The Volokh Conspiracy

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.

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 repeal all or part of Obamacare still favor a much bigger government than I do. But they don’t seem to endorse the liberal view of government’s role either.

It’s too early to say whether a more libertarian position is the best political strategy for the GOP (or any party) going forward. I certainly hope it’s true. The above survey data combined with the continuing popularity of property rights, and the growing social liberalism evident in increased support for drug legalization and gay marriage is some evidence for the theory. On the other hand, the fastest-growing ethnic segment of the electorate is Hispanics, and they tend to be economically statist. Whether the GOP can persuade more Hispanics to support free markets if they reach out to the group by changing the party’s position on immigration is difficult to say. Also, it’s very hard to persuade a majority of the public to support deep cuts in entitlement spending – the single largest component of the federal budget, in part because of widespread ignorance about how enormous that spending actually is. At this point, therefore, it is hard to say whether a much more libertarian stance than that which the GOP took in 2012 will yield political dividends. It’s always tempting to conclude that whatever you support is also good political strategy. But the temptation should be resisted unless and until you have some strong evidence to prove it.

What we can say, however, is that the available evidence does not show that the election was a clear mandate for bigger and more interventionist government. The majority of the public remains suspicious of government and more people want it to leave more issues to the private sector than want it to do more.

UPDATE: It’s worth noting that the 49-44 breakdown on Obamacare is consistent with other recent surveys on the law, which show an average of 47 percent opposing it, and 39% in favor. A smaller sample of polls aggregated by RCP shows an average of 50-44 in favor of repealing the law. That reduces the likelihood that the CNN result was a function of flaws in the wording of their question (such as ambiguity over what it means to repeal “part” of the law, or “expand” it). This not a high enough level of opposition to force the Democrats to actually repeal it. But that’s not my point. I merely suggest that there is no majority consensus in favor of it.

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 that for Romney and Johnson combined.

UPDATE: I should note, as some commenters do, that the 61% figure for Obama in this student sample is pretty similar to that for 18-29 year olds nationally. Compared to other students of the same age, GMU students don’t come off as disproportionately liberal. But if the ultimate conclusion is that GMU students are roughly representative of 18-29 year olds overall, that still refutes claims that they are overwhelmingly conservative or libertarian.

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.

(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 calls, including the key and controversial call that the state polls were more accurate than the national polls. Rasmussen, in predicting a strongly Republican electorate, seems to have discredited himself. Similarly, some heads should roll at Gallup, which despite having an enormous sample size completely botched predicting the partisan makeup of the electorate.

(5) I’m pretty confident that Ruth Bader Ginsburg will retire before Obama’s term is up. I’m also pretty confident that unless they die or become totally incapacitated, Anthony Kennedy and Antonin Scalia aren’t resigning.

(6) Is this 1936? Obviously not.

(7) If Chief Justice Roberts was thinking he’d win kudos for upholding Obamacare, and then it would be gutted by a Romney Administration anyway, he was sorely mistaken.

(8) Monday morning quarterbacking is easy, but I always thought that Romney made a mistake in pitching his campaign almost entirely on dissatisfaction with the economy. Available political science models suggested that the fact that the economy was improving would be more important than the fact that it still wasn’t doing that well. Such models predicted a narrow Obama reelection. To win, then, Romney needed to win over a percent or two of voters with a broader vision. It may not have been possible, and maybe it would have backfired. But it was worth a shot. I also was skeptical that going on cruise control after the first debate was a wise strategy. On the other hand, Romney isn’t really a big picture kind of guy, and his likeability ratings were low enough that a more aggressive posture may not have worked. Mitt Romney may have run the best campaign Mitt Romney could run, given his temperament.

(9) I suspect this is the last time for a long time we are going to see a GOP ticket with two white non-Hispanic men.

(10) Early indications from a variety of sources suggest that Romney won about 30% of the Jewish vote, the most for a GOP candidate since 1988, and a decent showing considering that most Jews live in deep blue states–the New York metro area, Maryland, Massachusetts, Illinois, and California–where their votes weren’t contested. (I also tend to think that exit polls and surveys slightly underestimate the GOP Jewish vote because the two groups most likely to vote Republican, the ultra-Orthodox and Russian immigrants, are also the least likely to respond to pollsters.)

(11) With a few exceptions, the Democrats’ campaign was remarkably free of appeals to anti-Mormon prejudice. Kudos for that.

(12) I’ve spent most of my adult life paying relatively little attention to elections, but I fell off the wagon a bit in ’08, and much more this time. I plan to go back to my old policy, as following elections closely is a huge waste of time. My excuse this year is that I’ve been so tired due to having a new baby in the house that I found it hard to do anything much more productive in my spare time than read election news.

