Biggest Democratic House Since Nixon Resigned, and Red States Moved the Most

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:33 Thomas: Hello and welcome to Opening Arguments. This is episode 1312. I'm Thomas. That over there is a, I'm sure, exhausted but quite contented Jenessa election expert. How are you doing?

0:00:40 Jenessa: Yeah, a little tired over here. Been pretty busy.

0:00:49 Thomas: That's got to be a good tired. I'm sure you've had some bad tireds in your career.

0:00:50 Jenessa: Yes. Yeah, for sure. And this one was a good one. I know, I've always advocated we should have Election Day as a holiday. That would make it so much easier for many people to vote. I didn't realize I needed the day after Election Day as A holiday. Day, yeah.

0:01:01 Thomas: Yeah. Yeah. Let's make it a week. Let's election week, everybody.

0:01:09 Jenessa: If you work in elections, you absolutely need that Wednesday off. I definitely got up late and took some time because, oh boy.

0:01:20 Thomas: Hey, you know, it's cool. We possibly in either, if not in January, in maybe a couple of years, could have the numbers to do something like make election day a holiday. We can actually talk about things that are possible. Isn't that weird?

0:01:36 Jenessa: Incredible, honestly, honestly, where we're at. The lead in Mississippi is growing by the minute.

0:01:42 Thomas: Yeah, that one, I think that one seems like a done deal to me, but you'd know better.

0:01:46 Jenessa: Pretty much. So yeah, we'll talk about that. And only got like three complaints this year, and One of them was extremely manageable. So New York voting, at least as far as people who know me to reach out to me, New York voting went very well. Minor hiccups, we had a big hiccup in Westchester, they fixed it, yeah, lots to talk about.

0:01:53 Thomas: Wow.

0:02:10 Thomas: All right. So is that our plan?

0:02:11 Jenessa: We're just going to talk results, what's changed, interesting stuff. I did a whole bunch of data analysis for you. I think I may have an exclusive for you because I'm not seeing anyone else reporting what I found in my data about the shift. So that'll be fun.

0:02:24 Thomas: Nice. All right. Some exclusive data analysis. I'm excited. Well, we better get to it. Why don't we take our first break and then we can talk all the data you want to. Hey, support the show, patreon.com/law. We were going to have the Law'd Awful Movies out, but Matt really barely could record the two things we did. His voice just is, man, poor guy.

0:02:46 Jenessa: It's bad. Oh.

0:02:47 Thomas: Yeah, he We had like recordings planned and then I was like, you know, let's let's put this off because it was just not sounding good. But we'll get to it. We promise. And patreon.com/law is where you can support his, I'm sure, cough medicine habit now that he that he has, you know, unless he's hit some harder drugs. I don't know. We'll see whatever he needs to do. You know, I support it. So that's where you can go to support it. And of course, Jenessa's data analysis as well.

0:03:04 Jenessa: God.

0:03:15 Jenessa: I'm like sweaty from doing all this analysis as fast as I could, so.

0:03:21 Thomas: Wow, that's, I don't know if that's good, I'm not sure if that's good or bad. But either way, we have talked about on the Serious Inquiries Only how much energy your brain does actually take, so your brain crunches crunches the numbers. Oh, funny story, I've talked about on other shows, but Arlo is obsessed with Godzilla. We took the kids to see the new Godzilla, which I thought he would be just going nuts over because it was IMAX, so I was like, dude, dude, you're going to love this. It's IMAX. We get about halfway through and the dude falls asleep.

0:03:27 Jenessa: Oh. My God. Yeah.

0:03:42 Jenessa: Oh. No.

0:03:51 Thomas: And he's, he's a Godzilla like super fan. He loves this. But then Lydia pointed out after she's like, yeah, well it is subtitles. Cause it's Japanese. He has to read. This poor kid had to read subtitles for an, he's in second grade. Dude is an amazing reader for his age. Oh yeah.

0:04:04 Jenessa: So He can read. But that's

0:04:06 Thomas: He's, he's an incredible reader for his age, but yeah, for an, for a second grader to to read for like an hour and a half. I think he just was like, uh, my brain quit. I asked him because usually when I ask him like, Hey, why'd you fall asleep? He'd be like, cause I was bored. You know, like he just is like, when he gets bored, he just quits. But this time I asked him, why'd you fall asleep? And he's like, I don't, I don't know. So I think maybe he was just really exhausted.

0:04:07 Jenessa: A lot.

0:04:22 Jenessa: Yeah. Oh. Cute. Yeah.

0:04:31 Thomas: So that's, I, I'd like to think that's also what you were doing. I'm sure after this

0:04:35 Jenessa: My God, yes. I'm gonna crash after this.

0:04:37 Thomas: You can settle down for a nice Godzilla nap and, uh, okay, we'll take a break and we'll get right back to it. Right, where, where does one even begin?

0:04:48 Jenessa: Good question, I've been staring at, like, I had a notes document open and I was just like, oh God, where do we go first? Um, yeah, it was a pretty good night, huh? Um.

0:04:59 Thomas: Yeah, we've covered that, uh.

0:05:02 Jenessa: From reporting, according, I'm hearing, the last time Democrats held this many seats in the House was the election after Nixon resigned. It's that level.

0:05:12 Thomas: We Are you saying we beat, we beat 2010, or

0:05:15 Jenessa: In terms of like how big the wave was, the bigger wave for Democrats happened in 74. Like it's that level. We've definitely beat anything in the modern era for Democrats. Unbelievable this shift

0:05:18 Thomas: Hmm. Really? We still haven't hit the house majority of 2008 Because we won 257 in 2008.

0:05:37 Jenessa: I think we're on track to do better than that is what it is.

0:05:39 Thomas: You think so? Holy shit. Oh, maybe, you know, maybe you are right. Maybe you are correct.

0:05:41 Jenessa: I'm pretty sure. Let me tap the House real quick. We got 253. We have how many uncalled? 20.

