in the morning in a one-story house in Little Havana and set up their own war room .
Nearly half of the Latino electorate in the state had not voted yet .
“ The Hispanic vote in Miami-Dade could still swing to Trump , ” Raphael said on a call with her team that morning .
“ If we can save the county , if we can save Florida , we can save the country.
” @ @ @ @ @ @ @ on phone-banking or canvassing .
Ultimately , the team decided to do both , but to narrow its focus , owing to a lack of resources .
With less than twenty-four hours to go before Election Day , they would reach out only to female voters , since many men favored Trump .
“ We can not waste our time with limited resources on Latino men , ” the senior staffer said .
The next day , Wills and Ferrera drove to another area of Miami-Dade County , which they said was overlooked @ @ @ @ @ @ @ city , known for its sprawling farms , is home to one of the largest concentrations of Mexican voters in the state .
Voters appeared to know little about what to do with their vote-by-mail ballots or where to go to vote in person .
One woman poked her head over her front door , looking wearily at her visitors .
“ I have COVID and still have symptoms , ” she said .
Wills asked the woman if she had requested a mail ballot .
“ No , ” she responded , @ @ @ @ @ @ @ be voting .
A few doors down , they met a middle-aged woman standing by her car .
She said that she had already voted , but her daughter , who was driving from New York that day , would not be home in time to submit her mail ballot .
Wills explained that her daughter could still sign an affidavit that would allow her mother to return the ballot on her behalf .
The woman said that she would try her best to deliver the ballot , which was sitting in her @ @ @ @ @ @ @ at seven .
That day , Wills and Ferrera knocked on more than two hundred doors , looking for people who hadn ’ t yet been to the polls .
In front of a garage door , they met two Puerto Rican women in their twenties and got a hint of what was to come .
One of them had already voted for Trump , and the other was on her way to do so , too .
“ You know who ’ s going to determine this election ?
Puerto Ricans , @ @ @ @ @ @ @ fact that Puerto Ricans had surpassed Cubans as the largest group of Latino voters in the state .
She made the case that Trump had treated them as second-class citizens .
“ For him to be as nasty as he was , and disrespectful , he doesn ’ t deserve your vote .
He doesn ’ t deserve your respect , ” she said .
It wasn ’ t clear whether she had changed their minds .
Hours later , they met Raphael and dozens of volunteers at a drive-in Election Night watch @ @ @ @ @ @ @ screen had been set up , adorned with hundreds of blue , red , and white balloons .
People brandished Biden/Harris flags and waved placards .
They blew plastic trumpets and rang blue bells ; the mood was festive , if guarded .
Behind the stage , Raphael sat in a large , empty room , closely following the vote count with her colleagues via Zoom .
In Miami-Dade and across Florida , no blue wave was emerging .
Biden and Trump were in a dead heat .
All of the down-ballot candidates @ @ @ @ @ @ @ Daniella Levine Cava , who was running for mayor .
“ What the hell is wrong with our country ?
” Raphael asked .
“ Socialismo , socialismo—the campaign had no message to counter that , ” the senior staffer responded .
At eight o ’ clock , results from the Panhandle further boosted Trump .
“ We didn ’ t have enough time , ” Raphael said to her colleagues .
By ten o ’ clock , it became clear that Democrats had lost their fourth statewide race in Florida since 2012 @ @ @ @ @ @ @ of a Democratic repudiation of Trump and his presidency .
Raphael decided it was time for her to address the crowd that had gathered outside .
“ Has it been seen that Mexicans , and Colombians , and Puerto Ricans , and Cubans , and Venezuelans , and Ecuadorians , and Costa Ricans , all of you took pride in your ethnicity .
And , still , you came together as one .
But this campaign let you down , ” she said , referring to Biden ’ s leadership in Florida .
@ @ @ @ @ @ @ the resources that you needed to do your jobs.
” The audience fell silent , but Raphael went on .
“ For that , I must apologize , ” she said , her voice dropping .
“ I must say , we let you down.
” Read More About the 2020 Election • Trump has survived impeachment , twenty-six sexual-misconduct accusations , and thousands of lawsuits .
His luck may well end now that Joe Biden will be the next President .
• What happens if Trump fights the election results ?
• @ @ @ @ @ @ @ Trump stages a coup .
• For the G.O.P.
, the future may look like Florida , which is becoming less white but not much less conservative .
Can Republicans become a multiracial working-class party ?
• Sign up for our daily newsletter for insight and analysis from our reporters and columnists .