Only reporting results which represent a change.

U.S.  Senate. Gains: Indiana (Donnelly replaces Lugar). NM  (Heinrich replaces Bingaman). ND (Heitkamp replaces Conrad).

Senate losses: Mass., Warren defeats Brown (-.5 with NRA C-rated Senator replaced by an F). Virginia, Kaine replaces Webb.

Senate net: +1.5. Ted Cruz’s win in Texas won’t change Senate voting patterns, but the former Texas Solicitor General will be an outstanding and very well-informed leader on Second Amendment issues.

House losses: AZ 9. CA 7 (C-rated Lungren ousted), 26, 36 (Mary Bono Mack), 41, 52. FL 18 (Alan West), 22 (Bloomberg-funded extremist wins), 26. Il  8, 18. MD 6. MN 8. NH 1 & 2. NY 18, 24.

House gains: AZ 2. IA 3 (incumbent vs. incumbent). NC 13 (F-rated incumbent retired). OH 16 (incumbent vs. incumbent).

House net: -12.5.

Governor Loss: Montana (although not officially called yet; winner Steve Bullock has a B- rating). Waiting for results in WA, a possible gain.

Ballot issues. Strengthen Louisiana state right to keep and bear arms, to require strict scrutiny. Win, very important reform, that will be a model in other states. Constitutional right to hunt  and fish passes overwhelmingly in Kentucky, Nebraska, and Idaho.

In short, as Barack Hussein Obama, the Juan Domingo Peron of the 21st century, leads America to fiscal collapse, you can at least keep your guns.

All of the major networks have called the election for Obama, and it’s pretty obvious that he’s going to win, even though the Romney campaign has not yet officially conceded. It’s an impressive political achievement for the president and his supporters, especially if (as now seems likely), he does better in the popular vote than most national polls predicted. The Democrats also scored an important success in retaining control of the Senate in a year where the GOP hoped to make significant gains.

For me and most other libertarians, this election was always a choice of evils and I shed few tears for Mitt Romney. But I do think he was the lesser of the two evils on offer this year. Obama’s reelection will likely have at least two major negative consequences from my point of view. First, Obamacare is likely to stay in place. Although it remains somewhat unpopular – as shown the by the president’s reluctance to bring it up in the campaign – he is going to hold onto it successfully. Second, Obama will get to replace any Supreme Court justices who retire or pass away during the next four years. With four justices in their mid to late seventies right now, there’s a real chance he will get at least one or two more nominations. All conservatives and libertarians can do is hope that Justices Anthony Kennedy (76 years old) and Antonin Scalia (also 76) will remain healthy and uninterested in retiring. But even if Obama gets to replace one of the liberal justices, such as Ruth Bader Ginsburg (79), there’s a big difference between a justice who probably has only a few years left to serve, and a much younger one who could stay on the Court for 25-30 years or even longer.

On the other hand, the GOP did retain control of the House of Representatives, so divided government will continue. Other things equal, divided government helps restrain the growth of the state. And exit polls show that a strong majority of Americans believe that government is “doing too much.” Whatever mandate Obama may have, it is not a mandate for increasing the size of government, or perhaps even one for keeping it at its current bloated size. In considering Obama’s victory, it’s important to remember that a close win akin to the GOP victory in 2004 was roughly in line with projections from standard electoral models based on the state of the economy. Although the state of the economy was poor, it was on just enough of an upward trend relative to 2008 to give Obama a better than even chance of winning. When the final vote results are tallied, it may turn out that Obama has outperformed historical expectations; but probably not by a large margin.

Thus, it’s not out of the question that Obama’s second term will result in a “grand bargain” with the congressional GOP under which spending is cut substantially, while revenue is increased primarily by eliminating deductions rather than by raising tax rates: the famous proposal put forward by the Simpson-Bowles Commission. Obama will, I am sure, insist on raising tax rates “on the rich,” and probably get his way on that, at least to some substantial degree. But that might be a tradeoff worth making if it’s accompanied by major spending cuts. On that front, it’s worth noting that Obama and the Democrats are more willing than the GOP to cut defense spending, which even relatively hawkish libertarians like myself believe is necessary. That said, Obama’s victory probably will preclude – at least for some time – the kinds of major constraints on entitlement spending that Republicans such as Paul Ryan have been advocating, which is a big negative.

I also hope that the president turns out to be right in his prediction that the election results will lead the GOP to agree to a deal on immigration reform.