0:05:47 Thomas: Yeah. How many are still? Holy shit.

0:05:52 Jenessa: Of those 20, 1, 2, 3, 4, 5, 6, 7 are currently leaning blue.

0:05:59 Thomas: So we're, so we're on track to get like two, what, 60 something?

0:06:02 Jenessa: Like that.

0:06:03 Thomas: Holy crap.

0:06:04 Jenessa: Somewhere in the 260 range. I'm gonna say there's quite a few red races where, like, North Carolina three, the Republican is up by 233 votes, may well go blue, who knows. The ones where the Republican is currently up 5,000 votes in Maine, too, with 95 percent of the vote in, like, that's probably going to go Republican.

0:06:24 Thomas: So we're on track to hit even more than the 257 that Democrats got in 2008. Wow. That's crazy.

0:06:31 Jenessa: And then when you take into account the Senate and the governors, that's where you can assess even more like, oh, Wow, this was big. This was really big. I guess the first thing I would say is, um, in terms of who was going to win, the polls did great terms of margin, which does in fact matter if we want to understand how polls work. This was a miss against Democrats a lot.

0:06:35 Thomas: Well, sure. Yeah.

0:06:45 Thomas: Right. Yeah.

0:06:54 Thomas: Yeah. I was kind of saying that. Yeah. In the stream or what, where it's like, yeah, we don't care as much when it goes, when it basically gets the binary outcome, right. We're like, yeah, okay. But it, it's could be way more off than ever. It potentially could be. And you wouldn't notice if you're like, yeah, no, it called the, the trend, you

0:07:01 Jenessa: Right. Exactly. Yeah.

0:07:12 Jenessa: In 2016 the overall polling error was about three points, but we talk about it like it's the worst polling in the universe because people had such a strong prediction that Hillary was going to win and it flipped. This is, uh, arguably more than I I think it is more than three points, depending on the pollster you look at, of Amiss, just in the same direction. So who cares, right? There was, for example, a Marist College poll had the generic ballot at plus 11 for Democrats, which is like wild. And after applying their likely voter model, it became zero.

0:07:25 Thomas: Hmm. Hmm.

0:07:50 Jenessa: It's just neck and neck, back. That is, people are too scared in the modern era to be like, "I think it's going to be a blowout." Like, it's just tempting to not say that, just in case, I guess.

0:08:01 Thomas: Hmm. Yeah. Yeah. No one wants to call a blowout. Like they just, it's, there's no incentive to.

0:08:08 Jenessa: Is like a general psychological thing, like that, where even, like, totally apolitical, nothing ideological, if you you just ask people to guess, like, what percent of people have done this, what percent of animals live here, whatever. If the answer is like, the true answer is like near zero or near a hundred, people are just so reluctant to pick that. Like, they always hedge and come down into to the 80s.

0:08:34 Thomas: Yeah. Just think about personally, if you were predicting something, you're like, it's going to be a blowout. And then if it's like you barely eke out a victory or you lose, you look like an idiot in both situations. Whereas if you, it is a blowout, then okay, you look great. If you predict, like, we're going to win, then if you you barely win, you look good. If you get a blowout, you look good. And, you know, it's like, it just gives you more it's just like a game theory thing, like, it just gives you more outcomes where people are okay with you.

0:08:47 Jenessa: Right.

0:09:04 Jenessa: Exactly. I think that's and even if that's not intentional, that's obviously happening in the background. Humans do this stuff. It's not just a mindless computer. Predicted like generic ballot, we've talked about this before, the generic ballot will never actually get tested. You will never have all of America show up and vote for just the generic idea of a Democrat.

0:09:27 Thomas: Yeah.

0:09:28 Jenessa: So we don't get to officially ever test it for sure. But if you average together the 435 House seats, going to get something close to what the national shift looked like, you the prediction was across, you many pollsters, like somewhere around like eight or nine point shift, which means in a close state, you're great. But, you know, in a place like Mississippi, where you normally lose by 20 points, that's not going to work. What actually happened across everybody is about a 14, 15 point shift. What I have done for you is broken this down by blue states and red states and swing states, because I started to notice something the night of the election.

0:10:15 Jenessa: And the more I looked, the more it looked real. So I pulled the data together. I'm not just, you know, going to vibes it. In red states, the shift is closer to 20 points, which kind of explains how we got here. Looking at the Senate, there were, uh, 10 Senate seats up. All but one had an incumbent. Collins is our only Republican in a blue state, I believe, here. And she actually outperformed all the Republicans, uh, pretty much.

0:10:44 Thomas: That's why I was telling Lydia, on where there's woke she had that corruption thing that came out, that just it didn't even affect her. It really didn't.

0:10:46 Jenessa: Which Get Her fired, at least, like, huge problem.

0:10:55 Thomas: Map that we we're admiring, with the blue arrows. Maine is the one place where there's a bunch of red arrows. There's like a, there's like one in some other States. Uh, Maine has like five or more. No, I think that was even more than that. And, uh, it's crazy. I don't, what is, what is that woman's superpower? I don't know what it is. She's good at what she does. I'll give her the credit for that. I don't know how she does it.

0:10:57 Jenessa: Yeah. Yeah. Yeah. I There's something I did notice, too, we should talk about. What incumbency bonuses look like, because in general I think it's overblown, but it seems to be the case that, um, blue incumbents in in particular, did well this time. And there's Collins, an incumbent in a red state. I think there's just something about if you are the opposite color of your state. Maine reliably votes blue in the presidential, for example.

0:11:19 Thomas: Hmm. Yeah.

0:11:39 Jenessa: If you are a Democrat elected in a red state, a Republican elected in a blue state, there's something about you that they like, or there's something weird about your state. But

0:11:48 Thomas: Well, there's so few of those these days, Like,

0:11:50 Jenessa: True. So if they held it, They've been holding it for a reason. They continued to hold it for a reason. The shift in Maine was, nevertheless, between 2026 and 2020, it was a 15-point shift.