On October 29th, Chris Wills, the Hispanic vote director for Joe Biden in South Florida, sent an e-mail to the campaign’s leadership, with the subject line “WE ARE ON TRACK TO LOSE FLORIDA.” In Miami-Dade County, a liberal stronghold, Republicans were ahead of Democrats in turnout by six per cent among early voters and held a lead among Latinos of eight per cent. If immediate action was not taken, Wills warned, Biden would fail to gain the level of support that Hillary Clinton had won, in 2016, in the state’s most populous county. “There is still time to get our vote out,” Wills wrote. “If the response continues to be excuses, the statement made in my subject line will become a reality.” His direct supervisors, members of the campaign’s national leadership and the state director, Jackie Lee, were copied on the e-mail. No one responded. Two days later, with less than forty-eight hours of early voting left, Wills followed up with a second message. “The Republicans wiped out another 40,594 votes from our lead,” he wrote. “Nothing different is being done in our state to change our trajectory towards a loss.” It, too, went unanswered.
On November 3rd, Donald Trump carried Florida by nearly four hundred thousand votes, more than twice the margin that he received in 2016. Four years after Clinton won Miami-Dade by thirty percentage points, Biden performed dismally—beating Trump by only seven per cent. Democrats lost two House seats, along with key races at the county and state levels. To the shock of many Democrats, Trump improved his standing in Miami-Dade in majority Latino, Black, and white precincts alike. Exit polls showed that he won roughly fifty-five per cent of the Cuban-American vote, thirty per cent of the Puerto Rican vote, and forty-eight per cent among myriad other Latino diasporas. Wills was shattered by the results but not surprised. For months, he had been pleading for help. Wills and his fiancée, Daniela Ferrera, a campaign volunteer, have blamed the campaign’s state leadership for contributing to Biden’s disastrous performance in Florida.
Wills and Ferrera, who are both Cuban-Americans, had supported the Republican Party until Trump became the Party’s nominee, in 2015. Ferrera, who is twenty-two, fled Cuba with her family seventeen years ago. “I know what an authoritarian looks like,” she said, noting also that she was repulsed by Trump’s bigotry toward Latinos. Wills, who is thirty-eight, shared Ferrera’s opposition to Trump’s divisiveness and was keen to help Democrats make inroads with the state’s young Cuban voters, who were seen as being more liberal than their parents. A Florida political operative, he believed that the former Vice-President could turn Florida blue. But, after three months working on Biden’s campaign, he grew disenchanted with the state leadership’s field operation and its apparent disregard for the Latino electorate. “It was clear that the resources for the Hispanic team were an afterthought,” Wills told me. “They spat on us, trampled on us, and ran over us.”
A spokesperson for Biden’s state campaign said that it spent hundreds of thousands of dollars on a wide-ranging effort across the state to convince Latinos to back Biden. “Just in the last weeks, we announced a separate six-figure get-out-the-vote investment for Hispanic outreach, which included direct voter contact, paid media for smaller, micro-targeted outlets, and other outreach and events for the Hispanic program,” the spokesperson said. “This funding always emphasized voter-contact efforts.”
But e-mails and documents obtained by The New Yorker show that the campaign’s state leadership did not respond to dozens of requests and warnings raised over the final three months of the race by members of its Latino-outreach team. In interviews, three members of the team said that they were never allocated a fixed budget, were not provided access to a Spanish-language auto-dialer until late September, and did not receive bilingual campaign literature in Miami-Dade until three days before the election.
In an October 15th e-mail, Millie Raphael, a Biden Latino-outreach associate, asked Lee, the Florida state director, for two things: “surrogates” and “a budget.” Raphael argued that the Latino vote in the state could not be won over Zoom. After working on Andrew Gillum’s gubernatorial campaign, in 2018, she recognized that Biden could not win in Florida without greater support from Latinos, who make up seventeen per cent of the state’s eligible voters. Raphael warned that she could not “overstate” the amount of “resentment” that the lack of resources and support was causing among Latino field workers. “The members of your Hispanic team and our grassroots leaders have gone out of pocket financially to accomplish the excitement seen on the streets,” she wrote. “I came aboard this campaign because I knew I could deliver the South Florida Puerto Rican vote. I never imagined that I would be hamstrung in my attempts to accomplish this endeavor.”
