The Volokh Conspiracy

Over two dozen former aides to Senator Max Baucus are now tax lobbyists in Washington, D.C., Ezra Klein reports.  This is significant because Senator Baucus is Chairman of the Senate Finance Committee and any reform of the tax code will go through him.  This makes those with Baucus’s ear in high demand.  Access to politicians isthe key to successful lobbying, and personal relationships are far more effective in this regard than campaign contributions.  Notes Klein:

the point of hiring Baucus’s former aides isn’t that they can seamlessly insert any language they want into the final legislation. It’s that they have a direct line to Baucus, and to the people around Baucus, and that gives them a huge advantage. The fact is that human beings are more likely to find arguments convincing when they’re coming from friends rather than strangers or enemies.

That’s the key to most of the lobbying in Washington. It’s not about leveraging bribes so much as it’s about leveraging relationships — and that makes it harder to stamp out.

Klein seems to recognize that campaign finance reform does little to counter this effect, as the relationships between lobbyists and political figures are far more important than the cash.  But it’s worse than that, because traditional campaign finance regulation can actually make things worse.  Such regulations can actually increase  the relative influence of former legislative staffers and, as a consequence, further tilt the playing field in favor of large, established political interests by limiting other sources of money.

Because campaign funds must be raised in such small increments, it takes politicians far more time — more receptions, more phone calls, more meetings — to raise the amount of money necessary to mount a campaign.   Thus there’s less time to study issues, listen to constituents, meet with the less connected, and build new relationships with other elected officials (especially those across the aisle).  This makes established relationships that much more valuable.  Former staffers are a known quantity and — with time at a premium — the ability of lobbyists to provide ready-made research, talking points, and legislative language is more valuable to the elected official.

Limiting lobbyist influence is particularly difficult because, among other things, its constitutionally protected.  The  First Amendment protects the right “to petition the Government for a redress of grievances.”  Laws that seek to close the revolving door between Capitol Hill and K Street can only do so much.  The law may prohibit a former staffer from lobbying on a particular issue for a given amount of time, but it doesn’t prohibit all contact, and is making an introduction or vouching for someone else really lobbying?

If there are limits to how much lobbying can be controlled, the question then becomes whether lobbyist influence can be counter-balanced by other forces — and here’s where campaign finance regulation comes in again.  It’s  difficult enough to compete directly with a Senator’s former staffers for the Senator’s attention and allegiance — but even more so if other avenues of political influence are cut off.  Why consider what another interest or citizen group has to say if there’s no consequence from ignoring them?  The harder it is for outside groups to present their views to the public or support challengers, the less an incumbent politician needs to consider such concerns.  Shut out competing voices, and status quo interests are that much more secure.

James Taranto is not persuaded by some of the arguments against the GOP plan to change Virginia’s method of awarding electoral votes from winner-take-all to allocating votes based on the winner of each congressional district and awarding the remaining two votes to the candidate who wins the most districts. Nonetheless, he opposes the plan because he believes it “would be likely to promote cynicism and confusion.” Larry Sabato goes farther, labeling the plan “a corrupt and cynical maneuver to frustrate popular will and put a heavy thumb — the whole hand, in fact — on the scale for future Republican candidates.” Even if, as Taranto notes, there’s no guarantee that the new plan would permanently benefit Republicans, there’s not even a pretense here that there is some principle independent justification for the switch — which is reason enough to reject it.

No proposal to reform election laws or procedures, however well reasoned, is authored behind a veil of ignorance as to its likely partisan effects. So it’s no surprise that partisan positions on the merits of individual reforms are inevitably influenced by partisan interests. This makes it difficult enough to push sensible election law reforms in today’s hyper-partisan environment. Naked power plays like that proposed in Virginia only make this problem worse. Republicans need to (re)learn how to win elections by appealing to voters, not rigging the rules in their favor.

In a recent Slate article, Rob Goodman and Jimmy Soni claim that the history of the fall of the Roman Republic strengthens the case against the Supreme Court’s decision in Citizens United, which ruled that the First Amendment protects corporate and union political speech against restriction by government. The influence of money in politics, they claim, was what brought down the Republic. Dubious analogies between the modern US and ancient Rome are all too common. This one has two serious flaws: the problematic use of money in ancient Roman elections involved outright bribery and corruption rather than merely spending on speech; and even that wasn’t really what caused the republic to collapse.

As Goodman and Soni recognize, the financial corruption that plagued ancient Rome was not spending on campaign speech, but flagrant bribery of voters and public officials:

Ancient politicians were just as skilled as modern ones at identifying and exploiting loopholes in election law. In Rome, the key loophole lay in the fuzzy distinction between ambitus (electoral bribery) and mere benignitas (generosity). Roman elections were often won on the strength of free food, drinks, entertainment, and sometimes hard cash offered directly to voters and financed by private fortunes. In fact, Roman campaign slogans were sometimes inscribed on the bottom of commemorative wine cups—you could drain the cup and find out whom to vote for. Most of the Roman elite relied on the gentleman’s agreement that the line between bribery and generosity would not be strictly patrolled. At worst, rank vote-buying was something your opponents engaged in; you, on the other hand, were simply being a good neighbor....

