Monday, August 29, 2016

Why the Supreme Court Should Rule that the Vote for 15 MN Amendment is Legal

The decision to place the $15 minimum wage on the ballot in Minneapolis is up to the State Supreme
Court.  And it all comes down to what is considered to be a legitimate local municipal function under state law.  If it decides the issue correctly, the Court will reject old, wooden, out-dated conceptions of the law and conclude that a legitimate municipal function includes  promoting the public welfare of its citizens through establishing minimum wage laws.
In her decision ordering the “Vote for 15 MN” charter amendment to be placed on the ballot, Judge Robiner’s decision turned on an interpretation of Minnesota Statutes, §410.07 which declares that permissible content for charter amendments extends to “ any scheme of municipal government not inconsistent with the constitution, and may provide for the establishment and administration of all departments of a city government, and for the regulation of all local municipal functions, as fully as the legislature might have done before home rule charters for cities were authorized by constitutional amendment in 1896.”  The City of Minneapolis did not argue that the Vote for 15 MN amendment was unconstitutional or pre-empted by state law, although that could be an issue central to the Supreme Court’s resolution of the issue.
But the core issue is one whether charter amendments should be narrowly construed to address only the structure of government, such as size or powers of city council, or can it extent beyond that to address what looks like policy issues normally reserved for ordinances.  Thus, what is a legitimate local municipal function?
Robiner resolved the dispute by resorting to a traditional canon of statutory interpretation in arguing that  § 410.07 should be read in a way to give effect to all the words and clauses in the law.  To read the breath of “all municipal functions” as merely repetitious of the content of what charter amendments may do when it comes to addressing “any scheme of municipal government” would fail to give effect to all the statute’s language.  This is good argument, yet her conclusion rendering “all municipal functions” as essentially allowing charter amendments to serve as initiatives or referenda is certain to be met with skepticism by the Supreme Court.  A better route would have been to argue that the reading the City of Minneapolis forces on “all municipal functions” is simply outdated.
Take us back to the nineteenth century.  At that time there were two legal principles that guided municipal law.  The first was Dillon’s Rule.  Dillon’s Rule came from court decision’s in Iowa and it declared that local governments only had narrowly defined powers that were either expressly in implied by state law.  Cities had no inherent powers of their own as they were legal creatures of the state.  These legal  propositions were also true in Minnesota.  However, Home Rule constitutional and statutory provisions, across the country and in Minnesota, have significantly changed if not eviscerated Dillon’s Rule.  Now in Minnesota and across the country home rule cities enjoy broad powers, in many cases that have acquired similar powers as acquired by state legislatures, unless otherwise preempted by state law.
A second major legal change involves what is considered a legitimate municipal function.  More than 100 years ago housing code or zoning ordinances were not considered legitimate municipal functions.  Providing for sanitation, fire protection, or other regulations to serve the public  would not be considered acceptable city functions in the nineteenth century.  The law made a distinction between cities acting in the governmental versus their proprietary  functions.  Maintaining a police department was a city acting in its governmental capacity, running a golf course or a recreation center was not.
Yet nationally this governmental versus proprietary distinction has significantly eroded.  In part that has happened because of an overall expansion or recognition in terms of the scope of what  state governments may do.  States have what is called broad police power authority to regulate to protect the health, safety, welfare, and morals of its people.  The police power authority of states have expanded over time such that few would contest that they lack the authority to do things such as regulate workplaces, including setting minimum wages.
Expansion of what is considered legitimate state functions in an era of home rule that what is considered a legitimate municipal function too has grown.  There is no reason to think that cities cannot too legislate to protect the welfare of its citizens.  This is a legitimate municipal function and that is the that ought to be effected to  § 410.07.

