Wednesday, July 18, 2018

Predicting Minnesota’s Gubernatorial Primary Turnout

            What factors influence primary turnout in Minnesota’s gubernatorial elections and what will the turnout be for both the Republican and Democratic parties this August?  Both of these questions are on minds of politicos as predictions mount in anticipation of the August 14, results.  The simple answer is that no one knows, but there are indications that the drivers of turnout in gubernatorial primaries have little to do with state politics or races and instead reflect national trends and moods in politics.
            Past performance does not guarantee future results.  This is true both for stock markets and politics.  Yet past performance provides insights into what might happen in 2018.  The attached table and chart look at Democrat and Republican Party primary turnout for the last six gubernatorial elections.   During this time there have been several changes in Minnesota election law or politics that potentially affect turnout, thereby making it difficult to isolate anyone factor.   Consider some factors.  (text continues below)

Primary Voter Turnout:  GOP and DFL Gubernatorial Race
Total Voted Governor
Total Eligible
Percentage DFL/GOP Governor
1994 September
1998 September
2002 September
2006 September
2010 August
2014 August
2018 August*
* Estimated

            First, note that from 1994 to 2014 the general trend has been for primary turnout to go down.  In 1994 nearly 32% of the eligible voters cast primary votes for a DFL or GOP gubernatorial, decreasing to barely 12% in 2014.  Granted that between those two dates there was one uptick in voting in 2010, but overall the trend line is for fewer and fewer people to show up to cast a primary ballot.  Perhaps this decline reflects a decreasing percentage of the electorate identifying as a Democrat or Republican. 
            For example, in 1994 polls listed 42% as self-identified independents, increasing to 51% by 2014.  Declining partisan affiliation thus might be one factor; however it certainly cannot count for nearly a drop of two-thirds in primary percentage turnout.  Moreover, the high number of independents masks the actual ways that people vote where many of those individuals who eschew party labels nonetheless vote reliably for one of the two major parties, especially in the last generation as partisanship and polarization have increased.
            A second possibility explaining the decrease is the shift from a September to August primary.  While it too may have some effect, it may be minor.  Even before 2010 when the first August primary occurred the general trend was down.  Moreover, the only election since 1994 when the primary participation increased was in 2010–the first year that an August primary occurred.
            A third possibility is that closely contested and (media) covered primaries produce higher turnout.  Again, this is not the case.  In 1994, for example, the Republican primary had very high turnout, but it was really no contest as incumbent Arne Carlson won big.  Similarly, in 1998 and 2002 where there was no incumbent running in either the GOP or DFL primaries, the numbers do not show that open seats that are presumably more contested produce more voter interest.  The one exception is the 2010 DFL primary that featured three well-known and funded candidates–Mark Dayton, Margaret Anderson Kelliher, and Matt Entenza–spending heavily in a closely contested race.  Again, it should not come as a surprise that state and local races are not major drivers of voter turnout–in general voting in these elections is far lower than for the presidential.
            Fourth, perhaps early voting impacts turnout.  The idea of allowing for no-excuses early voting is to make casting a ballot more convenient and therefore increase turnout.  The first gubernatorial election with this type of voting was 2014, filing to show an increase in overall state turnout.  Again, this is consistent with research suggesting that early voting does not necessarily increase overall turnout, it merely stretches voting out over a longer period of time.
            So what might drive primary turnout?  Look more closely at 1994 and 2010. Both of those dates are notable as particularly intense and polarized elections.  Both took place during the first midterm elections after the election of presidents in 1992 (Bill Clinton) and 2008 (Barack Obama).  Both elections saw intense interest in national elections that produced change overs in partisan control of Congress.  Perhaps–and this should not be a unexpected–turnout in state elections in Minnesota and elsewhere is informed by public awareness and interest in national elections.  Such a conclusion is consistent with political science research on variables impacting voter turnout.
            So what might all this say about 2018 turnout?  It too is coming during the first midterm election after the election of a new president.  Polls suggest nationally and in Minnesota voters, especially Democrats, are energized and excited about politics, mostly because of their dislike for Trump.  Assuming turnout in local primaries is related to national interest in politics expect to see turnout increase in this primary.  Even though there is little evidence that early voting or contested races impact turnout, both are present here, perhaps facilitating slightly turnout.
            Given the above, what can we guess (not predict?) regarding 2018 gubernatorial turnout for the two major parties?  As of May 1, 2018, the Secretary of State listed 3,246,893 as eligible to vote in Minnesota.  By August 14, that number will increase, so assume 3,250,000 eligible voters.  Given intensively in national elections, early voting and contested elections, 190,000 and 435,000 voters will cast ballots in the respective Republican and Democratic Party primaries, leading to a total of 625,000 voters or 19.2% overall turnout.
            Broken down even more, for the Democrats, assume that in a three-way race 40% is needed to win the primary, 174,000 is the bare minimum needed for victory.    For the Republicans (even though there are three candidates on the primary ballot), assume a two-way race between Tim Pawlenty and Jeff Johnson and 50% +1 or 87,001 is the minimum threshold for victory given the estimates here.  Of course no candidate should aim for these minimums, with a better strategy being for a DFL candidate to aim for at least 200,000 and the GOP 100,000 as sufficient margin or errors if turnout is higher than predicted.