For the past eight years, Democrats have experienced deep political frustration in Florida, losing every statewide race since the 2012 Presidential campaign, when Barack Obama beat Mitt Romney. The results of last Tuesday reflected a trend seen elsewhere in the country: Trump’s rising support among Latinos. Although Biden won two-thirds of the Latino vote—much as Clinton did four years ago—the President improved his standing by four points, from twenty-eight per cent to thirty-two per cent. Trump was able to chip at the margins of Latino voters’ support for Biden in Florida, but he also benefitted from the former Vice-President’s underperformance with white voters. Many Democrats believe that the Party has struggled to mount effective field operations in the state to turn out its voters. Fernand Amandi, a Democratic strategist and pollster, said that the state Party’s efforts often prove wasteful and ineffective because they invest little in a campaign’s early stages and then try to make up for it with “hundreds of millions of dollars” in last-minute spending. “It’s much more efficient and strategic to invest a fraction of the money that ends up being ultimately spent in the last two months,” Amandi said. “The Democratic approach to campaigning in Florida is a shell of what the Republican approach is.”
Wills and Ferrera hoped to reverse that trend. After Biden announced his Presidential bid, in April, 2019, they both began working for his campaign as volunteers. They believed that Biden’s centrist positions gave him the best chance of beating Trump and started putting together field events to expand his base in the state. After formally joining the campaign, Wills adapted to its pandemic-based ban on door-to-door canvassing by organizing drive-in rallies and rolling car caravans. When state campaign officials provided no money for such events, he paid for it himself, buying blue masks, placards, and buttons. “I literally had to stand at an A.T.M. to find out how much Wells Fargo would allow me to overdraw to pull out one of these events,” Wills said.
In July, the state leadership came under scrutiny after ninety field organizers submitted a letter to the Florida Democratic Party, accusing the campaign of “suppressing the Hispanic vote” and lacking a “fully actionable field plan.” Two months later, Ken Salazar, the former Secretary of the Interior and a co-chair of the campaign’s national Latino Leadership Committee, requested a conference call with the Florida campaign leadership and members of the Hispanic vote team. Salazar asked if the Latino outreach team had enough resources. State leaders said it did. Wills disagreed but decided to make a separate point. He told Salazar that he was particularly concerned about news that was spreading fast on Spanish radio: that the site antifa.com redirected visitors to Joe Biden’s home page. He said that the campaign was not doing enough to counter the spread of misinformation. After the call, members of the campaign’s state leadership never followed up with Wills about his warning—and he interpreted their silence as a form of retaliation.
Republican messaging to voters in South Florida was riddled with such incendiary claims. In e-mails to its supporters, the Trump campaign cast Biden as “the candidate of rioters, looters, arsonists, gun-grabbers, flag-burners, Marxists, lobbyists, and Left-wing RADICALS.” Kamala Harris was “100% controlled by the Left-wing MOB” and would take over the Presidency shortly after Biden’s Inauguration. An adviser to the Biden campaign in Florida blamed broader political dynamics as well, arguing that the unrest following George Floyd’s death drove some voters away from the Party. “When the protests started, the numbers started to move. We had no control over that,” the adviser said. “We had been dealing with the socialism accusation. We can deal with that. But socialism overlaid on Blue Lives Matter and ‘law and order’ is something else.” In Amandi’s view, the state Party committed “the cardinal sin of electoral politics in Florida with Hispanic voters,”allowing Trump supporters to define it as “the party of socialism and Communism.” The Democratic pollster went on, “As absurd as it is for Republicans to call Democrats Communists, it’s more absurd for Democrats not to directly rebut that labelling, confront it or refute it, and overcome it.”
In mid-September, the billionaire and former New York mayor Mike Bloomberg donated a hundred million dollars to boost Biden’s campaign in Florida. Most of it was spent on television ads, including several produced by Amandi’s communications firm. “They allowed us to do the type of work that frankly should have been done six months before, not six weeks before,” Amandi said. “The people leading the effort are people that have never been successful winning in Florida before.” Party members and political operatives told me that the Florida coördinated campaign could not have been more uncoördinated. Some blamed its top leadership; others pointed to the quality of the work done by consultants, who have become central to the state Party’s operation. One source bemoaned a “consulting cartel,” led by familiar faces who this person believed were more concerned with securing commissions than winning elections.
The adviser to the Biden campaign in Florida blamed the pandemic for the Party’s struggles this year. “We just started too late,” the adviser said, adding that COVID-19 infections were always a concern. “It was a moral decision for us.” The Biden campaign maintained a strictly digital operation until early October, when canvassing and other in-person activities resumed. In the lead-up to the election, Biden, Harris, and Barack Obama visited the state multiple times, but all their events were held in front of small and sometimes exclusive crowds. Meanwhile, the Trump campaign carried on its field operations as if the pandemic were a thing of the past. Volunteers never stopped knocking on doors, and thousands of people, most not wearing masks, rallied to see the President and Vice-President speak. At three polling sites in South Florida during early voting, Trump supporters publicly disparaged voters wearing Biden T-shirts and hats, calling them “Comunistas!” and “baby killers.” Several of them told me that they did not display campaign signs outside of their homes, because making such a statement carried too high a risk. At a time when politics had become tribal, they found a sense of community in the caravanas, the car rallies, which drew together hundreds or even thousands of Biden supporters.