Monday, August 22, 2016

As Scranton Goes So Goes the Nation: or Why Nineteen Counties Will Decide the 2016 Presidential Race

Today's blog appeared originally in the Philadelphia Inquirer under the title of   As Scranton Goes So
Goes the Nation: or Why Nineteen Counties Will Decide the 2016 Presidential Race

It’s not simply a handful of swing states that will decide the 2016 presidential election.  The swing voters in the swing counties of the swing states will decide it.  And if my calculations are correct, it is perhaps no more than 19 counties in 11 states–less than 500,000 voters–who truly matter.  That’s why Scranton, Pennsylvania seems to be so important this year.
From 1988 to 2012 the balance of power in US presidential races has centered on ten states.  Republicans were likely to win 23 states totally 191 electoral votes and  the Democrats winning 18 states and the District of Columbia totally 232 electoral votes.  Then there are ten swing states–Colorado, Florida, Iowa, Nevada, New Hampshire, New Mexico, North Carolina, Ohio, Virginia, and Wisconsin–totaling 115 electoral votes.  As I described in  my Presidential Swing States: Why Ten Only Matter, these are the states where the presidential candidates campaign and visit after the conventions.  They are the bellwether states, the battleground states, they are those most likely to flip from one party to another, and the margin of election victory in each state is generally close, but with some, such as Florida and Ohio, even more decisive than others in terms of their presidential selection influence.
These are still the crucial swing states in the 2016 election.  Trump’s candidacy, both its strengths in appealing to white working class voters which may open up Pennsylvania  as a swing state, or its weaknesses such as its racial overtures in possibly making Utah and Georgia possible Democrat pickups, might change the electoral map slightly.  But the Electoral College and the way states allocate their electoral votes, along with the rise of political polarization and the declining number of swing voters to perhaps 5% of the electorate,  mean that even this year  in approximately 40 states the presidential race is largely already over.
But while pundits write about the swing states, more fascinating is how within them there are only a handful of counties that are decisive.  They are the swing counties where the candidates actually campaign and where if they can win them they win the state.   Since  1988 there have been a handful of swing counties.  In Colorado it is Jefferson County that is key to winning that state.   For  New Hampshire, it is Hillsborough County, North Carolina it is Wake County, Virginia it is Prince William.  In Florida it is Hillsborough, and in Ohio it is Hamilton County.   Win Hamilton you win Ohio, win Ohio you win the presidency.
In 2012 there were 15 counties in the ten swing states that were critical to Obama’s victory.  There were a total of 3,883,000 votes cast and Obama won 53.2%.  He out-polled Romney by less  than 350,000 votes.  It is not clear whether Romney could have persuaded them to switch and vote for him or whether he needed to mobilize other voters, but the reality is that across those 15 counties in ten states, a switch of 350,000 or so votes would now have Mitt Romney running for his second term.
Assume these are the same swing counties and states in 2016.   Perhaps now the number of swing voters in these states is up to 500,000 with population growths. Now add to that Pennsylvania, a state that has voted solidly for the Democratic presidential candidate since 1988.  Trump needs to flip it to win.  There are four counties in there–Bucks, Chester, Luzerne, and Lackawanna–that  may be key to the state.  Lackawanna County–where Scranton is located–seems to be the center of  Pennsylvania’s political universe this year.  Both Trump and Clinton have made recent visits there, expect more by November.  In 2012 almost 97,000 voted in Lackawanna Country with Obama winning nearly 63%.  Flipping that country seems like a tall order.  Yet these four counties had a total of 790,000 voters in 2012, and Obama won them with less than 52%–about a 26,000 spread.  Conceivably Trump could flip them but given that Obama won the state by more than 300,000 votes in 2012, Pennsylvania is a long shot.
Even with Pennsylvania thrown in, there are only about 19 swing counties in this year’s presidential contest that seem to matter.  The number of swing voters there may be less than 500,000.  The key to the 2016 election is moving these few swing voters in these swing counties in the swing states.  The rest of us should vote, but the reality is that the next president will be selected by these few voters in a few counties.

