Archive | Elections

A Recount in Virginia?

CNN reports on a possible election recount in Virginia:

The Republican in Virginia’s attorney general race will request a recount after the official results released Monday showed state Sen. Mark Obenshain behind Democratic state Sen. Mark Herring by a razor-thin margin of about .007%.

Obenshain lost by 165 votes out of 2.2 million, marking the closest statewide race in Virginia’s history. . . .

If a candidate loses by less than 1% in Virginia, he or she is allowed to petition the Board of Elections for a recount after the votes are certified. And because the margin was less than .5%, the counties involved in the recount will cover the costs.

A three-judge court, sitting in Richmond, Virginia, will supervise the recount. It will also set the dates and terms of the recount, and confirm the officers of election and coordinators for the recount, according to Obenshain’s campaign.

Bring on the lawyers. [...]

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Could VA AG Race Go to Federal Court?

The Virginia Attorney General’s race remains too close to call. At last count, Democratic State Senator Mark R. Herring had a slim lead over Republican State Senator Mark D. Obenshain. If the lead evaporates, will Democrats take the contest to federal court? Rick Hasen thinks they might. His article in Slate begins:

The race for Virginia’s attorney general is about as close as it gets in a statewide race: At the moment, about 100 votes separate the two candidates out of 2.2 million votes cast. When I started writing this article, Republican Mark Obenshain was leading Democrat Mark Herring, but that’s now reversed. County election boards are checking their math and deciding which provisional ballots to count. It is anyone’s guess who will be ahead when certification comes Tuesday night. In the meantime, Democrats are up in arms over what they see as a new rule the Republican-dominated state elections board put in place last Friday to make it harder to count provisional ballots in Democrat-leaning Fairfax County.

Unless Herring builds up a larger lead, Democrats’ best hope for winning the attorney general’s race probably lies in federal court, and the results there are uncertain and may take a very long time to work out.

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How Best to Secede from a State

Some spirit of secession has spread across the land, with various areas in Maryland, Colorado, Texas, California and elsewhere discussing seceding from their states, because of political alienation arising from significant differences in values and preferences. I don’t take the political prospects of American secession movements too seriously, and assume their principal purpose is to gain leverage for their preferred policies within their state governments.

These secessionists have an advantage over those seeking outright separation from the Union – and a big disadvantage. On one hand, they don’t have to deal with the Confederacy/slavery baggage that tends to confound discussions of secession in the U.S. On the other hand, the Constitution, Art. IV, sec. 3 clearly forbids the creating a new state in the territory of an existing one without the latter’s consent, and the consent of Congress. That is a high bar, practically insurmountable.

But there may be an easier way for those who seek to secede from their state – instead of creating a new “51st” state, secede to join an existing state. The Constitution’s requirement of home-state and congressional consent only clearly applies to the creation of a “new state”:

… no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The language of the provision is a bit unclear. Does the second clause above (“nor any State be formed”) refer back to, and continue the discussion, of “new states”? That would mean that the provision does not govern the transfer of territory from one state to another. The interpretation probably depends on what it means for [...]

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San Diego’s Recall Election and California Constitution Art. 3, Sec. 3.5

San Diego’s mayor, Bob Filner, has been accused of widespread sexual harassment (and even assault). He is the subject of a recall petition, and today marks the official beginning of the signature-gathering period. But San Diego’s laws governing recall are both somewhat confusingly-written, and remarkably stringent. The city attorney has already issued three legal opinions clarifying various aspects of the recall procedure:

1, declaring unconstitutional a legal requirement that voters can only vote for a replacement candidate if they voted on the recall question.

2, concluding that it is permissible to have multiple recall petitions circulating until a special election is scheduled, despite a confusingly-worded provision that led some to believe that a failed petition immunized the candidate from further recall efforts.

3, declaring unconstitutional a requirement that petition circulators be state residents.

And the Recall Elections Blog describes San Diego’s law as “a disaster, and it many ways it ranks among the worst recall laws in the country, if not the globe.” But there may be yet an additional lurking “disaster” in California law, which I have not yet seen discussed.

Article 3, Section 3.5(a) of the California Constitution says:

An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power:
(a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional;
(b) To declare a statute unconstitutional;

In 2004, the California Supreme Court noted that it was an open question whether this provision applies to local executive branch officials, but if it does, then it creates problems for the recall — it would mean that the city ought to be enforcing the unconstitutional voting requirement, and more importantly, the residency [...]