As October came to a close, the campaign had not yet provided the Hispanic-vote team what is commonly known as a win number—the number of votes a candidate needs to secure in order to succeed. Raphael and her colleagues were encouraged to use the Biden campaign’s database to reach voters but found that much of the information in the system was outdated. Frustrated, Raphael turned to volunteers with expertise in the field. In the week before the election, she contacted three hundred volunteers, who made more than fifteen thousand calls to Latino voters. “We were trying to make up for what the campaign hadn’t done,” Wills said. But it wasn’t enough. By the Sunday before the election, a surge in Republican turnout reduced the Democrats’ early lead to less than a hundred thousand votes. In an e-mail to Lee, the campaign’s state director, Raphael shared her exasperation. “The only resources I have been provided are a computer that needs to be returned and 5000 Boricuas Con Biden placards,” she wrote, adding that the placards had arrived in mid-October.“This is an unfortunate, regrettable and somewhat short sighted decision. In 5 days Republicans have cut our lead in Florida in half.”
Wills and Ferrera had proposed to state officials that the campaign have a presence in cities such as Hialeah, a Republican stronghold where Clinton had tied Trump in 2016. Hialeah is home to the largest number of Cuban-Americans in the country and also has some of the highest numbers of Obamacare enrollees. Ferrera believed that Democrats could pull votes away from the G.O.P., as they had four years earlier. State campaign leaders questioned why they would waste time in pro-Trump communities.
Olima Valdes, a Trump supporter, stands beneath a Cuban flag and a Trump flag on Election Night, in the Little Havana neighborhood of Miami. Photograph by Marco Bello / Reuters
The day before the election, Wills, Raphael, and other volunteers gathered early in the morning in a one-story house in Little Havana and set up their own war room. Nearly half of the Latino electorate in the state had not voted yet. “The Hispanic vote in Miami-Dade could still swing to Trump,” Raphael said on a call with her team that morning. “If we can save the county, if we can save Florida, we can save the country.” A debate ensued about whether to focus on phone-banking or canvassing. Ultimately, the team decided to do both, but to narrow its focus, owing to a lack of resources. With less than twenty-four hours to go before Election Day, they would reach out only to female voters, since many men favored Trump. “We cannot waste our time with limited resources on Latino men,” the senior staffer said.
The next day, Wills and Ferrera drove to another area of Miami-Dade County, which they said was overlooked by Democrats: Homestead. The southern city, known for its sprawling farms, is home to one of the largest concentrations of Mexican voters in the state. Voters appeared to know little about what to do with their vote-by-mail ballots or where to go to vote in person. One woman poked her head over her front door, looking wearily at her visitors. “I have COVID and still have symptoms,” she said. Wills asked the woman if she had requested a mail ballot. “No,” she responded, making it clear that she would not be voting. A few doors down, they met a middle-aged woman standing by her car. She said that she had already voted, but her daughter, who was driving from New York that day, would not be home in time to submit her mail ballot. Wills explained that her daughter could still sign an affidavit that would allow her mother to return the ballot on her behalf. The woman said that she would try her best to deliver the ballot, which was sitting in her living room, before the polls closed at seven.
That day, Wills and Ferrera knocked on more than two hundred doors, looking for people who hadn’t yet been to the polls. In front of a garage door, they met two Puerto Rican women in their twenties and got a hint of what was to come. One of them had already voted for Trump, and the other was on her way to do so, too. “You know who’s going to determine this election? Puerto Ricans,” Ferrera said, referring to the fact that Puerto Ricans had surpassed Cubans as the largest group of Latino voters in the state. She made the case that Trump had treated them as second-class citizens. “For him to be as nasty as he was, and disrespectful, he doesn’t deserve your vote. He doesn’t deserve your respect,” she said. It wasn’t clear whether she had changed their minds.
Hours later, they met Raphael and dozens of volunteers at a drive-in Election Night watch party in Miami, where a giant screen had been set up, adorned with hundreds of blue, red, and white balloons. People brandished Biden/Harris flags and waved placards. They blew plastic trumpets and rang blue bells; the mood was festive, if guarded. Behind the stage, Raphael sat in a large, empty room, closely following the vote count with her colleagues via Zoom. In Miami-Dade and across Florida, no blue wave was emerging. Biden and Trump were in a dead heat. All of the down-ballot candidates in Miami-Dade were underperforming, except for Daniella Levine Cava, who was running for mayor.