Saturday, August 20, 2016

The 2016 Presidential Election: It Ain't Over 'Til It's Over

Were the United States elections held today it appears that Hillary Clinton would be the next
president.  At least this is what the polls and political pundits declare.  Yet with still nearly 90 days before the general election on November 8, it would not be impossible for Donald Trump to win, although his window of opportunity is closing.
Consider first that in the US the president is not selected by the direct popular vote where whoever receives the most popular votes wins.  Instead to become president one has to win a majority of the electoral vote.  That number is 270.  The US Constitution created the Electoral College as the means to select the president, creating a complex and confusing process (even for American citizens) where effectively the 50 separate states in America have their own rules and election to select their electors.  As Al Gore learned in 2000, one can receive the most popular votes in the US presidential election but still lose because you did not win a majority of the electoral vote.
Because of the oddities of American party  politics, we are certain already regarding how 40 states will cast their electoral votes.  States such as New York and California are reliability Democrat and will support Clinton while Texas and Oklahoma are Republican and will go for Trump.  There are only about ten states that are uncertain and how they vote will decide who becomes president.  These states are Colorado, Florida, Iowa, Nevada. New Hampshire, New Mexico, North Carolina, Ohio, Virginia, and Wisconsin.  These are the swing states, with Florida and Ohio being the two most important.  Thus, the real battle for the US presidency is to win the electoral votes in the swing  states in the race to get to 270.
Now think about what has transpired over the last month.  As it typical after a national political convention in the United States, its presidential candidate generally receives what is called a bump or a rise in the polls.  This is due to the publicity that the convention and candidate receive because of all the television coverage they receive.  Trump’s bump was about six points in national polls.  Coming off of the national Republican convention Trump was tied or had a slight lead over Clinton nationally, but as also tied or in the lead in several swing states including Florida and Ohio.
But then Clinton had her convention and she too received a bump–a total of seven points–and she went back into the lead nationally and in swing states.  Generally post-convention bumps fade, but Clinton’s seems to be holding and today she has a solid 7-8 point national lead and is ahead in all the critical swing states.  She looks today like a certain winner.
In the weeks since the Republican convention Trump has made several major mistakes.  His  often racist rhetoric has scared off minority voters such as African-Americans and Hispanics.  His temperament has raised concerns about how and whether he can be trusted with US nuclear weapons and whether he has the diplomatic skills to work with foreign leaders.  And Trump has simply  not managed his campaign well such that there is even some evidence that his core constituency–angry  white males–are not quite as enthusiastic for him as he needs to have.  Trump needs even greater support among this group that Romney had in 2012 to win, especially given that the percentage of the electorate that is white male is smaller than it was four years ago.  Trump thus needs a bigger percentage of a declining pool of voters and it is not sure that is happening.
Trump’s response has been to blame the media and the news for his bad fortunes and drop in the polls.  He has again changed is campaign staff and it looks like he plans to be even more aggressive in attacking the press and Clinton.  All indications are that he will use of rhetoric of fear and prejudice not too different from what LaPen in France, Hofer in Austria, or the Brexit supporters used in Great Britain.  Whether such a strategy will work in the United States is yet to be seen.  Richard Nixon, whom Trump is modeling his campaign on, successfully used a similar strategy and appeals to law and order in 1968.
But this is not 1968–it is 2016.  There are fewer whites to appeal to now than then as America is more racially diverse.  Second, with Trump’s recent decline in the polls, he may not have  much time to recover.  In many states US election law allows for early voting and the projections are that 40% of voters will cast their ballots in advance of the November 8.  Many voters may thus cast their votes before Trump has a chance to persuade them to change their minds.  In effect there may actually be less than 90 days till the election.  Trump is running out of time to win.
Yet Trump’s other strategy–to claim the election is rigged–is meant to perhaps intimidate some voters from showing up to vote.  In effect it is a variation of voter suppression.  Yet claims of a rigged vote might also discourage some of his supporting from voting, thinking that it might not matter.  All this of course is conjecture.
However, three political debates are scheduled between Clinton and Trump, there is the possibility of a terrorist attack, or something else might change the election dynamics in the next few weeks. There is another Wikileaks dump of e-mails and I can see the House of Representatives moving to try to have Clinton indicted for perjury under oath arising out of her testimony before Congress.  All these could damage her again in ways uncertain.  Yet right now the electoral chances for Clinton look very good.  But still anything can happen. As Yogi Berra once said:  "It ain't over till it's over."

Thursday, August 11, 2016

The Seven Deadly Sins of Political Punditry

Today's blog originally appeared in Counter Punch.

It’s high season for political punditry.   Pundits offer their take on who is ahead or behind and what every insignificant event or utterance means.  But before anyone gets too excited over what they spin,  their observations should be taken with a grain of salt because more often than not their analysis is faulty, corrupted by the seven deadly sins of political punditry.  What are these seven sins?

Confirmation Bias. 