Politicians able to afford the massive bribes were usually able to afford protection after the fact. Worse, with no enforceable limits on spending and a heavy premium on one-upsmanship, the price of elections skyrocketed. Five years before the republic collapsed, Cicero made an astonishing claim: The wealthy had injected so much cash into election season that the interest rate in Rome temporarily doubled.

Nor could the power of money be confined to election season—its influence spread throughout the republic’s government. Rome had long sent politicians to govern a province after their year in office; ultimately, they felt entitled to fleece those provinces in order to recoup their election losses, a practice that spread deep resentment of the capital. The biographer Plutarch records bribery of civil servants, who were paid off to erase debts owed to the public purse. Jury verdicts, too, were regularly bought and paid for.

The problem with electoral bribery is that bribed voters vote for whoever pays them off rather than based on their perception of the public good. By contrast, political speech – whether financed by corporations and unions or not – is only effective if it persuades the public. And, Mitt Romney’s notorious comments notwithstanding, the overwhelming evidence is that voters generally do not form their political opinions on the basis of narrow material self-interest. The problem with modern voters is not that they are selfish, but that they are often ignorant and irrational. That problem cannot be solved by restricting corporate and union-funded political speech. Obviously, corporate and union-funded speech sometimes seeks to exploit political ignorance. But the same is true of speech funded by the media, political parties, activist groups, and others. In a political environment where the electorate is often ignorant, whoever is allowed to engage in electoral speech has a strong incentive to take advantage of that ignorance.

Second, while electoral bribery was a real problem in ancient Rome, it was not the cause of the Republic’s downfall. Rather, as I discussed here, the standard explanation for that collapse is that, as the Romans built a vast empire that encompassed most of Europe, North Africa, and the Middle East, the government in Rome lost control of its far-flung military forces, which were often more loyal to their generals than to the state. As a result, ambitious generals such as Marius, Sulla, and, finally, Caesar were able to march on Rome and take over the government. To the extent that money was important here, it was not electoral spending but the generals’ ability to cement their troops’ loyalty by rewarding them with plunder, increased pay, and free land – often at public expense.

Goodman and Soni conclude that the real problem in both ancient Rome and modern America is the perception of corruption that undermines the legitimacy of the government, which they imply is in large part caused by Citizens United. But decline in public trust in government long predates Citizens United, and was not even significantly accelerated by it. Moreover, if the government should have the power to suppress speech that creates a perception of corruption, that rationale would justify going far beyond censoring corporate or union-funded campaign speech. It would also justify suppressing speech by groups like Occupy Wall Street, which claim that the political system is rigged to benefit “the 1 percent” at the expense of “the 99 percent.” Speech by politicians, activists, and members of the media who directly claim that the system is corrupt surely contributes to the appearance of corruption at least as much as speech funded by corporations and unions, which often focuses on other issues.

Various arguments can be made against Citizens United, and against the alleged corruption of modern politics more generally. But strained analogies to ancient Rome add little to the debate over these issues.

The ever-iconoclastic Judge Richard Posner has a column in Slate defending the Electoral College. Although the Electoral College is somewhat undemocratic, in that a candidate may win the election without securing a majority of the popular vote, Posner identifies five practical reasons for keeping it in place. I am not sure I agree with all of them. For instance, however much I like my adopted state of Ohio, I am not convinced that we have the most “thoughtful” voters or that the focus on swing states improves the substance of the campaign. On the other hand, I do agree with him that the Electoral College is more likely to produce a certain outcome than the popular vote and, on the margin, does more to encourage candidates to appeal to multiple regions of the country (even if it also encourages pandering to some regional interests). He also notes the Electoral College produces a “majority” winner, whereas the winner of the popular vote often gets less than fifty percent of the vote. In the end, it’s also not much of an argument that the Electoral College is “undemocratic.”

No form of representative democracy, as distinct from direct democracy, is or aspires to be perfectly democratic. Certainly not our federal government. In the entire executive and judicial branches, only two officials are elected—the president and vice president. All the rest are appointed—federal Article III judges for life.

It can be argued that the Electoral College method of selecting the president may turn off potential voters for a candidate who has no hope of carrying their state—Democrats in Texas, for example, or Republicans in California. Knowing their vote will have no effect, they have less incentive to pay attention to the campaign than they would have if the president were picked by popular vote, for then the state of a voter’s residence would be irrelevant to the weight of his vote. But of course no voter’s vote swings a national election, and in spite of that, about one-half the eligible American population did vote in last week’s election. Voters in presidential elections are people who want to express a political preference rather than people who think that a single vote may decide an election. Even in one-sided states, there are plenty of votes in favor of the candidate who is sure not to carry the state. So I doubt that the Electoral College has much of a turn-off effect. And if it does, that is outweighed by the reasons for retaining this seemingly archaic institution.