0:12:04 Thomas: 2026 and 2020? Oh.

0:12:06 Jenessa: Yeah, who so got elected in 2020 are up this year.

0:12:10 Thomas: You're just comparing the Senate to this? Okay, gotcha.

0:12:12 Jenessa: Yeah, it's like the best comparison I could find is 2026 versus 2020. 2020, a very weird year, which is why I also compared it to 2022 and 2024 race in the same state.

0:12:18 Thomas: Is it, if it's, if 20 is a presidential and I Yeah. I feel like that's the better way to go.

0:12:28 Jenessa: The problem there is in Maine, um, in the 2024 Senate election, it was Angus King, who is an independent, and a Democrat in that race pulled 10 whole percent of the vote. So the gap between King and the Republican is enormous. If the Republican had those 10 Democratic points, which you can't really count on, the margin that year would have been like four points instead of 17. It's a little tough to compare with Maine. They have an independent and a Republican, and yet they reliably vote blue in the presidential. Like, what are we doing? It's a mess. Just looking at the Senate, I took our average differences and, you know, there's the margin between the Democrat and the Republican, which is enormous in some cases, smaller in others. The way I picked red and blue and purple states is I averaged the gap in the presidential over the last three presidentials, like the Trump era.

0:12:35 Thomas: Um, yeah.

0:13:25 Jenessa: And if you were between five and negative five, you're a swing state. That was absolutely not a priori. What it is, is Florida was slightly above five. And I was like, Florida, I can't call Florida swing state, I just can't do it anymore. In the last presidential, they were like plus 14 for Trump. I'm not calling you purple. That picked out our purple states. And when we see the margin on average across all the states, because there were a lot of red states, the difference is pretty, um, bad. But the Democrats and democratic states on, on average, won by 25 points. And Republicans were down seven points. So when we do a shift, right, how much bigger is the victory in 2026 versus 2020?

0:14:14 Jenessa: On average, across all the contests, it's about 12 points towards Democrats. But if we just look at the blue states, it's about nine points. And if we look at the swing states, it's about nine points. The polls kind of nailed it for blue and swing states, but in the Republican states it was 15 points.

0:14:34 Thomas: Well, isn't that going to be a nature of like how these things can change? I mean, in a, in a state that's already blue, you don't have as much room to change, you,

0:14:45 Jenessa: It could be, it could be a seal, but then the same thing was true in the swing states, where the margin is normally very, very close.

0:14:51 Thomas: Could what have explained that been been way more Republicans staying home, because I think that would like if Republicans are staying home, the reddest states would have the biggest effect, right?

0:15:02 Jenessa: That should be true, I, I would argue it should be true in the swing states as well, but

0:15:06 Thomas: I guess it just depends mathematically on the proportions. But the more Republicans you have, the bigger the difference it'll make if if they're staying home en masse, right? Potentially, I guess it just depends on the ratio.

0:15:09 Jenessa: Yeah. Potentially. Um, it depends. Depends on a lot of factors, of course. But one of the things that I have the data for, it, and I haven't gotten through the analysis yet, is I think we're going to have quite a few where the turnout gap cannot explain it. And it's going to have to be new voters or Republicans who voted Democrat.

0:15:36 Thomas: Oh, switch voters.

0:15:37 Jenessa: Yeah. Yeah. It's looking like that's going to be a big explanation because turnout's not down on average.

0:15:37 Thomas: Oh, I actually think Yeah. Right.

0:15:47 Jenessa: I'm going to have to pull it together by state to see the extent to which that happened in red states.

0:15:52 Thomas: Well, again, and that's always the interesting thing. If one Republican stays home and one Democrat is like, or, you know, person who voted Republican versus person who voted Democrat is like, I'm going to get out there and vote. That looks like the same turnout, but it could be, it just depends on who stayed home.

0:16:06 Jenessa: Exactly. So it is hard to know. There will be exit polling that tries to do this, where obviously we can't look at how you voted and say you're a Democrat, and the ballots are anonymous. Anonymous, but exit polling, you can say, how do you identify yourself normally and how did you vote, and look at the comparison. Um, based on those exit polls, it looks like it's a small percentage, but a small percentage of Republicans did flip. I think it went like from 98 to like 92 percent were Republicans who voted red. It's not nothing.

0:16:33 Thomas: That Makes sense. Oh, I think it's, I think they wanted to send, a they actually wanted to send a message for once, like Think I think that's what took this from like a good election to an insanely historical one.

0:16:41 Jenessa: Think so. Think that is it.

0:16:48 Thomas: In today's era, you don't often have people of the one party being like, I'm actively going to vote for the other party, just like it does not happen as much.

0:16:55 Jenessa: No, no. I tried like 15 different ways to slice this on. Is there an incumbency bonus? Because a whole bunch of red states didn't have an incumbent. And nine out of 10 blue states had an incumbent. So, oh, shit, is it just explained by that? The average incumbency bonus I found was about two points in this year. And it like hovers around that for the different years. So it's like, oh, that's interesting. It's not as big as you'd think until you separate it by type of state. For the last eight elections, Republican incumbents in red states had a huge disadvantage.

0:17:17 Thomas: Hmm.

0:17:37 Thomas: Sorry, say that again for

0:17:38 Jenessa: Yeah, if we compare an incumbent, a race where they had an incumbent and a race where they didn't. So you would think the incumbent should do better. Right.

0:17:46 Thomas: In what, I think the years was the part I was, I thought you said like for the past how many years.

0:17:50 Jenessa: So I have data from 2026, 2024, 2022 and 2020, only for the contests that were up this year, because obviously they weren't up this year. I can't really do a good comparison. Person. If you compare, oh, there was an incumbent in 2026 and there was an incumbent in 2020, then it should be, all things being equal, there's no incumbency bonus, right? And we can see what the shift looks like without that. And it's about what we've been saying. If you compared, there was no incumbent in 2026 and there was no incumbent in 2020, okay, it should be, all things being equal, just the shift minus the incumbency bonus, right? Instead, what I am seeing is if you were a Republican incumbent, you've been doing worse since 2020, 2022, 2024, and 2026. It looks like incumbency is hurting you, like they're not happy with their own party.