newyorker--2020-11-10--The Beginnings of a Beautiful Cartoon Collaboration

From “ A Wealth of Pigeons : A Cartoon Collection , ” by Steve Martin and Harry Bliss , to @ @ @ @ @ .

From “A Wealth of Pigeons: A Cartoon Collection,” by Steve Martin and Harry Bliss, to be published by Celadon Books.


newyorker--2020-11-10--How Far Could Republicans Take Trump’s Claims of Election Fraud?

As if to fill the void , on Sunday , former President George W. Bush , the previous Republican in the highest office , issued a statement pointedly supporting the legitimacy of the election results .
“ The American people can have confidence that this election was fundamentally fair , its integrity will be upheld , and its outcome is clear , ” Bush said .
Twenty years ago , it was Republicans who were outraged that Al Gore retracted his initial concession to Bush , refused to concede when Bush was narrowly ahead during recounts in Florida , and @ @ @ @ @ @ @ to certify Bush as the winner , by suing to have the recount continue .
The Supreme Court finally ordered an end to the Florida recount , in Bush v. Gore , on December 12th , 2000 , and Gore conceded the next day .
Now Democrats are calling upon Republicans to accept that Biden has won , and Republicans are looking to legal remedies to try to flip the result .
But , because Biden ’ s win does not hinge on the results in one state , as Bush ’ s @ @ @ @ @ @ @ victory is not as thin , Trump ’ s legal remedies are far less realistic than Gore ’ s were .
Senate Majority Leader Mitch McConnell said , on Monday , that “ President Trump is a hundred per cent within his rights to look into allegations of irregularities and weigh his legal options.
” Since Election Day , Republicans have pursued a smorgasbord of lawsuits , but they have been dismissed or are otherwise unlikely to succeed .
The Trump campaign filed multiple suits in Pennsylvania , Nevada , Michigan , Georgia @ @ @ @ @ @ @ , or demanding that states stop counting ballots or allow closer observation of the counting .
Though some cases are ongoing ( for example , a lawsuit to compel Pennsylvania to impose an earlier date for voters ’ proof of identification ) , the vast majority were quickly dismissed for lack of evidence .
One case that Republicans began pressing before the election has gone to the Supreme Court .
On September 28th , the Pennsylvania Republican Party challenged the state Supreme Court ’ s decision that , notwithstanding the Election Day deadline @ @ @ @ @ @ @ ballots postmarked by that day but arriving up to three days afterward were to be counted .
The case has already produced three orders from the Justices : first , in mid-October , the Court deadlocked 4–4 on whether to lift the state court ’ s order while the Republicans prepared a request to decide whether a state court may alter the state legislature ’ s deadline for receipt of ballots .
The Court therefore left the extended deadline in place for the election .
Second , days before the election , the @ @ @ @ @ @ @ the Republicans ’ petition , again , leaving the extension in place .
And , third , three days after Election Day and before Biden was declared the winner in Pennsylvania , Justice Samuel Alito ordered County Boards of Elections to comply with existing state guidance that mail ballots received after Election Day should be segregated and “ if counted , be counted separately.
” Had Biden ’ s victory ended up depending upon Pennsylvania , or , more precisely , on the mail votes that arrived after Election Day , then a @ @ @ @ @ @ @ must be disqualified would have been relevant to the election outcome .
But the fact that Biden ’ s win did not hinge on any one state deflated the potential for the Supreme Court to decide the election .
The Court could still agree to hear the case , in order to decide whether the Constitution ’ s provisions that “ the Times , Places , and Manner of holding Elections for Senators and Representatives , shall be prescribed in each State by the Legislature thereof , ” and that “ each State @ @ @ @ @ @ @ Manner as the Legislature thereof may direct , ” prohibit state courts from modifying state legislatures ’ election rules .
Even if the answer can ’ t affect this Presidential race , the question could recur in future elections .
But the Justices might bear in mind that any decision could still influence the perceived legitimacy of this election : even hearing this case would fuel Republicans ’ claims that the election procedures were awry , while refusing to hear it would seem to Democrats a vindication of Biden ’ s victory .
@ @ @ @ @ @ @ hard , when Trump ’ s barrage of litigation is extremely unlikely to change the outcome ?
Graham has laid some groundwork for the strategies that might remain even after rebuffs both at the polls and in court .