Canadian legal blogger Leonid Sirota has posted an interesting response to my post advocating extension of the franchise to politically knowledgeable children. He argues that it is unjust to require children to pass a knowledge test for voting, but not adults. He would therefore prefer to lower the voting age to 16 instead:

Pour ma part, je pense que l’option du vote à 16 ans est préférable à celle d’un test. Au-delà problèmes d’administrabilité évoqués par prof. Somin, ce sont arguments qu’il apporte lui-même qui semblent militer contre l’instauration de tests pour les mineurs. S’il n’y a pas de bonne raison de traiter les jeunes différemment des adultes, et les arguments de prof. Somin pour dire qu’il n’y en a pas sont très convaincants, alors il est sûrement injuste d’instaurer un test pour les premiers mais pas pour les seconds. Si les connaissances du système politique devraient être un critère pour pouvoir voter, il n’y a pas de raison pour ne pas appliquer ce critère aux adultes.

Sirota’s post is in French, which I understand, but most of our US readers probably don’t. I would translate the key passage roughly as follows: “If there is no good reason to treat the young differently from adults, and Prof. Somin’s arguments that there isn’t one are very convincing, it is surely unjust to institute a test for the former, but not the latter. If knowledge of the political system should be a prerequisite to getting the right to vote, there is no reason not to apply that criterion to adults.” If I have gotten the translation wrong, I hope Sirota or one of our French-speaking readers will correct me.

I am not convinced by Sirota’s objection. It’s true that my proposal doesn’t eliminate all unequal treatment of children and adults. Children would have to pass a test to be eligible to vote, whereas adults would not. But the same is true of both the status quo voting age of 18 and Sirota’s proposal to cut it to 16. In both cases, people younger than the voting age are categorically denied the franchise solely because they are minors. My proposal doesn’t completely eliminate the unequal treatment. But it does reduce it by at least giving children some opportunity to vote.

I would prefer to minimize government policies that discriminate on the basis of age. But there are some cases where age is so closely correlated with some important ability that it’s difficult to avoid. In this case, it’s undeniably true that children, on average, have much lower political knowledge than adults. And political ignorance is a serious problem that we don’t want to exacerbate by, say, allowing completely ignorant six year olds to vote. Giving the vote to knowledgeable children both diminishes the extent of age discrimination in voting policy and actually increases the average knowledge level of the electorate. It’s a win-win situation all round.

Why not, then, require adults to pass a knowledge test as well? As Sirota says later in his post, this is not a completely ridiculous idea. But it does have two serious flaws. First, as I discuss in an earlier post, there would be a serious danger of potential partisan bias in the design of the test. I’m not certain we can overcome them even with a test confined to children. But the danger is much greater if the test applies to all voters rather than just a small subset.

Second, there is a big difference between using a test to expand the franchise to a group that has always been barred from it, and using it to take away voting rights from millions of people who have them now. The latter is both politically infeasible and quite likely unjust as well. In general, I’m not a big fan of Burkean conservatism. But this is one of those areas where Burkean suspicion of drastic change is probably justified. Allowing knowledgeable children to vote isn’t subject to the same objection, since it is likely that it would alter the composition of the electorate only modestly. Probably only a small percentage of children would both want to take the test and be able pass it.

My proposal is far from perfect. It wouldn’t completely eliminate age discrimination in voting rights, and it certainly isn’t a complete solution to the problem of political ignorance. But it could well be a genuine improvement over the status quo on both fronts. I think that’s reason enough to at least give it serious consideration.

UPDATE: Sirota has put up a response to this post:

I think that what drives the disagreement between us is that we have different views on what justifies the denial of a legal right to vote (note that I am only talking about the legal situation―prof. Somin makes the case, in a separate post, that there is something like a moral duty to abstain from voting on issues or candidates about which one is ignorant, and I agree with him on that). In prof. Somin’s view the key factor is political knowledge, and lack thereof. I think that the real issue is not so much knowledge as maturity and capacity for judgment.

It is true that minors are generally less knowledgeable about politics (and other things) than adults. But they are also, on average, less mature and less capable of responsible judgment, and the law recognizes this diminished capacity by making them, depending on their age, less criminally liable, incapable of entering into (certain kinds of) contracts, etc. At least in criminal cases, it is quite clear that the reason for the distinction made between minors and adults is not knowledge of the relevant facts, but capacity for judgment. I think that it is the reason for the other distinctions too. Note, too, that the one category of adults to whom we uncontroversially deny the franchise are those too mentally ill, too lacking in judgment and decision-making ability to be responsible for their own decisions; such people have guardians, just like children do. They need not be ignorant―but their judgment faculty is severely impaired.

Now, in those areas where―I think―the law makes distinctions on the basis of age that are grounded in maturity and capacity for judgment, it usually does so by drawing bright lines.