0:18:45 Jenessa: I sliced, sliced it so many different ways, and it just, the pattern kept emerging. I'm not super confident of it yet. I would like to do more analysis, but at a minimum, I think incumbency is overrated is what I would say.

0:18:58 Thomas: Sounds like it, especially in a gigantic wave election where everybody's mad, the more mad everyone is, probably the less advantage it is.

0:19:02 Jenessa: Yeah. Right. Right, because if they're mad at you, they, they just want a new face. And if they can't stomach voting for a Democrat, they're going to vote for some other Republican, you know. I think that could explain some of this. It could explain why the swing states, you know, they're swingy, so they don't tend to have an incumbent in them. Out of the swing states that I identified, five had a Senate race, and the only incumbent was Zasov in Georgia. Every other swing state was trying for the first time to make it happen, both people in it. If I switch over to the governors, the average shift across every state from 2026 to 2022 in governor's races is about 13 points.

0:19:51 Thomas: Hmm.

0:19:51 Jenessa: In the blue states, it's about 11. And in the red states, it is about 16. We're hovering between 15 and 20 in these red states over and over again. The House, where we get, a ton of data. The typical shift was 14 points, but for Republicans, it's 17 points. The red states shifted hard. The blue states, partly it can be, there's there no further to go, right? Obviously, if it was 90% last time, It can't be 110 this time.

0:20:26 Thomas: Yeah.

0:20:26 Jenessa: But the real ceiling isn't 100. the day Nixon resigned, he had a 25 percent approval rating. Some people who are just not going to flip. So if we think the real ceiling for at least statewide things is somewhere around 75 to 70 percent. Yeah, quite a few blue races were already there. So there wasn't much room to grow.

0:20:35 Thomas: Yeah, for sure.

0:20:50 Thomas: Hmm.

0:20:51 Jenessa: Whereas a lot of these red seats swung really, really hard, which takes us to Mississippi. You might remember we talked about this, I'm gonna forget the episode number, but we were talking about the Watson case at the Supreme Court, which was, can you still count an absentee ballot after the election is over? They said yes by a narrow majority. It was a big fight. Gorsuch was a whiny baby about it. That was Mississippi as the defendant trying to say, I should be able to keep counting absentees even after the election is over.

A very red state was like, hey, why are you interfering in my elections? It made for an ideal case there. Why is Mississippi taking so long? Up to five days after the election, absentees can still arrive and be counted. There's no way they're going to call it before that. This is way too tight. Also there are affidavit ballots that have to get cured. I think they, they have the same deadline for, uh, both the absentees to arrive and to, I, I feel like it would be hard to tell somebody, you, we are taking too long, so it's over, you're not going to

0:21:13 Thomas: Okay. Yeah. Hmm.

0:22:09 Jenessa: Be able to do that, but you have five days to get here and show me your ID because you didn't, Mississippi requires ID, you showed up without an ID, you had to vote provisional, you got a certain amount of time to show up and show your ID. Um, those ones will eventually get cut off, so if you live in Mississippi, or you know anybody who lives in Mississippi, uh, tell them to check whether their ballot was counted. If they know they voted provisional, they need to be taking steps to cure it immediately.

0:22:36 Thomas: Yeah. No kidding. That's kind of important right now. Like 201,

0:22:40 Jenessa: It really is. The morning after the election, the gap was 43 votes. Mississippi. How many people in Mississippi stayed home because, oh, it's a lost cause? Probably more than 43 people. And it was 43 in favor of the Democrat. It is now, as of like literally right now, this is the 6th at 5 p.m. As of right now, the gap in favor of the Democrat is 2,498 votes. Curing provisionals and getting new absentees is heavily favoring the Democrat, which pretty much means it's going to go for him. We are going to flip Mississippi.

0:22:46 Thomas: Jeez. Yeah, for sure.

0:23:22 Thomas: Crazy.

0:23:23 Jenessa: The Senate race in Mississippi with the same woman was the incumbent in 2020 and in 2026, Hyde-Smith. Back in 2020, she won this seat by 10 points. And this year, she's on track to lose that seat. So it's about a 10-point shift in Mississippi is all it took. Now, I'm saying all it took. That's a huge gap.

0:23:52 Thomas: Yeah.

0:23:52 Jenessa: But really, if you think, I think 54 percent voted for the Republican and 43 percent voted for the Democrat. It's a lot easier to overcome that if a Republican flips because it's a minus one and a plus one. So that might speak to that as well. Black turnout was way up in the South, which always helps. Helps.

0:24:10 Thomas: Yeah. I think that's the story of Mississippi. I'm seeing black turnout's insane. The black population is 35% of the whole state, I want to say, I think is the figure I saw. And their turnout was huge. And they voted 98 percent for Democrats, which is like that's that's awesome. I mean, that's what did it.

0:24:26 Jenessa: Yeah. For sure. Uh, they did not have a governor's race, which would have been nice, because, uh, really, getting rid of the voter suppression in Mississippi would be extremely helpful. Um, that's a problem across the South. Um, we talked about on the live, that's going to be huge in Texas to have a blue governor. If they can change voter suppression laws, maybe Texas becomes blue. I mean, Texas just had like a 20 point shift. So don't get too excited that that will happen every year.

0:24:35 Thomas: Yeah. No kidding.

0:25:00 Thomas: Yeah.

0:25:00 Jenessa: But what we have for Texas, Tallarico just won by 12 points. Polling had that race like neck and neck the whole time. The last time the Republican won by nine points. So we are at a 21 point shift, 22 once you round up in Texas. It's enormous. Enormous, the Texas governor's race, it's an 18 point shift, so you could probably give about three points to the fact that he's a white boy pastor, but the other 18 points are explained by the country shifting in the state. Shifting, Gina in a hosa is the, gonna be the new governor, the first Latina governor of Texas, and she did almost as well in that race. Um, they have a blue AG now. Um, I believe what I last saw was Ted Cruz will be the only statewide Texas Republican. Oh.