In an interview with Sean Hannity on Fox News last Thursday , as it became clear that Biden would soon be declared the winner , Graham signalled his approval of the idea that Republican-controlled state legislatures might appoint electors who would cast votes for Trump , even though Biden won those states ’ popular @ @ @ @ @ @ @ the Constitution , which provides that a state “ shall appoint ” its electors “ in such Manner as the Legislature thereof may direct , ” Governor Ron DeSantis , of Florida , also urged people in battleground states to push their Republican legislatures to override popular-vote results .
It would be outlandish for a state legislature to deviate from the wishes of the state ’ s voters .
But states have the power to determine that fraud affected the vote count and choose Presidential electors who do not reflect that supposedly faulty @ @ @ @ @ @ @ could , theoretically , override a popular vote in favor of Biden include Pennsylvania , Georgia , Arizona , Michigan , and Wisconsin .
This possibility remains far-fetched in any of these states , perhaps particularly Pennsylvania , where last month , the Republican majority leaders of the state Senate and House wrote , in an op-ed , “ The only and exclusive way that presidential electors can be chosen in Pennsylvania is by the popular vote .
The legislature has no hand in this process whatsoever.
” The majority leaders reaffirmed that @ @ @ @ @ @ @ Tuesday , a group of Pennsylvania lawmakers announced that it wants the legislative committee to conduct a “ comprehensive examination ” of “ irregularities and inconsistencies ” in the election “ prior to the certification of the election results and the empanelment of Pennsylvania ’ s electors to the Electoral College.
” If several states ’ electors were to diverge from the popular vote , in theory , on December 14th , the Electoral College vote could result in a win for Trump , and , on January 6th , the newly seated @ @ @ @ @ @ @ Trump reëlected .
Alternatively , neither candidate might garner a majority of the electoral votes , in which case the Twelfth Amendment to the Constitution says that “ the House of Representatives shall choose immediately , by ballot , the President.
” Because Democrats retain a majority of the House , one might assume that would mean a Biden Presidency .
But the Twelfth Amendment specifies that each state delegation gets one vote , meaning that a state that has more Republican than Democratic representatives would likely vote for Trump .
Though there @ @ @ @ @ @ @ , there will be more Republican than Democratic state delegations in the House .
Trump could well be the House ’ s choice for President .
Yet another disastrous situation would be if some states ’ officials split and choose rival slates of electors .
This would leave Congress to decide which of the electoral votes from those states to count .
And , even though Trump will likely fail to convince courts to credit his allegations of election fraud , he could still press his fraud claim to Congress and urge its @ @ @ @ @ @ @ votes .
Given Trump ’ s continuing hold on Republican lawmakers , it appears not out of the question that they would take such an appeal seriously .
And , as I wrote last week , if Congress can not ultimately agree on how to count the electoral votes , it is unclear how the Presidential election would be resolved .
Even if the American people wanted the Supreme Court to settle it , the Constitution and other laws would not provide clear means for the Court to decide .
None of these @ @ @ @ @ @ @ Republicans are merely tiptoeing around Trump for the time being , waiting for his lawsuits to fizzle out , and expecting them to show the fraud and illegality claims to be unfounded .
But the more time that passes without Trump conceding , and without Republican lawmakers publicly acknowledging that power will indeed transfer to Biden as a result of the election , the more it is imaginable that a portion of Congress may be persuaded to use the fraud claim to decline to count some electoral votes for Biden , come January @ @ @ @ @ @ @ Monday , contrary to the long-standing practice of the Department of Justice , Attorney General William Barr explicitly authorized federal prosecutors to investigate voting fraud in the 2020 election “ prior to the certification of elections in your jurisdictions.
” ( Barr ’ s decision prompted the resignation of Richard Pilger , the director of the Department ’ s Election Crimes Branch . )
The move , coming at this delicate time , seems designed to improve Trump ’ s chances of influencing states ’ certification of the election results , their appointment @ @ @ @ @ @ @ counting of electoral votes .
It became particularly alarming when followed by Secretary of State Mike Pompeo ’ s statement , on Tuesday , that “ there will be a smooth transition to a second Trump Administration.
” As we have learned in the past four years , it was not one aberrant President , by himself , but rather Trump ’ s hold on important Republican Party officials , that enabled the proliferation of chaos and erosion of norms .
Even now that Trump has lost the election , the death grip @ @ @ @ @ @ @ of his undeniable popularity with Republican voters .
And Republican leaders may expect to be rewarded rather than punished by their constituents for fighting between now and January to prevent a Biden Presidency .
This form of democratic responsiveness , in which leaders need only to appease adherents of their own party , underscores the difficulties that Biden will have in fulfilling his self-proclaimed mandate to unite the country .