Obviously, some degree of judgment is necessary for almost any decision. But in my view, there is a big difference between a situation where we are making choices in our own personal lives (e.g. – signing contracts, to use one of Sirota’s examples), and decisions where we are choosing rulers for an entire society. The former kind of decision usually requires only a modest amount of knowledge, and it is reasonable to assume that anyone with reasonably good judgment could acquire it. By contrast, good judgment of the sort that enables us to make effective personal decisions is not the most important factor in making voting decisions. There, we need knowledge of how policy affects people in very different circumstances from our own. The key ingredient here is not judgment of the kind that helps us make personal decisions, but knowledge of how large-scale political and economic systems work. Personal experience and judgment is only of limited relevance. A person can easily be an above-average quality voter while displaying poor judgment in their personal life, and vice versa. I make that case in more detail here. My guess is that any child who has more political knowledge than the average adult is also likely to have enough judgment to analyze that knowledge at least as well as the average adult eligible to vote (which may, of course, not be a very high level of competence in an absolute sense). On net, therefore, my proposal would still improve the overall quality of the electorate, even if perhaps only slightly.

Even with respect to criminal law and contracts, I think that knowledge plays a bigger role in the law than Sirota suggests. One big reason why we distinguish between minors and adults in these areas is that the latter are less likely to understand the true consequences of certain contracts, or of criminal acts. They may also be less likely to realize that a given act is wrong. That’s also a major factor in the differential legal treatment of the mentally insane. Indeed, the traditional legal definition of insanity actually defines it in terms of lack of knowledge: the defendant gets off if, as a result of his mental disease or defect, he (i) did not know that his act would be wrong; or (ii) could not understand the nature and quality of his actions.

It’s also worth noting that Sirota’s proposal of reducing the voting age to 16 without imposing tests of either knowledge or judgment would result in a reduction of the quality of the electorate on both dimensions (assuming, of course, that 16 to 18 year olds on average have worse judgment than adults). And, as I previously noted, it would continue to engage in more blatant age discrimination than my idea, since those under 16 would be forbidden to vote regardless of their level of knowledge or how good their judgment might be.

Finally, contra Sirota’s description of my view, I don’t necessarily regard it as a “mistake” that we have extended the franchise to include all or nearly all adults. As discussed above, I’m skeptical that we can trust government enough to come up with a knowledge test that would apply to the entire electorate. Creating a knowledge test that applies only to children poses fewer risks of abuse.

Beginning today, pundits are going to offer a wide range of explanations for Obama’s victory. But I think the simplest and most obvious is that he won because the economy had improved just enough since 2008 to give him the edge. As I pointed out back in September, standard models of presidential election outcomes based primarily on economic variables predicted, on average, that Obama would get 50.2% of the popular vote. Although late West Coast results will increase this total slightly, it looks like he actually got about 50.4%. That’s a very close match.

The econometric models generally assume a two party race. In reality, two third party candidates, Libertarian Gary Johnson (1 percent) and Jill Stein of the Green Party (0.3%) got statistically meaningful shares of the vote. If we plausibly assign most of Johnson’s vote to Romney and most of Stein’s to Obama, we end up with a roughly 51-49 split in a hypothetical “pure” two party race. We get a similar result if we throw out the third party votes and just look at Obama’s share of the 98.5% of the electorate who voted Democratic or Republican. Obama slightly outperformed economic expectations, but not by much. Republicans who thought that the state of the economy gave Romney a huge advantage forgot that voters care about the directional trend as well as the absolute situation.

In my view, much of the electorate gave insufficient weight to the possibility that Obama’s policies made the recovery weaker than it otherwise would have been, and they also likely gave him too much credit for at least some recovery that would have happened regardless of who was in the White House. Economist Casey Mulligan recently published an important book defending the former theory. If you believe that the TARP bailout was the key to recovery (which I do not), it’s worth recalling that George W. Bush and John McCain both supported it. It would surely have proceeded apace had McCain somehow managed to win the 2008 election. But politically ignorant voters often give incumbents too much credit for positive economic trends that happen during their terms, and too much blame for negative ones. In some past elections, such as in 2010, Republicans were the lucky beneficiaries. This year, it was Obama and the Democrats.

This year’s outcome was not set in stone. Obama’s advantage derived from the economy was small enough that an unusually strong challenger or an unusually weak incumbent might have negated it. The same goes for some dramatic noneconomic issue that cut in favor of the challenger. But Romney was not an unusually appealing candidate, nor Obama an unusually poor one. And Romney wasn’t able to take advantage of any major extraneous issues, and indeed was probably slightly damaged by some of them (the death of Bin Laden, Hurricane Sandy, etc.).

Obama did do better in electorate vote count, where he will end up with a 332-206 margin, than in the popular vote. He did it by winning nearly all the close swing states. I leave it to others to determine to what extent that happened because the electoral vote map now slightly favors Democrats relative to the popular vote (a change from 2000 and 2004, when it slightly favored the GOP), and to what extent it was a superior Democratic “ground game.” I suspect both factors were at work.