0:25:41 Thomas: Yeah. Yeah. What a funny. He did a little like I didn't watch it, but he did some sort of podcast or video about that. And it was just so, it's so perfect. Like he was the one who was like, all right, surely if we can pick off one Republican, it would be this asshole. We can't do it. We can't do it. We can't do it. And then because of the, just the, it's just the sheer timing of it. I mean, if, if he had been up, he would have lost by 40. Like there's just no way. Nobody likes him.

0:26:21 Jenessa: My God. Yeah. Think that's what this shows. He

0:26:26 Thomas: Yeah. Like he would have lost by even more.

0:26:29 Jenessa: 2024 he won by eight and a half points, so whether you compare it 2026 to 2020 or to 2024, we're still looking at a 20 point shift in Texas, which I think is important because 2020 was just such a weird year. You, everybody could vote absentee, and yet we have like people turning out in Georgia who didn't turn out in the last three presidential, the last three elections, which includes two presidentials, so we still have turnout going way up even compared to the easiest possible election to vote in. It's looking really strong across all of these, uh, shout out to Louisiana for shifting 27 and a half points, they still didn't flip the seat, but I know.

0:26:46 Thomas: Yeah. Wow. Oh, man. Yeah.

0:27:20 Jenessa: The 2020 this same Republican won it by 29 points, so 27 and a half was not enough to get it done, but holy shit. That's huge. Nebraska is a 32 point shift.

0:27:31 Thomas: Gosh. Came close. Wow.

0:27:38 Jenessa: That was the one where we had Rickets versus the incumbent who might as well be a Democrat.

0:27:42 Thomas: Likely rickets, everybody. Yeah.

0:27:46 Jenessa: And then there was the that independent who might as well be a Democrat. And then that other independent in there took 3% of the vote. Who knows if that made the difference, but the, uh, independent slash Democrat lost it by six points this year. But last time this Republican was up, the Republican won it by 38 points.

0:28:06 Jenessa: So like Nebraska being almost in play is wild.

0:28:06 Thomas: Yeah, that's crazy. You know what never ceases to amaze me? When you look at these numbers and you look at the Senate races and you realize like, wow, we flipped Mississippi. We got, you know, 408 voters and they got 406. And then you look and you're like, that person has the same amount of power as the New York or the California or the whoever, the Texas even senator who got 11 bajillion votes. It's such an anti-democratic institution. The Senate abolished the Senate. I know we're not going to, but it's that's why racists and idiots get to have so much say in our government. We get, we just, we decided to give these red States for summary of, for slavery reasons, the same amount of say, and they, they have nobody in them.

0:28:59 Thomas: Not that those people aren't like they should get a say, but it should be proportional to everybody else. You know, it should be like just the house essentially. Like we should just have the house.

0:28:32 Jenessa: Yeah. Yeah. Yeah. Uh, yeah, exactly.

0:29:07 Thomas: Even that would be distorted.

0:29:09 Jenessa: Somehow Wyoming got deleted out of my house data, which, oh no, it didn't. It'll be up here.

0:29:13 Thomas: No big loss.

0:29:14 Jenessa: Wyoming has one seat this year. It was 20 points towards the Republican. The Wyoming's our most Republican state. However, last 2024, last house race, the Republican won by 47 points. A 26 and a half point shift in Wyoming, our reddest state. That's the house. In their Senate race, the Republican won by 30 points, but last time they won by 46, six points. So a 16 point shift in the Senate race. It's never over. It's never hopeless. Every one of these extremely red states shifted. What I was worried about was that we were going to see a shift, but it was going to be Democrats really activated. So the blue states would get even more blue, but that wouldn't do anything to a very red state. That is the exact opposite of what we saw, some combination of Democrats getting activated in red states, and I think there has to be some amount of either Republicans staying home or flipping because

0:29:29 Thomas: Wow.

0:29:44 Thomas: There you go.

0:30:06 Thomas: Yeah, there definitely is.

0:30:21 Jenessa: The gap is too big for it to be like, oh, it's always been the case that Mississippi was practically 50-50, it just took people like remembering to go vote, that can't be it. 75 of states are going to have a blue governor in the next, uh, seating. So we've said this before, huge governors. Oh my god, it's so, it's so much more important because, because they are determining, often they are appointing to the highest court in their state, to the appellate courts. They are able to veto voter suppression bills and turn that into, you need a two-thirds majority for voter suppression. You're not going to get that. There's so much they're going to be able to control. Role. One of the things that's getting a lot of attention that I want to talk briefly about is the national, Interstate Popular Vote Compact. I, it doesn't trigger until there are enough states to make it effective.

0:30:39 Thomas: Amazing.

0:31:26 Jenessa: So essentially, if your state is in it and enough states are in it, what they'll do is instead of assigning electors based on the popular vote within the boundaries of your state, they will assign electors based on the population of the United States, the popular vote. Where their electoral votes total more than 271, more than 270, all say we will allot our electoral votes according to the national popular vote. That's it. The national popular vote always wins.

0:32:00 Thomas: Yeah.

0:32:00 Jenessa: I know people raise concerns a lot about like, well, a red state's going to sign up, but the second it screws them over, they're going to switch. It's legally not possible. And it's also kind of physically impossible. Imagine, for example, Nebraska, where they do, I believe, three of the four are

0:32:09 Thomas: Yeah. Oh, they have that weird one. Yeah.

0:32:20 Jenessa: Where some of their electoral votes are assigned by a district and the rest are like every other state. Them in Maine do this. New York just assigns 100 percent of its electoral votes based on New York's popular vote. And that is what almost every state does. But Nebraska says if this district votes blue and the rest of the state votes red, we'll toss you one electoral vote. And every once in a while, that super matters.