There are still significant partisan hurdles to clear before Biden is inaugurated , even though the voters have democratically chosen him as their @ @ @ @ @ @ @ updated to include news developments .
Read More About the 2020 Election • Trump has survived impeachment , twenty-six sexual-misconduct accusations , and thousands of lawsuits .
His luck may well end now that Joe Biden will be the next President .
• What happens if Trump fights the election results ?
• Here is what you can do if Trump stages a coup .
• For the G.O.P.
, the future may look like Florida , which is becoming less white but not much less conservative .
Can Republicans become a multiracial @ @ @ @ @ @ @ our daily newsletter for insight and analysis from our reporters and columnists .

Among the “firsts” associated with the 2020 election, the most norm-shattering of all will be if the candidate who lost never concedes to the one who won. After the major news outlets called the election for Joe Biden on Saturday, Donald Trump switched from insisting, “I won this election, by a lot,” to claiming that his loss was due to election fraud. Trump’s conduct seemingly has not fazed President-elect Biden as he proceeds into the transition; at the least, it was not a surprise, since Trump spent months making ominous and ungrounded predictions of voter fraud. There is, however, a limit to what Biden’s team can do, particularly in national security, if the Trump Administration holds up a transfer of power, as the head of the General Services Administration has done thus far by not formally recognizing the transition.
As if to fill the void, on Sunday, former President George W. Bush, the previous Republican in the highest office, issued a statement pointedly supporting the legitimacy of the election results. “The American people can have confidence that this election was fundamentally fair, its integrity will be upheld, and its outcome is clear,” Bush said. Twenty years ago, it was Republicans who were outraged that Al Gore retracted his initial concession to Bush, refused to concede when Bush was narrowly ahead during recounts in Florida, and then fought Republican state officials’ move to certify Bush as the winner, by suing to have the recount continue. The Supreme Court finally ordered an end to the Florida recount, in Bush v. Gore, on December 12th, 2000, and Gore conceded the next day. Now Democrats are calling upon Republicans to accept that Biden has won, and Republicans are looking to legal remedies to try to flip the result. But, because Biden’s win does not hinge on the results in one state, as Bush’s did, and because the margin of victory is not as thin, Trump’s legal remedies are far less realistic than Gore’s were.
Senate Majority Leader Mitch McConnell said, on Monday, that “President Trump is a hundred per cent within his rights to look into allegations of irregularities and weigh his legal options.” Since Election Day, Republicans have pursued a smorgasbord of lawsuits, but they have been dismissed or are otherwise unlikely to succeed. The Trump campaign filed multiple suits in Pennsylvania, Nevada, Michigan, Georgia, and Arizona, generally alleging fraud, or demanding that states stop counting ballots or allow closer observation of the counting. Though some cases are ongoing (for example, a lawsuit to compel Pennsylvania to impose an earlier date for voters’ proof of identification), the vast majority were quickly dismissed for lack of evidence.
One case that Republicans began pressing before the election has gone to the Supreme Court. On September 28th, the Pennsylvania Republican Party challenged the state Supreme Court’s decision that, notwithstanding the Election Day deadline set by the Pennsylvania legislature, mail ballots postmarked by that day but arriving up to three days afterward were to be counted. The case has already produced three orders from the Justices: first, in mid-October, the Court deadlocked 4–4 on whether to lift the state court’s order while the Republicans prepared a request to decide whether a state court may alter the state legislature’s deadline for receipt of ballots. The Court therefore left the extended deadline in place for the election. Second, days before the election, the Court refused to expedite its consideration of the Republicans’ petition, again, leaving the extension in place. And, third, three days after Election Day and before Biden was declared the winner in Pennsylvania, Justice Samuel Alito ordered County Boards of Elections to comply with existing state guidance that mail ballots received after Election Day should be segregated and “if counted, be counted separately.” Had Biden’s victory ended up depending upon Pennsylvania, or, more precisely, on the mail votes that arrived after Election Day, then a Supreme Court decision on whether those votes must be disqualified would have been relevant to the election outcome. But the fact that Biden’s win did not hinge on any one state deflated the potential for the Supreme Court to decide the election.
The Court could still agree to hear the case, in order to decide whether the Constitution’s provisions that “the Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,” and that “each State shall appoint” electors “in such Manner as the Legislature thereof may direct,” prohibit state courts from modifying state legislatures’ election rules. Even if the answer can’t affect this Presidential race, the question could recur in future elections. But the Justices might bear in mind that any decision could still influence the perceived legitimacy of this election: even hearing this case would fuel Republicans’ claims that the election procedures were awry, while refusing to hear it would seem to Democrats a vindication of Biden’s victory.