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A Knowledgeable but Selfish Electorate May be Better than a Well-Meaning but Ignorant One

In my last post, I discussed economist Dwight R. Lee’s article about why most of the electorate does not decide who to vote for on the basis of narrow self-interest. Unfortunately, the very same incentive structure that leads most voters to base their decisions on the public interest also leads most of them to be ignorant. In this post, I would like to suggest that a narrowly self-interested electorate might actually be better than an altruistic one, so long as the former is much more knowledgeable about policy than the latter. I have a more detailed discussion of this scenario in Chapter 2 of my forthcoming book on political ignorance.

Imagine a political system (call it, “democracy”) where public opinion has a lot of influence over public policy. Politicians know that if they don’t do what the majority wants, their chances of winning election and reelection will be significantly reduced. Imagine, also, that the electorate is highly knowledgeable, but also extremely selfish. They understand the effects of different policies very well, but always prefer whatever policy maximizes their personal material wealth, and perhaps that of their families. Many people would intuitively assume that this is a kind of nightmare scenario. It would lead to 51% voting to enslave or at least severely oppress, the other 49% for the benefit of the majority.

Maybe it would. But a little reflection would soon lead to knowledgeable majority to recognize that slavery and severe oppression of the minority are not actually in their interest. Basic economics, plus lots of empirical evidence, suggest that slaves and forced laborers are usually less productive than free workers who get to keep a substantial proportion of what they earn. Thus, the 51% would do better to let the 49% live freely and earn a good [...]

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Selfish Voters are Not the Problem that Ails Democracy

Both right and left have standard stories explaining how selfish voters often prevent the government from adopting good policies. The right-wing story – made famous by Mitt Romney’s much-derided “47 percent” speech last year – is that voters become dependent on government transfer programs and then support those programs despite the harm they cause to the economy. The left-wing counterpart is the theory that middle and upper class voters selfishly refuse to support programs that benefit the poor or provide useful public goods, because doing so would require them to pay more taxes.

In reality, however, the data suggest that there is only a weak correlation between narrow self-interest and public opinion on most issues. For example, the young support Medicare and Social Security almost as much as the elderly do. During the Vietnam War, men eligible for conscription actually supported the war at higher rates than the general public. Although there are some exceptions, in general voters’ decisions are based on their perceptions of the public interest far more than on narrow self-interest. In this recent article, economist Dwight R. Lee has a good discussion of the reasons why voters act this way:

People face very different incentives in markets than they do in the voting booth. In the marketplace the shopper’s choice decisively determines what he receives and pays for. In the voting booth, the voter’s choice is almost never decisive in determining what he receives and pays for. At best, voters receive and pay for what the majority of voters choose, whether they vote for it or not. Your vote is as decisive as a market purchase only if the election would have been a tie without your vote….

The costs and benefits of what we are thinking about buying in the marketplace are

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Obama Probably Did Not Win the 2012 Election by Violating the Computer Fraud and Abuse Act

In a recent post, co-blogger Stewart Baker writes that there is “a very real possibility” that the Obama campaign won the 2012 election by increasing turnout among its supporters, using tactics that violated the Computer Fraud and Abuse Act. It is difficult to definitively disprove such claims. But the available evidence cuts the other way – at least if “real possibility” means more than an extremely small chance.

To prove that Obama won by violating the CFAA, it must be shown that 1) that Obama won because of unusually successful efforts to increase turnout among his supporters, and 2) that turnout would have been so much smaller absent violations of the CFAA, that Romney would have won. Both claims are problematic. Contrary to much conventional wisdom, Obama’s victory was actually well in line with historic trends. Standard econometric models based on trends in the economy predicted a narrow win for Obama, and his margin of victory was only slightly greater than the predictions, as I explained in this post shortly after the election. The final popular vote margin was larger than that indicated in the early numbers I used in the post; but the key point is that Obama would have won even if he had gotten exactly the percentage of the vote predicted by standard electoral models. Sean Trende and political scientist John Sides make similar points in greater detail (see also Sides’ forthcoming book with Lynn Vavreck). As Sides and Trende emphasize, incumbent presidents usually win reelection if there is even moderate improvement in the economy during the last year or so before the election. A major scandal or an unusually strong opposing candidate can overcome this tendency. But the GOP in 2012 didn’t benefit from either.

To the extent that high-tech campaign tactics and selective turnout [...]

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The Virginia GOP’s Rotten Electoral Vote Plan

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. [...]