In addition to immigration reform (which seems surprisingly popular according to exit poll results I saw on CNN tonight), such libertarian causes as property rights and drug legalization also gained ground tonight, according to referendum results. Colorado and Washington just voted to legalize marijuana.

On balance, Obama’s reelection involves far more negative consequences for the cause of limited government than positive ones. If I thought otherwise, I wouldn’t have opposed it in the first place. But the political struggle over the role of government in our society is far from over.

UPDATE: I should emphasize that I’m not making any confident political predictions here. I think it’s possible there will be a fiscal “grand bargain” that is an improvement on the status quo from a libertarian point of view. I also think there’s a reasonable chance that we will get bipartisan immigration reform. But either or both could well go the other way. I have somewhat greater confidence in my negative predictions: that Obamacare will survive and, of course, that Obama will get to fill any Supreme Court vacancies that might arise between now and 2016. But both of these points are pretty obvious.

As the results come in tonight, I will blog here about the results as they affect the Second Amendment. In an article last week for National Review Online, I previewed all the Senate and Governor races, and all the competitive House races. Election night starts with a net +3 for the Second Amendment in the Senate, regardless of which party wins the Senate races in New Mexico, North Dakota, and Indiana. In all these states, both major party candidates are strong on Second Amendment issues, so the winner will replace retiring anti-gun Senators (Bingaman in N.M., Conrad in N.D.) or an anti-gun Senator who lost in the primary (Lugar in Ind.).  To summarize the rest:

The three gubernatorial races that are close and that feature major differences between the candidates on Second Amendment issues are Washington, Montana, and New Hampshire.

. . . In four states — Arizona, Massachusetts, Nevada, and Virginia — there are serious risks that Senate seats could be taken by new senators hostile to gun rights. Plausible opportunities to gain seats for the Second Amendment exist in Maine, Missouri, Ohio, and Wisconsin. In these eight swing Senate states considered together, the possibility of a net loss probably exceeds the possibility of a net gain.

As for the U.S. House, a rough estimate would be that if the net gain for Democrats is x, then the net loss for gun owners will be about one-half or two-thirds of x. In swing districts, most candidates are unwilling to forgo the 5 percent of the vote that can be lost by opposing Second Amendment rights. So, in these districts, candidates of both parties tend to support the Second Amendment. Thus, the net change in House composition on the gun issue tends to be smaller than the net party change in any given year.

In addition, Louisiana has a ballot referendum to strengthen the state constitution’s right to arms. Idaho, Kentucky, and Nebraska will vote on adding the right to hunt and fish to the state constitution.

Today, Americans will have an opportunity to vote on a wide range of candidates and ballot initiatives. In many cases, however, we will be voting on candidates and issues that we know very little about. It is rational for most voters to be ignorant about most issues, because the chance of casting a decisive ballot in an election is so extremely low. And the available evidence strongly suggests that much of the public is poorly informed about politics and public policy.

Even if you are an unusually well-informed voter, the enormous size, scope, and complexity of modern government ensure that there will be many issues and candidates about which you know very little. Perhaps you have a good handle on Romney and Obama. But you might not know much about your candidates for governor, senator, congressman, and various local offices, or about the various state and local referenda on the ballot in your area.

It’s unrealistic to expect that everyone will achieve a high level of knowledge about every race and every initiative. But if you find that you know little or nothing about a particular race or ballot question, you might want to consider simply not voting on it. As political philosopher Jason Brennan argues, voters have a moral duty to be at least reasonably well-informed about the issues they vote on, because the decisions they make affect not just themselves but all of society. John Stuart Mill put it well when he wrote that voting is not just an exercise of personal choice, but rather “the exercise of power over others.” If you can’t exercise that power in at least a minimally responsible manner, maybe you should not do so at all.

It would be dangerous to give government the power to forcibly exclude ignorant voters from the franchise. Incumbent political leaders could too easily abuse it to exclude their political opponents or to target unpopular minorities. But there is no such danger if a voter voluntarily chooses not to vote in a particular race because he or she decides they don’t have enough knowledge to vote responsibly.

If you abstain from voting, you might worry that the rest of the electorate will take advantage of the situation to bias policy in favor of their narrow self-interest and against yours. But the evidence strongly suggests that most people’s political views are only weakly correlated to their self-interest. When voters support bad policies, it is usually out of ignorance rather than selfishness. There are some important exceptions to this generalization(e.g. – opinion on gun control is highly correlated with gun ownership, even after controlling for many other variables). But it does hold true for most major issues in the modern US.