Prominent Republicans have largely refrained from acknowledging that Biden has won, and from challenging the President’s allegations of fraud—with the notable exceptions of Representative Will Hurd and Senators Mitt Romney, Lisa Murkowski, Susan Collins, and Ben Sasse, who each publicly congratulated Biden. Some Republican leaders have urged rejection of the results. On Sunday, Senator Lindsey Graham said, “Do not concede, Mr. President. Fight hard.”
But what would it mean to fight hard, when Trump’s barrage of litigation is extremely unlikely to change the outcome? Graham has laid some groundwork for the strategies that might remain even after rebuffs both at the polls and in court. In an interview with Sean Hannity on Fox News last Thursday, as it became clear that Biden would soon be declared the winner, Graham signalled his approval of the idea that Republican-controlled state legislatures might appoint electors who would cast votes for Trump, even though Biden won those states’ popular votes. Referring to Article II of the Constitution, which provides that a state “shall appoint” its electors “in such Manner as the Legislature thereof may direct,” Governor Ron DeSantis, of Florida, also urged people in battleground states to push their Republican legislatures to override popular-vote results.
It would be outlandish for a state legislature to deviate from the wishes of the state’s voters. But states have the power to determine that fraud affected the vote count and choose Presidential electors who do not reflect that supposedly faulty result. States with Republican legislatures that could, theoretically, override a popular vote in favor of Biden include Pennsylvania, Georgia, Arizona, Michigan, and Wisconsin. This possibility remains far-fetched in any of these states, perhaps particularly Pennsylvania, where last month, the Republican majority leaders of the state Senate and House wrote, in an op-ed, “The only and exclusive way that presidential electors can be chosen in Pennsylvania is by the popular vote. The legislature has no hand in this process whatsoever.” The majority leaders reaffirmed that commitment on Friday. But, on Tuesday, a group of Pennsylvania lawmakers announced that it wants the legislative committee to conduct a “comprehensive examination” of “irregularities and inconsistencies” in the election “prior to the certification of the election results and the empanelment of Pennsylvania’s electors to the Electoral College.”
If several states’ electors were to diverge from the popular vote, in theory, on December 14th, the Electoral College vote could result in a win for Trump, and, on January 6th, the newly seated Congress tabulating the electoral votes could declare Trump reëlected. Alternatively, neither candidate might garner a majority of the electoral votes, in which case the Twelfth Amendment to the Constitution says that “the House of Representatives shall choose immediately, by ballot, the President.” Because Democrats retain a majority of the House, one might assume that would mean a Biden Presidency. But the Twelfth Amendment specifies that each state delegation gets one vote, meaning that a state that has more Republican than Democratic representatives would likely vote for Trump. Though there will be more Democratic than Republican members, there will be more Republican than Democratic state delegations in the House. Trump could well be the House’s choice for President.
Yet another disastrous situation would be if some states’ officials split and choose rival slates of electors. This would leave Congress to decide which of the electoral votes from those states to count. And, even though Trump will likely fail to convince courts to credit his allegations of election fraud, he could still press his fraud claim to Congress and urge its members to disqualify some states’ electoral votes. Given Trump’s continuing hold on Republican lawmakers, it appears not out of the question that they would take such an appeal seriously. And, as I wrote last week, if Congress cannot ultimately agree on how to count the electoral votes, it is unclear how the Presidential election would be resolved. Even if the American people wanted the Supreme Court to settle it, the Constitution and other laws would not provide clear means for the Court to decide.
None of these doomsday scenarios are likely yet. Perhaps Republicans are merely tiptoeing around Trump for the time being, waiting for his lawsuits to fizzle out, and expecting them to show the fraud and illegality claims to be unfounded. But the more time that passes without Trump conceding, and without Republican lawmakers publicly acknowledging that power will indeed transfer to Biden as a result of the election, the more it is imaginable that a portion of Congress may be persuaded to use the fraud claim to decline to count some electoral votes for Biden, come January 6th. In the meantime, on Monday, contrary to the long-standing practice of the Department of Justice, Attorney General William Barr explicitly authorized federal prosecutors to investigate voting fraud in the 2020 election “prior to the certification of elections in your jurisdictions.” (Barr’s decision prompted the resignation of Richard Pilger, the director of the Department’s Election Crimes Branch.) The move, coming at this delicate time, seems designed to improve Trump’s chances of influencing states’ certification of the election results, their appointment of electors, and Congress’s counting of electoral votes. It became particularly alarming when followed by Secretary of State Mike Pompeo’s statement, on Tuesday, that “there will be a smooth transition to a second Trump Administration.”