People seek out information that confirms their pre-existing political biases and ignores that which contradicts it.  We surf the web and find memes which confirm what we already know to be the truth and repost and send to others.  One great example–the legendary meme that quotes Donald Trump in  a 1998 People Magazine story saying “If I were to run, I’d run as a Republican. They’re the dumbest group of voters in the country. They believe anything on Fox News. I could lie and they’d still eat it up. I bet my numbers would be terrific.”  To my Democrat friends the meme must be true but alas it is fake and there is no such story.

Cognitive Dissonance. 

Cognitive dissonance refers to the process of having or holding contradictory beliefs and the resulting stress in tying to reconcile and act upon them.  Look at how GOP presidentialswingcandidates and consultants put their best face on in supporting Trump, twisting over issues such as the recent controversy involving his attack on the Khans.  Or how liberals can embrace Clinton even though she supports the death penalty, free trade, and a muscular foreign policy.  One tool to relieve the pressures of cognitive dissonance is by appeal to confirmation bias–simply dismissing contradictory data or evidence.

Making Too Much Deal About the Polls.

There are lots of reasons to question the infatuation of pundits with polls and how too much of a fuss is made over statistically  insignificant changes in their results.  Post RNC and DNC, a lot of noise was made in  terms of convention bumps and who was in the lead.  Historically presidential candidates get convention bumps but after a couple of weeks it fades.  No news here.  Pundits  nonetheless angst over them, especially when they pay for them and make them their main news story, such as what CNN has done recently.

Finally, aggregate public opinion polls in presidential races are meaningless–remember it is not the popular but the electoral vote that determines the president.  The race for the presidency is really 51 separate elections, of which only about ten really matter because that is how few swing states there are.

Misuse of Statistics and Selective Quotations.

Mark Twain once said there are three kinds of falsehoods–lies, damn lies, and statistics.  Political punditry excels in th art of creative lying with statistics.  Candidates do it by only quoting those statistics that support their views, ignoring those which do not.    They also understand that most people are confused by statistics, don’t know the truth, or simply will not bother checking the sources of claims made.

Pundits do the same, especially on all the cable talk shows. Look too at Facebook and the social media.  There is literally very little posted that anyone can really trust.  People repost stuff with full knowledge and reliance upon the belief no one will every check to see if facts are true–such as the Trump meme noted above. This is also the case with posting stories long after they were originally published and now out of context, conveying the impression that it is new when it fact it is out of date or simply wrong now.

Confusing Short and Long Terms Horizons. 

What is true or news today may not be true on election day let alone tomorrow.  The Trump-Khan controversy is a great example.  Yes, it is great news and copy today buts its longer term impact is unclear.  Polls that reflect convention bumps, as noted above, fade, and one should not read too much into short term fluctuations.   Many pundits love to declare events as game changers.   Rarely do we see something as a game changer when it happens and it may take a long time to appreciate what really matters in a campaign.

Thinking what Happens Between Boston and Washington is all that Matters. 

Richard Nixon was famous for asking whether it will play in Peoria.  His point was that what the pundits think is important within the Boston to DC corridor may simply not matter to folks in the rest of the country.  Pundits are too obsessed with inside baseball, thinking that what matters to them and their friends is what matters to the rest of the country. Pundits simply talk to one another.  Watch CNN, MSNBC, and FOX.  They have the same cadre of insiders talking to insiders, predictably saying what you think they would.

Reacting to the Reaction.

Finally, the inside baseball problem of thinking only what happens between Boston and Washington is closely related to the problem of reacting to the reaction, or to unverified rumors.  Too much punditry is about one pundit saying something and then others react to that statement and then others react to that reaction.  At some point pundity is not about real politics but instead is a game of reporting on who pundited about what.  Punditry becomes so wrapped up in itself that it defines its own truth and logic–punditry for the sake of punditry.

So there you have it–the seven deadly sins of punditry.  The next time you see a post on social media or a comment by a pundit on television or elsewhere watch to see how many of these sins they commit.