0:32:28 Thomas: Yeah. Yeah.

0:32:47 Jenessa: Imagine if the results came back and it said Nebraska has to give three to the Republican and one to the Democrat. And they said, just kidding. We're going to change the law about how we assign our electoral votes now that we've seen what happened. That is not legal. You cannot change your method of allotting electors in between the election and the seating. Or else you could New York could be like, oh, I guess we'll just do well. We'll always do all blue. But, you know, some swing states like let's split ours in half. Like you can't you can't do that, you could a red state pull out of the compact because it keeps screwing them over year after year? Yes. Could they do it after seeing that the popular vote went blue, but the electoral votes would have gone red? No. Not possible

0:33:40 Thomas: They had, they had some Supreme court cases recently about this, Right? You know, we've talked to Lawrence Lessig on here a few times, and he was uh, he argued for the faithless electors case, um, which I think was decided, decided ultimately in 2020, I want to say, let's see. Yeah. And so that was, and I remember his whole thing was, and I think it's important to what you're saying. His whole thing was like, we need the stupid Supreme court from my memory. Anyway, we need the Supreme court to make a decision.

0:33:43 Jenessa: Yeah.

0:33:56 Jenessa: About right Right.

0:34:09 Jenessa: Mm-hmm.

0:34:09 Thomas: It's either gotta be, and it's like, whichever one, honestly, I think his thing was like, whatever it is, just, you have to tell us, can electors be faithless? And because I mean, mean, honestly, that's kind of what they were for, you know, like none of us want that now because it doesn't sound democratic and it probably isn't, but like the only function of having an electoral college would be for the electors to be able to have some say, otherwise, like, there, there's no, there's literally no point, like there's just dividing the people into different, you know, like it's like a mail system. Yeah.

0:34:26 Jenessa: Right. Yeah.

0:34:40 Jenessa: Like classes. Yes.

0:34:42 Thomas: Well, it's like it would be literally like just delivering the mail. There's no reason. But like that's ultimately what we decided it was. We decided it is delivering the mail.

0:34:47 Jenessa: Right. Right. Yes. It's ministerial.

0:34:51 Thomas: Yeah. And so they they I believe based on the basis for what you're saying, that decision was like, no, they can't do that.

0:34:51 Jenessa: Yeah.

0:35:00 Jenessa: Remember if it was that or if it was states are allowed to say you can't do that. So the states that have a punishment for being a faithless elector are still allowed to say, no, no, no, you don't get to not do what we sent you there to do. Because, like, realistically, I don't, yeah, I vote for an elector. No, I don't. I don't even know their name. And I would have no way of knowing I want to pick this one and not that one because this one is more likely to be reliable. Like, that's not how any of it works anymore. So being able to tell your electors, "You have a purely ministerial role, cut it out," actually contributes towards this, that states get to decide what they do with their electoral votes.

0:35:45 Thomas: Yeah.

0:35:45 Jenessa: We already know Nebraska and Maine do it. So the primary legal challenge that is anticipate, I don't know if it's necessarily going to happen, but like somebody is going to fight this. Right.

0:35:55 Thomas: It just happened, though. I don't think so. So this is Chiafalo and, oh, okay, gotcha. But just to put the bow on that then, yeah, they literally did, it was related to this too. So the electoral college states can require them to back the victor of their state's popular vote, which would be the compact we're talking about.

0:35:58 Jenessa: Oh, no, no. I'm talking about something else. Yeah.

0:36:13 Jenessa: Right.

0:36:14 Thomas: And it gives the states the right to compel the faithless electors to cast the electoral ballots for the candidate chosen by their state's voters. And so, yeah, that's that. It would be crazy for some, I mean, I guess they could challenge it, but the idea that the Supreme Court is going to overturn their own precedent from like 2020 on this. I doubt it. I doubt it.

0:36:23 Jenessa: Yeah.

0:36:34 Jenessa: Right. Right. I think the one legal challenge that is like it's not meritless nonsense or asking them to overturn a decision five minutes later is If a bunch of states that cross 270 form this pact, the other states like don't matter anymore. More. Their electoral votes mean nothing.

0:36:42 Thomas: Oh, so how it already is. Yeah.

0:36:56 Jenessa: On the other hand, their popular votes will still mean something. You would have to get real procedurally nitpicky to be like, oh, you can't do that. Interstate compacts are a thing. States have done it before. You'd have to argue like the interstate compact between New York and New New Jersey is hurting Delaware in a way that's illegal. And it's like it's not simple. So essentially, do I know that these states that now have a blue trifecta, that if they sign on, we will cross 270? Do I know that that legislature is going to do it? Do I know that that governor is going to sign it? No. But we are in that position where enough states have a blue trifecta To get it done.

0:37:01 Thomas: Yeah. Yeah. The funny thing is, how much does this matter? These days, not a ton. I mean, we should do it because it's stupid, but I'm just I don't think it's gonna like we didn't lose any elections after I guess Hillary was the last one where it mattered the the electoral college.

0:38:00 Jenessa: Yeah, Biden won the popular and the electoral college. Hillary won the popular and lost the electoral college, but then if you go back from that

0:38:04 Thomas: Yeah. Yeah, Al Gore, yeah, there's that, but I mean I just mean recently it's it's the the Trump one is the last one

0:38:11 Jenessa: Yeah. Counting the most recent Trump one where he actually got the popular in the electoral college, I think it's the first time a Republican won the popular vote in like 20 years or something ridiculous. You have to go all the way back to like Bush two, Bush one before that happened, and it wasn't, oh yeah, it's Bush two.

0:38:24 Thomas: Yeah. That's true. Now, It's Bush too.

0:38:37 Jenessa: Because Bush one was also that split, obviously, for the Senate and the House it doesn't a matter. For just the presidency, I think it's not unrealistic to think we will continue to have a climate where Republicans are unlikely to win the popular and likely to win the electoral. Not if it shifts like this. If this happens in 2028, we're gold.