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Citizens United and the Fall of the Roman Republic

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

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Posner Defends the Electoral College

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,

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Public Opinion on the Role of Government

Commentators such as liberal E.J. Dionne and even libertarian David Harsanyi are claiming that the election results prove that Obama won a great referendum on the role of government in American society, achieving a mandate for expanded government intervention.

The CNN exit polls tell a very different story. 51 percent of voters said that government is doing “too much” that should be left to businesses and individuals, compared to 43% who believe that government should do “more” to solve problems. By far the biggest and most controversial new government program of the last four years was the Obama health care plan. The CNN poll shows that 49% would like to see it repealed in whole or in part, while 44% want to keep it as is or expand it. The latter number is particularly interesting in light of the fact that we just went through an election where the GOP nominee could not attack the individual health insurance mandate – the single most unpopular part of the law – because he enacted an individual mandate himself back when he was governor of Massachusetts.

Somewhat inconsistently, there is a 63-33 majority against the idea that taxes should be raised to help cut the deficit, but a 60-35 majority in favor of raising taxes on people earning over $250,000 per year. Either there is a huge number of people who want to raise taxes but not spend any of the money on paying down the deficit, or (more likely) the wording of the two questions has different framing effects.

I don’t fool myself into believing that the majority of the public are as libertarian as I am. Not even close. The vast bulk of the 51% who believe government is doing too much and and the 49% who would like to [...]

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Presidential Preferences of George Mason Law Students

As co-blogger David Bernstein notes, the two of us conducted anonymous online presidential polls of our Constitutional Law I classes. Here are my results, for a poll conducted over the weekend just before election day:

Barack Obama (Democrat): 29
Mitt Romney (Republican): 18
Gary Johnson (Libertarian Party): 2
Jill Stein (Green Party): 1
Other: 0
Undecided: 0

Combining my results with David’s, we get a total of 51 for Obama, 29 for Romney, 3 for Johnson, and 1 for Stein. Obviously, that’s a much higher percentage of the vote than Obama got either nationally or in the state of Virginia (61% compared with 50.5% in the nation as a whole and 51% in Virginia). I’m pretty sure we have a representative sample of the GMU student body. Con Law I is a required course, and between the two of us we have nearly half of the GMU second year class in our sections. “Turnout” for the poll was relatively high (50 of 65 in my section). And most students pick sections based on scheduling rather than because of either their own ideology or that of the professor.

Like David, I think the results prove that GMU does not have an overwhelmingly conservative student body, or an overwhelmingly libertarian one, for that matter. Unlike in 2008, very few libertarians supported Obama this year. So it’s unlikely that very many of the GMU Obama voters are really libertarians who see Obama as a lesser evil compared to Romney. The percentage of libertarians here is likely much higher than in the general population, but still a minority.

Because the sample size is still relatively small, I wouldn’t put a lot of stock in the exact percentages in these polls. But I’m pretty confident that the level of support for Obama far outstrips [...]

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Is it Unjust to Require Children to Pass a Knowledge Test to Vote, but Not Adults?

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 [...]

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Explaining Obama’s Victory

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 [...]

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A Few Thoughts about the Election

(1) The Republicans’ other demographic problem: Sure, the GOP needs to reach out to the growing Hispanic population. But the bigger problem is that single women vote overwhelmingly Democratic, and for the first time in American history there are more single women than married women. Single women are much more economically vulnerable than are married women, and want the government to be there to insure them against hard times. This is especially true of single women with kids–and the American divorce rate is still the highest in the world, and over 40% of American children born last year were born to single mothers. This isn’t good for the women, their children, or American society, and it’s not good for the Republicans. So how about spending (A LOT) less time worrying about gays getting married, and more time worried about women (and men) who aren’t? Reducing the number of what used to be called “broken homes” is a culture war worth fighting; gay marriage is not.

(2) The election bears a remarkable resemblance to 2004–an incumbent who is wildly unpopular among partisans of the other side and facing a sluggish economy wins a narrow victory by harnessing the powers of incumbency, defining his opponent as an out-of-touch elitist through negative ads, and turning out his base in numbers many pundits thought impossible.

(3) There’s been relatively little comment about how elderly voters, once a Democratic stronghold, have become such a strong Republican constituency. If Obama is serious about lowering the deficit–and I hope he is–something will need to be done about Medicare and Social Security costs. Oddly enough, he might be in a better position to do that something than a Romney administration reliant on the over-65 vote.

(4) Kudos to Nate Silver, he seems to have made all the right [...]

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