Friday, August 5, 2016

Trexit: Or How to Prevent Trump From Becoming President and Electing Mitt Romney Instead

Mark Twain was famous for once declaring that the rumors of his death were greatly exaggerated.
   One might say the same of the rumors of Donald Trump dropping out of the presidential race.
Dominating the pundit rumor mill this week have been stories that Trump is preparing to drop out of the race.  Of course such rumor is fueled by those who do not like him–the establishment GOP–and all of those panicking over the continuing Trump-Khan controversy and Clinton opening up what appears to be a seven or more point lead over him.  Let’s put all this into perspective.
First, ignore the polls.  What is going on right now in part is the fluidity of two post-convention bumps.  Trump received his 6 point bump and went into the lead and everyone reacted  to that bump–including Nate Silver and Democrats who suddenly realized this was a close race–and then Clinton got her 7 point bump and went into the lead.  Soon her post-convention bump will fade and within a week or so we shall have better sense of what the aggregate polls mean.  But as I always tell people the aggregate polls are meaningless–we elect presidents not by aggregate polls but by the Electoral College in 51 separate races where there are only about ten swing states that matter.
Second, let’s see if the Kahn controversy has long-term legs.  It may be different than Trump’s previous attacks on McCain, women, immigrants, and everyone else, but we just do not know yet.  For Democrats and some swing voters his behavior is deplorable but for his core base it may not matter.  For other swing voters they may be numb to his comments.  Moreover, yes Trump had a bad week but the election is still more than three months away and lots can happen by then.  Moreover, do not discount the power of fear and prejudice in a campaign and how it will impact the election.
Third, yes Trump has damaged himself in some ways but the big story this week was how big and small donors are starting to support him and how he has almost pulled even with Clinton.  Slowly Trump may be building the infrastructure he needs to compete.
Fourth, Clinton still has her problems.  Her DNC speech was weak and the bump she received was not because of her (in part because fewer people watched her Thursday speech compared to Trump’s or other DNC speakers on different nights).  Clinton was good in her critique of Trump, weak in terms of the case for herself.  There is still a strong underbelly of party disunity  with many Sanders’ supporters and even though polls say one thing it is not sure they will really turn out for her.  And finally for now, there is another batch of Wikileaks e-mails due to come out that could hurt her.
My point–the rumors of Trump’s death are greatly exaggerated–pushed by GOP who dislike him and by pundits who need to see airtime and ink.  This is all noise and it does no more than confuse people, producing bad analysis.
But having said that, what if?  Are there ways to de-rail or replace Trump?  The answer is a qualified yes.  Let me propose a way that Mitt Romney could still be elected president of the United States.
Option 1: Trump quits the race.  Assume Trump takes his bat and ball and goes home before the election, what happens?  Rule 9 of the Republican National Committee allows for them to select his replacement.  Here is the rule.

Filling Vacancies in Nominations
(a) The Republican National Committee is hereby authorized and empowered to fill any and all vacancies which may occur by reason of death, declination, or otherwise of the Republican candidate for President of the United States or the Republican candidate for Vice President of the United States, as nominated by the national convention, or the Republican National Committee may reconvene the national convention for the purpose of filling any such vacancies.

The Committee is not the entire body of convention delegates but those on the national committee.  They could pick Mitt Romney to replace Trump.  In some ways, this is Clinton’s nightmare.  Earlier this week she and Obama declared him unfit to run for president and suggested he needed to be replaced.  Sometimes one should not wish for something you might get.   Romney would be a much stronger candidate than Trump and could well beat Clinton.
Option 2: The electors do not vote for him.  Assume Trump appears to win enough electors on November 8 to win the presidency (he needs 270).  Later on December 19, when the electors meet it is possible for some not to vote for Trump.  Even though some states have laws requiring electors to vote for whom they are pledged, these laws punishing “faithless electors” are toothless and maybe unconstitutional.    Electors could simply en masse vote for a different candidate such as Romney  or in a large enough percentage to prevent Trump from getting the 270 electoral votes he needs to win the presidency.  If he does not win 270 then the Constitution calls for the House of Representatives to select the president from among the top three electoral vote receivers.  Assuming Romney won a few electoral votes this way to qualify as one of the top three, he could be selected  as president by the House.
Remember also when the House picks the president it will be the newly elected House this  November.  The Constitution says that in picking the president each state gets one vote and a candidate must receive a majority of the states to vote for him or her.  Right now the GOP has a majority of the delegation in more than half the states and it is unlikely that will change in November, barring a major Democratic landslide.  Assume the GOP continue their hold on the majority of state delegations in the House, they could vote for Romney to be president.
Option 3: Congress refuses to certify a state delegation.  Assume there is a disputed election in a state such as Florida or Ohio.  There is a question over the electoral votes.  Congress in certifying the electoral votes could refuse to certify the votes of a particular state and prevent a candidate from winning a majority.  If that happens, then combine that with the facts from option 2 and again the House could possibly pick Romney as the next president.
While all of these three counterfactuals are unlikely, they do suggest alternative routes to preventing Trump from becoming president. Of course, he could run and simply lose and that too is a possibility, but so it could he win.  Clinton is not a slam dunk.