Wednesday, July 4, 2018

Justice Kennedy and the Myth of the Legal Neutrality

There is a powerful yet enduring myth in America that was shattered as the Supreme Court closed out its 2017 term.  That myth is that law and politics are separate, or at least that the law can constrain political choices.  With 5-4 decisions upholding President Trump’s travel ban, striking down mandatory public sector union fees, and the resignation of Justice Kennedy, that myth has all but collapsed.
The myth of the law was well described by nineteenth century writer Alexis DeTocqueville, who declared in Democracy in America  that:   “There is hardly a political question in the United States which does not sooner or later turn into a judicial one.”  This quote captures two aspects of the myth of law.  First, that at some point all political questions in America eventually turn into legal ones capable of resolution by the courts.  Second, judicial resolution of controversies means that the law  is capable of addressing political disputes, perhaps even permanently, if the decision was made on constitutional grounds.
This myth has played out several ways across American history.  One has been in assuming that the Supreme Court stands above politics and that when it decides it does so on the basis of what the law says, not ideology.  As Chief Justice John Marshall said in Marbury v. Madison, perhaps the most important case in American law: “It is emphatically the province and duty of the Judicial Department to say what the law is.”
The other way it has played out is in many groups placing faith in the judiciary as the guardian or protector of their rights.  They did so because they did not trust  real politics, such as elections and voting, as they way to secure t heir political objectives.  Again to quote another Justice, here Robert Jackson in West Virginia v. Barnette in writing the majority opinion striking down a law mandating the recitation of the Pledge of Allegiance: “One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”   Law stands in opposition to politics, the former constraints that latter, making the judiciary the ultimate protector of abortion, gay, minority, and free speech rights.
Yet the increasing reality is that the law is not above politics, and the judiciary does not use it to resolve political questions, but instead decisions are political themselves.  Political science research  shows that more often than not votes by individual Justices reflect their personal political beliefs. In recent history, the best predictor of how individual Justices will vote is to look at which president appointed them.  In my own research on Justice Scalia, one could show clear biases in decisions based on the issue presented or the litigants in the case.  All of the above is similarly true with the current members of the Supreme Court.
But until 2000 the Supreme Court was able to manage its reputation and hide behind the myth of law.   But when in Bush v. Gore the Supreme Court decided the outcome of the presidential race, public opinion significantly split over it and it has widened since.  Surveys suggest declining confidence in the Supreme Court’s neutrality, and increasing Justices to many look more like politicians in robes.  Chief Justice Roberts, who said in his confirmation hearing that “My job is to call balls and strikes and not to pitch or bat,” looks like the manager of one political team of four  Justices playing against another team of four, dueling for the swing Justice Anthony Kennedy to pitch or hit for their team.
In his tenure on the Court Kennedy was the critical vote in cores of 5-4 cases.  In most years he was in the majority 90% of the time, and in  5-4 decisions, some years 100%.  For the last 30 years it has been Justice Kennedy’s court, as he held the balance of power and restrained the most extreme ideologies.  But even he revealed his biases.  In Citizens United v. Federal Election Commission the Supreme Court signaled after initial oral arguments that it wanted to decide a broader case than originally presented.  When it finally decided the case it ruled in favor or corporate free speech rights, seeing efforts to regulate corporations as censorship.  And now in Janus v. AFSCME, it ruled against unions, with Kennedy casting the critical fifth vote.
Scalia’s death, the delay in preventing President Obama from appointing a successor, Trump’s appointment of Neil Gorsuch, and now Kennedy’s retirement and the politics of his replacement only have or will exacerbate the demythologizing of the law, especially, and which is likely, Justices continue to vote ideologically as political science research suggests.  This is bad because  one of the last realms  where polarization and politics had not tainted government may be gone, leaving the public without any checks on the extremism that has marked contemporary politics.
Perhaps the only bright side may be recognition of the limits on constitutionalizing politics.  By that, one lesson that may be learned is that the judiciary is not the best or final place to turn advance a political agenda.    Elections matter, and groups may have to resort to the ballot box and politics to achieve power and protect their rights or advance their interests, and not rely upon the courts to do so.
Note:  This blog originally appeared in Counterpunch.