The above should not be interpreted to imply that ideology and noneconomic issues don’t matter at all. A party wildly out of synch with the public on one or the other may well lose even if economic conditions are somewhat favorable. But, despite frequent claims to the contrary, I don’t think either the Democrats or the Republicans deviated from public opinion to such a huge extent, though both are at odds with the median voter on some issues. If swing voters paid close attention to the issues and were well-informed about politics, they might punish even small deviations from their preferences. In reality, however, they tend to be disproportionately ignorant, and generally base their votes on broad economic trends rather than detailed consideration of issue positions.

UPDATE: I should emphasize that attributing Obama’s victory in large part to the underlying economic situation does not imply that the GOP made no mistakes in crafting its message or that the party doesn’t need to reach out to a wider range of voters. An unusually strong candidate or message could have overcome Obama’s relatively narrow advantage. And a party with a broader base can more easily overcome adverse economic conditions. At this point, it would be silly to suggest that the Republicans don’t have any significant political weaknesses. But analyses of their flaws should not begin with the false assumption that Romney and the party flubbed an opportunity despite having the odds strongly in his favor. In reality, they were slightly against him.

On this election day, as on most others, we will hear a lot about the need to increase turnout and the dangers of voter suppression. But few will even consider questioning the systematic exclusion of a huge part of our population from the franchise: children under the age of 18. We allow even the most ignorant and irresponsible adults to vote, but exclude even the most knowledgeable and insightful children. And to add insult to injury, we saddle them with a mediocre education system and trillions of dollars in public debt that they will someday have to repay.

For reasons I outlined during the last presidential election, this is both unjust and counterproductive. We should at least consider allowing children to vote if they are more knowledgeable than the average adult voter:

The main objection to giving children the vote is that they lack the knowledge to make informed choices. Of course the same is true of most of the adult electorate, who are rationally ignorant about politics and public policy, and often don’t know even very basic facts. Nonetheless, it’s probably true that the average child knows a lot less about politics than the average adult, and that may be a good reason to deny most children the franchise. But why deny it to all of them? If a minor can pass a test of basic political knowledge (say, the political knowledge equivalent of the citizenship test administered to immigrants seeking naturalization), why shouldn’t he or she have the right to vote? Such a precocious child-voter would probably be more knowledgeable than the majority of the adult population. Giving her the right to vote would actually increase the average knowledge level of the electorate and thereby slightly improve the quality of political decision-making. I’ve met twelve-year-olds with far higher levels of political knowledge than that of the average adult. You probably have too.

Once the knowledge objection is off the table, all the arguments for giving adults the right to vote also apply to sufficiently knowledgeable children. Like... adults, children have a claim to the franchise because government policies affect them too, because otherwise their interests might be undervalued in the political process, because it affirms their status as citizens with equal rights, and so on.

Obviously, there might be some difficult administrative issues. For example, we might not trust the government to put together an adequate knowledge test. But I don’t see any principled reason to deny the franchise to children whose political knowledge is greater than that of most adult voters.

Other standard objections to letting knowledgeable children vote also don’t hold much water, and in some cases resemble long-discredited justifications for excluding women from the franchise:

Some people might worry that even knowledgeable child-voters will be “unduly” influenced by their parents’ preferences. Given the existence of the secret ballot, I doubt that this would be a major problem. Moreover, children who are knowledgeable enough to pass the test and interested enough to take it will probably have at least some political ideas of their own that aren’t easily susceptible to parental suasion. In any event, I’m not sure that the possibility of parental persuasion would necessarily be a bad thing. The objection is in fact similar to one of the arguments once raised against giving women the right to vote – that they would be unduly influenced by their husbands or fathers. Husbands will often influence the views of their wives (and vice versa); similarly, parents will influence those of their children. That doesn’t by itself justify denying either married people or children the right to vote....

[C]hildren might lack maturity or life experience, as well as knowledge.... I’m just not convinced that either is tremendously useful for voting. Most voting decisions have to do with complex, large-scale policy issues that can’t easily be weighed based on personal experience. Realistically, even most adults have little life experience that is directly useful in assessing difficult policy issues... At the very least, it seems to me that superior knowledge might well outweigh inferior maturity and life experience. And I’m only advocating giving the franchise to children who can demonstrate knowledge levels superior to those of the average adult voter...[Moreover, we don't exclude even the most immature adults from the franchise, even if they are highly ignorant to boot].

[Some cite] the value for voting of such “adult” experiences as holding a job, paying taxes, owning property, and so on.... I’m skeptical that these experiences greatly improve the quality of voting decisions. Even more to the point, however, we don’t exclude from the franchise the many adults who lack some or all of these experiences – even if they are also ignorant of even the most basic political knowledge. If lack of life experience is not enough to justify exclusion of even the most ignorant adults from the franchise, I don’t see why it should be considered sufficient to exclude vastly more knowledgeable minors.

The key conclusion is this: There is no plausible justification for excluding knowledgeable children from the franchise that doesn’t also apply to large numbers of adults. We could easily exclude adults who don’t have a job, don’t own property, or lack whatever other life experience supposedly makes you a qualified voter. But virtually everyone agrees that we shouldn’t.