Monday, August 1, 2016

The Trump-Khan Saga–Was this Trump’s Joseph Welch Moment and Why It Will Not Hurt Him

So the story that now emerges out of the DNC is how the best speech on Thursday night if not the
entire convention was Khirzr Kahn.  It has over-shadowed Hillary Clinton’s and through the weekend the media went apoplectic over how Donald Trump responded first in attacking the Kahn’s and then in declaring  “While I feel deeply for the loss of his son, Mr. Khan who has never met me, has no right to stand in front of millions of people and claim I have never read the Constitution, (which is false) and say many other inaccurate things.”

Yet again the politicians and the pundits have declared that this is the controversy that will doom Trump.    For those who remember, Khan’s comments are reminiscent of the testimony in 1954 by Joseph Welch who brought down Joe McCarthy with his “Have You No Sense of Decency" retort.  Some are asking whether Trump just had his Welch moment. I doubt it.

First, there are lots of reasons to condemn what Trump said.  It reveals his thin-skinness, his inability to admit he is wrong, and a quick temper that all tell us something about his character and perhaps fitness to hold office.  All this is what the Democrats are saying and the Khan controversy adds to their talking points about what Trump is not fit to be president.

Yet there is something deeper in terms of Trump’s comments that are more significant in terms of a criticism that suggest parallels between him and Joe McCarthy.  Specifically, it the contempt both share(d) for the Constitution. When Trump says that Mr. Khan“has no right to stand in front of millions of people and claim I have never read the Constitution,” Trump actually proves the point that Khan is seeking to make.  Specifically, the Constitution, more specifically the First Amendment, gives Khan and everyone else-citizen and non-citizen–the right to criticize public figures and officials.  What Mr. Khan did was engage in core political speech–the most protected form of speech that our First Amendment protects.  

To use the language of the law, when Trump said Khan had no right to claim he had not red the Constitution, Trump is more or less estopped in his denial that he never read the Constitution, or at least understands it.  But this would not be the first time that Trump has displayed no working knowledge of the Constitution.  His comments last year about the Fourteenth Amendment and citizenship for immigrants was one example.  Him saying that he would defend the non-existent Article XII of the Constitution, or declaring at the RNC that he alone could fix America’s problems (to the apparent disregard of the concepts of checks and balances and separation of powers) all suggest Trump is woefully ignorant when it comes to the Constitution.  Were he my Introduction to American Politics student he might well earn an F as a final grade for his lack of knowledge of basic American civic and government.

But none of this might matter–I doubt these latest comments will hurt him much.  For starters, all but a few people have already made up their opinions about Trump.  For those who support him these comments will not change their mind.  For those who oppose him, the same. The only impact here will be upon the few swing or undecided voters in a few swing states in terms of how this latest controversy affects how they might vote.  For these few voters, Trump’s comments either will long be forgotten by November 8.  Or for these voters and perhaps the public at large, they may already be numb to Trump’s comments.  He has already insulted so many people so many times these comments are simply one more and they may not make a difference.

There is another reason too why Trump’s comments may not hurt him–he managed yet again to dominate the news cycle.  Little attention was given to Clinton over the weekend.  Her and Kaine toured Pennsylvania yet she received minimal coverage.  Trump controlled the news cycle again,  forcing Democrats again to react to what he said.  So long as Trump forces Democrats to react to what he said he wins, making it more difficult for the Democrats to articulate their views and opinions.

So yes, Trump got it all wrong constitutionally, his comments again were again offensive, he may be the new Joe McCarthy, but nonetheless it may not matter.