0:38:38 Thomas: Yeah.

0:38:51 Thomas: That could happen again.

0:39:01 Thomas: Yeah.

0:39:01 Jenessa: We shall see.

0:39:02 Thomas: No, we should do it. Don't get me wrong. I'm not, I'm not poo-pooing it. We should do it. I just pointing out that it's interesting that after Trump won, we thought it was like, that was the, that was the whole thing. Like we just, we got to change this. The electoral college is killing us. And it's really didn't factor in after that. And it's kind of interesting to think about.

0:39:05 Jenessa: Oh, yeah.

0:39:20 Jenessa: With Biden, the popular vote win was like, what, eight million votes and in the electoral college it was like, oh, shit, this was really close.

0:39:25 Thomas: It was close. Yeah, it's true. It was was close. You're not wrong. So it could, it could have definitely factored.

0:39:29 Jenessa: Yeah, but, 2024 was not close. It was close, but not like down to the wire kind of close, you know what I mean? Yeah, it's uh, it's interesting. I don't know what the odds of that actually happening are. You'd have to know some very quirky beliefs about these new blue governors to really know what they're going to do. One thing that seems to have happened, I'm going to send you a picture, of the dummy mander appears to be real.

0:39:59 Thomas: Yeah.

0:39:59 Jenessa: That. They made this Republican more vulnerable in order to try to make that Democrat vulnerable. And what you end up with is, oh, shit, you made all the seats vulnerable. If you switched it to presuming a five point shift and you ended up with a 10 point shift, guess what? You lost. The picture I just sent you is the Indiana state legislature. You might recall they were trying to redistrict and it lost. If they had done the redistricting that was attempting to get rid of a bunch of Democrats in Indiana and like make it 100 percent red, if they had done what they wanted to do, every seat would have flipped blue except for one.

0:40:48 Jenessa: The dummy mander is real. I still think it was the right move to try to stop Indiana from doing that because at the time they were doing it.

0:40:47 Thomas: Yeah, for sure. Oh, of course. Yeah.

0:40:55 Jenessa: Nobody could have predicted what was going to happen and this level of wave. I mean, I'd be very surprised if it happens again, but nevertheless, they, they could have really screwed themselves. They tried their hardest to screw themselves over, which I think is the theme of this election.

0:41:01 Thomas: Yeah. You can't bank on that.

0:41:11 Thomas: Yeah. I mean, we kind of called that, you know, I don't, I wouldn't say we definitely predicted it, but we, when we talked about it, when you talked about it, it was like, well, okay. I mean, if they're pretty confident and if, if they, if if there's a swing, it can really go the other way. I feel like you were on that. And, you know, I feel like, you know, that, that is the danger. It's it is about the swing though. Like the, their cheating would definitely have worked in certain circumstances.

0:41:35 Thomas: It's just that again, too big to rig. That really is the key.

0:41:27 Jenessa: Yeah. Oh, yes. Absolutely. Absolutely. Like, for example, you know, we talked all about like what fake voter fraud nonsense looks like. What is the real stuff look like? The real how do you steal an election is not by doing something illegal. It's by in Mississippi, for example, where the gap is very small. It only takes tossing a small number of ballots on the basis of it's provisional. And like those are arguable or this absentee arrived a day late or like challenging these ballots to say, no, no, no. Hang on. Toss them out. Toss that one out like that could flip a race that's that close. And it would be legal, but it would be underhanded and shitty.

0:42:26 Jenessa: It's too big to pull off, even those things that are real concerns in any state right now. And I think that's reflected in, you know, you and Matt mentioned, like, I haven't seen any, like, Republicans being like, "Oh, it's rigged, it's stolen," like,

0:42:43 Thomas: Yeah. It's not worth it.

0:42:45 Jenessa: No.

0:42:46 Thomas: It's not worth the effort.

0:42:46 Jenessa: It's too big in too many places to debate it. Instead, they're just fighting with each other, which is delicious. Also, shout out to Richard Hudson, the Republican who was the chair of the National Republican Campaign Committee, lost his seat. You want to just a representation of how bad the campaigning went, the guy whose job it is to tell you how to campaign lost his seat. So That one's fun. Know Matt mentioned in the live stream, Virginia, they passed a number of ballot measures, including automatically restoring the right to vote felony convictions once you leave prison. And something that's getting under attention that was also built into that is it also restored the right to vote if you have a guardian.

0:42:52 Thomas: Yeah. Yeah. Yeah. Times What Does that mean exactly?

0:43:42 Jenessa: Guardianship or conservatorship. You remember Britney Spears where, yeah, her dad was like controlling everything in I want to say 11 states now that Virginia is out of it. It is still the law that if you have a guardian or a conservator, you just can't vote. No, like I getting to argue it or anything.

0:43:44 Thomas: Right. So Britney can vote? Yeah.

0:44:03 Thomas: It's not as though the guardian gets to just, like, do your vote. Like, there's just no vote. That's

0:44:06 Jenessa: You just don't get to vote, period. And in many states like Maine keeps putting it on the ballot and failing to pass. Yes, people with a guardian can vote. And it's a huge problem because in Maine, if you have a mental illness, you just like it's so easy to get a guardian. And like most people with a mental illness have a guardian in Maine. So you just like can't vote because sometimes you're not with it enough to handle your finances. Like, but that's that doesn't.

0:44:42 Thomas: So weird.

0:44:42 Jenessa: Yeah. Like, I think about, so many people in New York are autistic and have a guardian and arguably don't even need it. But, you know, their parents did it when they were turning 18. And, like, every parent, you're panicking because your child is about to be legally independent from you. And maybe they benefit from it with help managing the finances or contracts or whatever, whatever, maybe they don't, and people just automatically seek it because everybody's telling you that's what you should do. Either way, they're some of the most informed voters I talk to because They're paying attention to what's going on and educating themselves on what do I need to know to pick the right person. And a lot of disability advocates who are, are very set on, "I need to vote for people who support disability rights, who support Social Security disability insurance. That's something that I need to survive." There really is no logic to a blanket ban on, you have a guardian, you can't vote. And a whole bunch of states have it, and Virginia got rid of it.