There is a legitimate argument to be had about how low your knowledge level needs to be before you should seriously consider abstaining. The answer depends in part on the knowledge level of the rest of the electorate. Even if you know very little about a given race or issue, you may be justified in voting if the rest of the probable electorate is even worse. But, at the very least, you should probably abstain if you know almost nothing. In that scenario, the average of the rest of the electorate will usually be better, or at least is unlikely to be worse.

In this election, as in several previous ones, I’m going to practice what I preach. I think I know at least as much as the average voter about the presidential and congressional races, and about Virginia Question 1. On the other hand, I know very little about Virginia Question 2, and almost nothing about most of the candidates in the local government elections here in Arlington County. With respect to the local races, my knowledge is diminished by the fact that the candidates don’t have party identifications listed on the ballot. Therefore, I can’t even utilize my understanding of the general proclivities of the Democrats and Republicans in this area. As a result, I’m going to abstain on most of these issues and leave them to the rest of the electorate, which hopefully knows more.

There is no shame in being ignorant about some, or even many, political issues and candidates. Such ignorance is often unavoidable, given the many races and issues out there and the fact that we all have competing demands on our time. But at least in some situations, it is wrong for us to inflict our ignorance on our fellow citizens by voting on issues we know almost nothing about.

Well-known libertarian scholars Richard Epstein and Glen Whitman have recently weighed in on a question that has been much-debated in the blogosphere: Who, if anyone, should libertarians support in the presidential election. Epstein argues that we should support Romney as the lesser of the two available evils:

In the final countdown to what promises to be a close election, the libertarian finds himself without a comfortable home in either political party. Political parties and their presidential candidates offer market baskets of policy prescriptions on a large array of different issues. We do not have the option of picking out from each basket the policies that we like and rejecting the rest. Politics do not come served a la carte in our two-party system....

Though no libertarian can take comfort in the blurry Romney campaign, the scorecard does tip in his balance. The state of play nationwide on social issues is decidedly mixed, with too much intolerance on both sides. But on economic issues, the one confident point is that in an age of bloated government, the correct vote goes to the party, when the campaigning is mercifully done, that is more likely to limit the rate of government growth, if not shrink the size of government altogether. This election cycle, that party is the GOP. It is time for a change from Blue to Red, from Obama to Romney.

Epstein’s analysis of the Romney vs. Obama tradeoff is in many respects similar to mine, though I am less convinced about Romney’s superiority than he is. Epstein also makes an important point about social issues. While conservative Republicans are very bad in this area from a libertarian point of view, liberal Democrats also favor many types of social regulation, some of which are just as intrusive as those favored by Republicans. He mentions the HHS contraception mandate as an example. He might also have mentioned the much larger example of the Obama Administration’s expansion of the War on Drugs (which I noted in my own Romney vs. Obama post). If the Democratic Party really were there party of laissez-faire on social issues, it would be much more appealing to libertarians. But much of the time, it simply isn’t.

Glen Whitman argues that libertarians in swing states perhaps should support the lesser of the two major-party evils. But in the other 35 or so states, they should vote for Libertarian candidate Gary Johnson:

[I]f I were in a swing state where conceivably a group of libertarian-minded voters could affect the outcome if they all voted together, I would hold my nose and vote for one of the two major party candidates.

According to the New York Times electoral map, only 7 states are considered “toss-ups”: CO, FL, IA, NH, OH, VA, WI. To these, you might add the 8 “leaning” states: ME, MI, MN, NM, NV, PA (for Obama), AZ and NC (for Romney). If you’re a libertarian voter in one of these 15 states, then I have nothing useful to tell you.

But that leaves 35 states that are solidly in the Democratic or Republican camp, with a combined eligible-voter population of over 136 million (about half that number voted in 2008). None of these states would by any stretch of the imagination get tipped by your vote-of-exaggerated-size. In these states, there is no good reason to vote for Obama or Romney. You can vote your conscience with no fear that your conscience will have doomed our country to the greater of two evils.

And fortunately, there is an excellent vote-of-conscience choice available this year: Gary Johnson. Imagine if everyone like us (that is, libertarians in non-swing states) voted for Johnson. If even 1% of voters were in this category, Johnson would get over a million votes — which might actually be enough to get some attention, and maybe establish a beachhead for another run in 2016.

Whitman’s position is very reasonable. Although I disagree with Johnson on some issues (such as the Fair Tax and foreign policy), I think he’s much better than either Romney or Obama. In my view, the real problem with supporting Johnson, even in a non-swing state, is that third party politics is a poor strategy for promoting libertarianism. I worry that a relatively strong showing by Johnson would lead libertarians to invest additional resources in the Libertarian Party instead of in other efforts to promote liberty that are likely to be more effective. Obviously, this calculation would change if the LP does well enough that they have a serious chance of displacing one of the two major parties in the foreseeable future. But I see little if any chance of that happening.