One can argue that the exclusion of children is more permissible than that of comparable adults because it is “only” temporary. But every election leads to policy decisions that have permanent long-term effects. Knowledgeable children who were denied the vote in 2004, 2008, and this year, are going to be massively affected by the decisions made by the winners of these elections. And, of course, the exclusion of adults who don’t have jobs or other relevant life experience might also be temporary, lasting only until they manage to get that experience.

Argentina and the German state of Bremen recently extended the franchise to people over the age of 16, irrespective of their knowledge levels. We should consider doing the same for at least those children who know as much about politics as the average adult. I don’t underestimate the practical difficulties of implementing this idea. For example, it may be very hard to come up with an unbiased knowledge test for aspiring child voters. But the issue at least deserves serious consideration. We should not continue to exclude millions of knowledgeable potential voters from the franchise, unless there really is no good way to avoid it.

I am not the first to advocate giving at least some children the right to vote. Harvard political scientist Paul Peterson has been making that case for a long time (albeit on somewhat different grounds). And columnist Michael Kinsley defended a similar idea in 2011. But Kinsley and Peterson are arguing that parents should be allowed to cast an extra vote for each of their children (though Peterson would give parents the option of letting the children make their own choices). This is a little like giving husbands the right to cast an extra vote for their wives, instead of letting married women vote for themselves. I say let knowledgeable children cast their own ballots.

Finally, it’s worth noting the commonality this post and my last one, in which I urged adult voters to consider not voting on issues they know little or nothing about. Knowledge, not age, should be the main qualification for exercising political power at the ballot box. We may understandably shy away from giving government the power to use knowledge tests to narrow the franchise. But it’s much tougher to argue against using them to expand it.

The North Dakota Senate election could be close — close enough to trigger a recount. Given that control of the Senate could be at stake, the party lawyers will no doubt descend ready for battle. But in ND there’s a twist: No voter registration. As Sasha Issenberg explains in Slate, North Dakota is the only state without voter registration rolls. Those who show up to vote without the required identification can sign an affidavit and have their vote counted, leaving no way to challenge potentially ineligible voters who cast ballots.

The Cleveland Plain Dealer reports that the outcome of the Presidential election in Ohio may not be known until mid-November. This is because state election officials will not count provisional ballots until at least ten days after the election. Given the large number of provisional ballots in Ohio — a number that could increase due the large number of absentee ballots expected to be cast this year — such ballots may make the difference, and legal wrangling on which ballots to count could drag things out even more. This is why the Cincinnati Enquirer called this a potential “nightmare voting scenario.”

Recent polling results present the possibility that Mitt Romney could win the popular vote but lose the electoral vote. Would this matter? It shouldn’t. We’ve seen this before, and it is not at all unusual for a President to be elected with less than 50 percent of the popular vote, as some voters support third-party candidates. Should President Obama be re-elected, there’s no question some GOP partisans will complain and right-leaning pundits will dredge up old quotes from Democratic politicians calling for replacing the Electoral College with a national popular vote system. But Barack Obama would still be the president, and he would be no less “legitimate” than if he had won the popular vote as well.

Does the Electoral College system allow for the election of a president who does not enjoy majority (or even plurality) support? Yes, but it would be a mistake to assume that a candidate’s failure to get a majority of the popular vote on election day means that the candidate does not enjoy majority support. One consequence of the Electoral College system is a distortion of popular vote totals, particularly in electoral strongholds. So the “winner” of more popular votes cast under the Electoral College system would not necessarily have won under a national popular vote system.

The electoral college encourages attention on winning contested states, not maximizing turnout nationwide. Each candidate focuses turnout efforts in states with closely divided populations, devoting fewer resources to “safe” states. This means the Romney campaign has no incentive to trawl for every vote in Texas, and the Obama campaign can take it easy in states like New York. (Under a national popular vote system, however, the incentives would be quite different, as every vote would count.) Because some of these “safe” states have large populations and are not particularly politically competitive, even down ballot, we have no assurance that the final vote totals in such states reflect actual voter sentiment. Just think about it: someone who cares about the outcome of the Presidential race is far more likely to vote if they live in Ohio than if they live in Texas or the District of Columbia. It also means that there is less attention to provisional ballots, the need for recounts, etc. in less competitive jurisdictions. Under a national popular vote system, this would not be the case.

The bottom line is that popular vote totals are not independent of the rules under which they are cast. Dividing up the vote into states, each of which awards its electoral votes separately, alters the popular vote total. So if a candidate wins a majority of electoral votes while losing the national popular vote, this does not mean this candidate would have lost the election under a national popular vote system, and it does not make the prevailing candidate any less “legitimate.”

Utah Code Ann. § 20A-7-202(5)(b) provides:

Rick Hasen writes in Slate how Bush v. Gore‘s equal protection holding could benefit President Obama’s reelection effort, especially in Ohio.