0:45:17 Thomas: Nice.

0:45:48 Jenessa: Yeah, congratulations, Virginia. School boards Courts are flipping, courts are flipping. Texas flipped so hard. And recall that the Texas school board is the one that decides on textbooks because they're the biggest consumer.

0:45:54 Thomas: The Texas Yeah.

0:46:05 Thomas: We covered it on Dub to Dub, Lydia, Lydia. Yeah.

0:46:07 Jenessa: Oh, yeah. Awesome.

0:46:08 Thomas: We covered it. Yeah.

0:46:09 Jenessa: I haven't got a chance to listen yet.

0:46:09 Thomas: No. No. No. Of course, too busy. It's, that's a good, good one. That's a very important one.

0:46:13 Jenessa: Oh, my God. Yeah. Think about, these senators are in their seat for six years, like, this isn't gonna wear off tomorrow. The House seats are up every single even year election, they can swing like crazy, but like these governors often have four to six year terms they're in and They're gonna stay in, even if things swing to the right in 2028, I don't think so, or 2030, probably. That's our trend.

0:46:41 Thomas: They Probably.

0:46:41 Jenessa: Probably.

0:46:41 Thomas: Will, yeah, yep.

0:46:42 Jenessa: Will. They're still there. They're gonna be there, and they're not gonna be up for re-election until, for the senators, like 2032. This is really good. Good.

0:46:52 Thomas: It's Great. It's nice to be on the other end of that, you know, it's nice to be on the other end of that because the, the same thing happened for them in 2010, that's when they snuck in a lot of the, because, like, obviously 2010, they, you know, again, it's just, it's, it's so infuriating that we, we had a wave election because of the most unpopular president who got us into the worst war that you have, you know, in however many years of American history. And then, two years later, because, because we elected a black man, two years later, it's like it swung unbelievably the other way and as a result of that, what was under the radar, and we've, you know, I've talked about in the, in the decade since then, a lot of people have obviously, is the state, kind um, of redistricting and all that stuff. And so, so that's when they really began the major nationwide redistricting and gerrymandering effort that before was obviously happening, but it wasn't like as

0:47:01 Jenessa: I think that's right.

0:47:24 Jenessa: Mm hmm. Hmm.

0:47:44 Thomas: Organized as that. And that was mainly because it just so happened, as a luck of the calendar, that the year there wasn't any, like, a priori reason for that. It was just like the luck of the calendar was the year that they had this big backlash to a black president happened to also coincide with when you get to decide the maps and all that.

0:47:45 Jenessa: Right.

0:47:54 Jenessa: No.

0:48:05 Jenessa: Right.

0:48:05 Thomas: That really did a lot of damage. It is very nice to be on the other side of that particular luck on this, where it's like, you know, a lot of this is luck. Like it's luck that that that Trump did is badly lucky in that like Democrats weren't Democrats weren't controlling Trump doing the Iran war, you know, so it's like it's it's it's luck in the sense. Yeah, like it is not lucky that we're the ones who are against the Iran war. That's because we are. But it's like the fact that he did such a stupid series of things is really incredible. Like the amount that he just effed himself, he could, he could have, if he had any judgment, he could have maintained a reasonable amount of popularity. Like so many of this was unforced

0:48:11 Jenessa: Yes. Right. Everything aligned. Right. Yeah.

0:48:48 Thomas: Errors. So much of this was unforced errors. And we get to benefit from that. And like you say, these positions are locked in many of them for four, many of them for six years of the Senate positions for six years. Some of the governorships, you know, I guess it varies by state, but like that is a big deal.

0:49:03 Jenessa: Yeah. Yeah. Most of these governors will be governor for the 2030 census.

0:49:07 Thomas: Fantastic.

0:49:08 Jenessa: That's huge because that's redistricting. The latest exit poll I saw, yeah, the number one issue is the economy. It's always the economy. So screw that. What's the number two? Corruption. Number three was the Iran war. People were actually saying, I care the most about corruption. And that's why it turned out, yeah, it's the price of eggs, but like it's not just the price of eggs, it's it's everything. One more thing to send you out on: if you look at Mississippi, you are going to see Ty Pickens, the independent, pulling 2.1 percent of the vote, and it would be very easy to go, what are you doing?

Um, saw an interview with him today where he said, I got into this race to win, and then it became obvious I was not going to win, but I was also told that 70 percent of the people who were going to vote for me are Republicans, so he's a black man, he's like, I did not campaign in black neighborhoods, what am I doing, I'm going to try to pull their vote away from the Democrat? Why would I do that? I went to Republican areas and campaigned.

0:49:45 Thomas: Hmm. Yeah.

0:50:06 Thomas: Nice. Hey, he went to Republicans who wanted to send a message with their vote.

0:50:10 Jenessa: And told them they had that option. So, always look closer with those third party candidates. Sometimes they're a spoiler. Sometimes they are your greatest ally, apparently.

0:50:12 Thomas: Nice. Yeah. Well done. Yeah. Yeah. Fantastic. Good stuff. Well, Thanks so much for that analysis, Jenessa. The good news continues. It's just a great week. It's been a great week, and it'll continue to be a great week. I can't get over this. So much fun.

0:50:37 Jenessa: Good talking to you.

0:50:41 Clip: This has been Opening Arguments, produced by Thomas and Lydia Smith, with editing help from Peter Baird. The intro is by Thomas Smith. This outro is by Matt Cameron. Support the show at patreon.com/law. Contact us through Patreon or openarguments@gmail.com. Make sure to follow our blue sky, at OpenArgs. But most of all, please share the show. Thanks for listening.

0:51:13 Jenessa: Gorsuch was a whiny baby about it. That was the one where we had rickets