Finally, it’s worth noting that, even if you live in a non-swing state, there is a very small chance that your vote will make a decisive difference in a presidential election. In this interesting article, Andrew Gelman, Nate Silver, and Aaron Edlin estimated that the chance of casting a decisive vote in 2008 was about 1 in 10 million for voters in several swing states, and an average of 1 in 60 million for the nation as a whole. In some non-swing states, it could be 1 in 100 million or 1 in 200 million. Those are extremely low odds. But, as I explained here, even those low probabilities might make it rational to vote for the lesser of evils if you think the difference between the two is great enough. Moreover, if the odds of affecting the outcome between the two major parties are extremely low, the odds of casting a decisive vote for Johnson in terms of “sending a message” are even lower. While there are situations where one additional vote might make the difference between victory and defeat for Obama or Romney, there probably isn’t any situation where adding one additional vote to Johnson’s count makes the difference between sending an effective libertarian message and not sending one. The only possible exception is that, if Johnson gets 5% of the national vote, the Libertarian Party would qualify for federal matching funds in the next presidential election.

UPDATE: I originally misidentified Glen Whitman as a legal scholar. In reality, he’s an economist. I have now corrected the mistake.

In addition to the presidential and congressional elections tomorrow, there are also some important referenda initiatives on the ballot in many states. They include several on issues of special interest to me and many VC readers: property rights and the War on Drugs.

Here in Virginia, we have Question 1, which would strengthen protection for property rights against eminent domain abuse. For reasons I outlined here and here, Virginia currently has one of the nation’s worst state constitutions on property rights issues. While far from perfect, Question 1 would be a major improvement over the status quo. I hope my fellow Virginians will support it.

Six other states have marijuana legalization initiatives on the ballot, including three (Colorado, Oregon, and Washington) that would legalize marijuana entirely, and three others that would only legalize medical marijuana. As I explained here, all of these initiatives are imperfect, but still important improvements over the status quo. Polling data suggests that the Colorado and Washington initiatives have a good chance of passing, and Oregon is not completely out of the question. This is an important opportunity to roll back the War on Drugs in three major states, and I hope the voters will take it.

According to survey data, opposition to drug legalization comes disproportionately from political conservatives. I summarized the conservative case against the War on Drugs here. Conservatives and others may also want to check out the late William F. Buckley’s reasons for opposing it.

In my last post, I said that Obama should be favored to win the election, and suggested he has roughly a 65-70 percent chance of winning. My estimate of Romney’s chances was based in large part on his relatively strong showing in national polls, which still had him even with Obama late last week. Today, however, the Pew Research Center came out with a new poll giving Obama 3 point lead nationally, among likely voters.

Obama’s lead in this poll is actually slightly greater than the survey’s margin of error (2.2 percent). And Pew is one of the best polling firms in the business. In combination with the other evidence, such as the battleground state polls, I think this gives Obama an even higher probability of winning than I suggested yesterday, perhaps 80% or even more.

This is still going to be a close election, and will still be one of the rare instances where the outcome is not a foregone conclusion well before election day. But at this point, it’s looking more like 2004 (a close election where one side nonetheless has a clear edge) than 2000 (close to dead even). The polls are still close enough that Romney has a shot, especially if you buy claims that the pollsters’ turnout models are overestimating the number of Democrats who will vote. But his chances are much weaker than it seemed as recently as a week ago. A Romney victory is possible, but at this point would be a pretty substantial upset.

If Obama does win a narrow victory, it’s possible that the effect of the hurricane will be responsible for pushing him over the edge. But I think it’s at least equally likely that things have just reverted to the outcome that could be predicted based on the underlying condition of the economy, which has long pointed to a narrow Obama victory, as I explained in this September post. Romney might have been able to overcome these odds had he been an unusually appealing candidate, or if the Obama administration suffered a major scandal or some other clear setback. But neither has happened, at least not to any great extent.

UPDATE: It’s worth noting that the hurricane and reversion to the historical mean scenarios are not mutually exclusive. It could be that Obama’s numbers have improved recently for a combination of both reasons.

UPDATE #2: Some other polls released today show a dead heat. On balance, a set of national polls where some give Obama the lead and others point to a tie is not good news for Romney, especially when combined with the state polls. That said, it’s possible he has a better chance than I just suggested above. I still think Obama is very much the favorite, however, and would certainly give him at least the 65-70% chance I suggested yesterday. Whether the probability of his winning is 80% or higher is much harder to say. In any event, we’ll soon see.