For years, voting rights advocates have tried to make lemonade from lemons, arguing that the Equal Protection holding of Bush v. Gore should apply more broadly to require equality and uniformity in conducting elections. Until recently, these attempts have mostly met with failure, with courts reading the case’s holding narrowly. Some argued that at most the opinion would apply to require uniform rules for conducting election recounts. So poorly had Bush v. Gore fared in the lower courts—the Supreme Court has never cited it for any purpose since it was decided—that I declared Bush v. Gore’s untimely death in 2007.

But in the last few years the opinion has been resurrected by the United States Court of Appeals for the 6th Circuit, the federal appellate court that includes Ohio.  In one recent case, a federal judge required Ohio to restore the last weekend of early voting, relying in part on Bush v. Gore’s equal protection principles. The judge suggested that once Ohio had added the early voting days, it couldn’t take them away, or at least couldn’t take them away from everyone except military voters.

The 6th Circuit appeals court agreed. One of the appellate judges went so far as to say that the reason Ohio could not take the early voting days away is because the state had a bad history of long lines at the polls in 2004, and the early voting in 2008 seemed to clear up this problem. That was an incredibly broad extension of equal protection principles, well beyond even generous readings of the Bush v. Gore precedent.

For more on how Bush v. Gore has encouraged federal courts to policy election administration more agressively, see this article by Dan Tokaji and Owen Wolfe from the Case Western Reserve Law Review symposium on Baker v. Carr and this “Below the Line” podcast on the article with commentary from Hasen and Brad Smith.

Let’s set aside the controversy about whether to have an Electoral College; instead, let’s ask: What happens if no candidate gets a majority vote?

Well, under the original Constitution, the plan was very badly busted: Under art. II, § 1, cl. 3, each elector was supposed to cast two votes, without indicating which was for President and which was for Vice-President; the candidate who got the most votes would be President (assuming he got at least enough votes to account for a majority of electors), and the first runner-up would be Vice-President. But say that, today, each Republican elector casts a vote for Romney and a vote for Ryan, and each Democratic elector casts a vote for Obama and a vote for Biden. Whichever party wins, there would be a tie, either a Romney-Ryan tie or an Obama-Biden tie. No-one would get the most votes, so you’d need to do a weird tiebreaker (more on that below) through the House of Representatives.

Indeed, in 1800 this is what happened, with Jefferson (the Presidential candidate of the Democratic-Republicans) and Burr (the Vice-Presidential candidate) ending up tied, and zaniness ensuing. What’s more, the 1796 election had by then already produced a Federalist President (Adams) and a Democratic-Republican Vice-President (Jefferson), which itself wasn’t very good. The result was the Twelfth Amendment, enacted in 1804, just 15 years after the original Constitution, that was meant to fix these problems.

And it did go a long way to fixing the problems, by having each elector vote separately for the President and the Vice-President. But what happens if no-one gets a majority of the electoral vote, either because three candidates split the electoral vote, because enough electors refuse to vote for the candidate that they were expected to vote for, or because the electoral college splits evenly (today, 269-269)? Well, here’s what happens:

[I]f no person have [a] majority [of electoral votes for President], then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote ....

[I]f no person have a majority [of electoral votes for Vice-President], then from the two highest numbers on the list, the Senate shall choose the Vice-President ....

So the House, voting by states, elects the President, but the Senate, voting by Senators, elects the Vice-President. And, as ABC News notes, the majority of House delegations is Republican, and would thus presumably vote for Romney; this will likely stay this way following the election. But if the Senate majority remains Democratic, then the Senators will presumably vote for Biden. (I think it will be the newly enacted House and the Senate with the newly elected Senators who will vote, because 3 U.S.C. § 15 provides that Congress’s involvement in the election of the President — even just the process of counting electoral votes when there is a clear majority — begins January 6, and the Twentieth Amendment provides that the terms of newly elected Representatives and Senators begin January 3.)

What’s more, this is eminently predictable — by the time the Twelfth Amendment was enacted in 1804, American leaders were well aware that parties would be important, and that Presidential and Vice-Presidential candidates would run on tickets together. Yet the Twelfth Amendment provided for selection of the President and Vice-President by two different processes, which might well yield different results. Indeed, the Amendment contemplates that sometimes the #3 Presidential candidate would win (presumably as a compromise). But in that situation, assuming all the electors voted in the first place for the preplanned Presidential/Vice-Presidential tickets, the Vice-President who is elected will be guaranteed to not be the President’s choice, since the President is chosen from the top three vote-getters but the Vice-President only from the top two.

Of course, in all these scenarios we’re not talking about frustrating the will of the majority (at least if we accept the electoral college as a filter for public sentiments) — by definition, there won’t be a majority. And the President and Vice-President need not work closely together; indeed, as I understand it, throughout American history they often haven’t.

But it’s still important, I think, that in the event the President dies or becomes disabled, the agenda of the Administration continue without massive interruption — and a sudden, unplanned switch in the middle of a presidential Term from one party to another is likely to be such an interruption. (I’m no historian of the Civil War era, but as I understand it much of the problems that Andrew Johnson faced stemmed from his being of a different party from Abraham Lincoln; the two were elected on a wartime unity ticket.) So the Framers of the Constitution, and then the authors of the Twelfth Amendment, seem to have erred in this respect, though as to circumstances that, admittedly, are quite rare in American history.

The Washington Post reports on the state of Ohio’s emergency application for a stay of a lower court injunction against recent changes in early voting rules, pending its petition for certiorari in this case.

The issue is whether Ohio may allow only military voters to take advantage of in-person early voting in the three days before the Nov. 6 election. A district judge and a panel of the U.S. Court of Appeals for the 6th Circuit said the state had not shown why it should differentiate among groups of voters.

“While there is a compelling reason to provide more opportunities for military voters to cast their ballots, there is no corresponding satisfactory reason to prevent nonmilitary voters from casting their ballots as well,” the appeals court said. About 105,000 voters had cast their ballots during the three days in question in 2008. . . .

Although the state has permitted early voting on the weekend before the election in the past — long lines on Election Day in 2004 prompted the change — the Republican-controlled legislature ended weekend voting this year, saying local boards of election needed the time to prepare. The state made an exception for military voters, who it said could be deployed at any time and thus miss the chance to vote.

Such decisions, Ohio says, are for each state to make. The 15 states supporting that position — all, like Ohio, have Republican attorneys general — told the court that the Constitution’s “genius” is to allow states “to consider and implement creative, novel efforts to widen the ability of citizens to vote.”

Rick Hasen provides some analysis here, here, and here. He thinks Ohio had a decent shot had he sought en banc review, but the state has gone straight to the Supreme Court instead. SCOTUSBlog has more here.

Meanwhile, the U.S. Court of Appeals for the Sixth Circuit has decided another case that could also end up at the Supreme Court, SEIU v. Husted. The case concerns the counting of provisional ballots where voters voted in the wrong precinct due to poll worker error. Hasen believes this is an important case, and it’s also worth watching.

A three-judge panel precleared South Carolina’s new voter identification requirement under Section 5 of the Voting Rights Act.  Judge Kavanaugh wrote the opinion for the court, and summarized the case as follows:

This case concerns South Carolina’s new voter ID law, Act R54. The question presented is whether that new state law is lawful under the federal Voting Rights Act. As relevant here, Section 5 of the Voting Rights Act bars state laws that have either the purpose or the effect “of denying or abridging the right to vote on account of race or color.” 42 U.S.C. § 1973c(a). The effects prong of Section 5 of the Voting Rights Act measures a State’s proposed new voting law against the benchmark of the State’s pre-existing law.

For several decades, South Carolina has had a voter ID law. Under the version of the law in effect since 1988, a voter must show a South Carolina driver’s license, DMV photo ID card, or non-photo voter registration card in order to vote. Under that pre-existing South Carolina law, a voter with a non-photo voter registration card need not show a photo ID in order to vote. As we will explain, South Carolina’s new law, Act R54, likewise does not require a photo ID to vote. Rather, under the expansive “reasonable impediment” provision in Act R54 – as authoritatively interpreted by the responsible South Carolina officials, an interpretation on which we base our decision today – voters with the non-photo voter registration card that sufficed to vote under preexisting law may still vote without a photo ID. Those voters simply must sign an affidavit at the polling place and list the reason that they have not obtained a photo ID.

In addition, Act R54 expands the kinds of photo IDs that may be used to vote – adding passports, military IDs, and new photo voter registration cards to the driver’s licenses and DMV photo ID cards already permitted by pre-existing law. Moreover, Act R54 minimizes the burden of obtaining a qualifying photo ID as compared to pre-existing law. The new law creates a new type of photo ID – namely, photo voter registration cards – which may be obtained for free at each county’s elections office. Also, under Act R54, DMV photo ID cards may be obtained at each county’s DMV office for free; those cards cost $5 under pre-existing law.

In short, Act R54 allows citizens with non-photo voter registration cards to still vote without a photo ID so long as they state the reason for not having obtained one; it expands the list of qualifying photo IDs that may be used to vote; and it makes it far easier to obtain a qualifying photo ID than it was under pre-existing law. Therefore, we conclude that the new South Carolina law does not have a discriminatory retrogressive effect, as compared to the benchmark of South Carolina’s pre-existing law. We also conclude that Act R54 was not enacted for a discriminatory purpose. Act R54 as interpreted thus satisfies Section 5 of the Voting Rights Act, and we grant pre-clearance for South Carolina to implement Act R54 for future elections beginning with any elections in 2013. As explained below, however, given the short time left before the 2012 elections, and given the numerous steps necessary to properly implement the law – particularly the new “reasonable impediment” provision – and ensure that the law would not have discriminatory retrogressive effects on African-American voters in 2012, we do not grant pre-clearance for the 2012 elections.

Over on the Election Law Blog, Rick Hasen finds Judge Kavanaugh’s opinion persuasive.