Minnesota’s Governor’s Race Tightening According to Star Tribune/MPR Poll? A Lesson in How Not to Read Polls

The Star Tribune/MPR declare in a new October 21, 2018 poll that the race for governor has tightened in Minnesota, with Walz holding a narrow lead over Johnson  Is that the reality?  The simple answer is that we do not know based on the polling data the paper provides, but the poll also provides a lesson in how not to read and interpret polls.

I teach polling and survey research.  I learned how to        do this both from professors at Rutgers University who have gone on to run the Pew Research Center and their polls, and from Charlie Backstrom at the University of Minnesota who wrote one of the best books ever on polling.  I say this because while I may not be able to do a good poll myself, I do understand what constitutes a good versus bad poll, or at least how to interpret their results.

In an October 21, 2018 poll of 800 likely voters the Star Tribune/MPR poll shows Walz with a 45%-39% lead over Johnson, with 12% undecided.  The poll has a respectable 95% confidential level and a margin of error of plus/minus 3.5%.  The results in the poll compare to a similar one done by the Star Tribune/MPR on September 16, 2018, also among 800 likely voters and a margin of error of plus/minus 3.5% showing that Walz had a 45%-36% lead with 16% undecided.  The conclusion of the paper was that Walz had a narrow lead that was tightening between the two polls.  Is this a correct conclusion?

There are many reasons to correct how accurate such a conclusion is.  First, consider the margins of error in both polls +/- 3.5%.  In the September 16, poll Walz could have been as high as 48.5% or as low as 41.5%, and Johnson could have ranged from 42.5% to 35.5%.  Compare this to the October 21, poll where the range for Walz could be 48.5% or as low as 41.5%, while for Johnson it could be 42.5% to 35.5%.  What we get are so polls so close in terms of their results that given the margins or errors, the differences in the poll results could be simple polling or sampling errors.  It is difficult on the basis of these two polls alone to conclude very much in terms on anything.

Perhaps the only thing that intuitively makes sense is that fewer voters are undecided in October than  September.  But the difference of four percentage points is so close to the margin of error that it is too possible to conclude that any shift in the number of undecideds is statistically almost insignificant.

There are three other issues with the two polls that raise questions about how much one can infer from them.  First, in both polls 40% of those polled came from cellphones and 60% from landlines.  Nationally and in Minnesota we have reached a point where more than 50% of the population is without a landline according to the National Center for Health Statistics and industry surveys.  The best surveys research now seeks to have approximately 60% cellphone numbers.  The Star Tribune/MPR poll has an almost exact reverse of what is recommended.

Who still uses landlines?  Generally, the older you are the more likely to only have a landline while the younger the more likely to have only wireless.  This is significant because age is a variable in terms of voting patterns, with presently older people more likely to vote Republican than Democrat.  Thus, even though  both the September and October polls may have an approximately correct balance of Republicans, Democrats, and independents, they might have over sampled those who are more likely to vote Republican, especially among those who call themselves independents.  The reason for this is that many independents really are not independent–their voting patterns actually favor one party over another. Thus, both polls might have been biased in favor of Republicans.

Second, both polls perhaps over-sampled the metro area with 61% of respondents coming from the metro area, compared to a more historical norm of 53-55%.  While demographics in the state are changing, this metro bias perhaps meant that  the polls favored voters more likely to lean Democratic.

Third, it is unclear from the polling methodology who is considered a likely voter.  We know that historically between 10-15% of those who vote in Minnesota register at the time of voting.  Mason-Dixon, which does the polling here for the Star Tribune/MPR, in the past has not produced a good methodology that accounts for this phenomena.  Failure to do this again raises questions about the poll’s accuracy.  Finally, the poll fails to account for the fact that voters in greater Minnesota vote in greater percentages than those in the urban areas.

So what is the point I am making?  Comparing these two polls it is hard to infer as much in terms of trends as suggested by the data and we really cannot say that the Minnesota gubernatorial race is  close or tightening.

Why Doug Wardlow Can’t Fire all the DFLers–It’s Unconstitutional

If it is correct that Republican Doug Wardlow would fire all the Democrats in the Attorney
General’s office if elected, he would be acting illegally, violating the Constitution, and opening him and the State up to numerous lawsuits that he would lose.
Media accounts indict that Doug Wardlow said at a recent fundraiser that he would fire all the DFLers “right away” in the Minnesota Attorney General’s office if elected.  Whether such a statement contradicts prior statements of his that he would not politicize the office is another issue.  However, while at one time it may have been true that to “the victor belongs all the spoils” when it comes to considering partisanship or party in public employment decisions, that is generally unconstitutional.
In the old era of spoils and patronage, partisanship or party affiliation could be considered in personnel decisions such as hiring, firing, and promotions.  Yet those days are long since gone.  In addition to civil service laws dating back to the nineteenth century limiting such a practice, the  U.S. Supreme Court has weighed in, ruling that except in the case of some narrowly defined  confidential and policy  positions, it is a violation of one’s First Amendment free speech and association rights to have employment decisions in government decided on the basis of one’s political party or political views.
In a series of what are called the patronage decisions, that include  Elrod v. Burns, 427 U.S. 347 (1976),  Branti v. Finkel, 445 U.S. 507 (1979),  Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990), Board of County Commissioners v. Umbehr, 518 U.S. 668 (1996), and O'Hare Truck Service Inc. v. City of Northgate, 518 U.S. 712 (1996),   the Court ruled  that the consideration of partisan affiliation or party activity in the hiring, firing, promotion, or letting of contracts was a violation of the First Amendment.  It did so by declaring the use of partisanship or party preference is not a compelling governmental interest in employment decisions.
For example, in Elrod v. Burns Justice Brennan argued that patronage is a threat to democracy and popular government because of the advantage it gives to one party in the electoral process.
It is not only belief and association which are restricted where political patronage is the practice.  The free functioning of the electoral process also suffers.  Conditioning public employment on partisan support prevents support of competing political interests...As government employment, state or federal, becomes more pervasive, the greater the dependence on it becomes, and therefore the greater becomes the power to starve political opposition by commanding partisan support, financial or otherwise.  Patronage thus tips the electoral process in favor of the incumbent party, and where the practice's scope is substantial relative to the size of the electorate, the impact on the process can be significant (356).
        The Branti Court reaffirmed their holding in Elrod.  In the latter Justice Stevens’ majority opinion stated that the real question in the case was "whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved” (445 U.S. at 518).  The Court found that except in a few narrow circumstances, partisanship was not an appropriate requirement.  In Rutan Justice Brennan stated that: “Today we are asked to decide the constitutionality of several related political patronage practices—whether promotion, transfer, recall, and hiring decisions involving low-level public employees may be constitutionally based on party affiliation and support. We hold that they may not” (497 U.S. at 65).
Justice O'Connor wrote for the Court in Umbehr and ruled that the First Amendment protects independent contractors. In O'Hare, Justice Kennedy wrote for the Court, also holding that independent contractors have First Amendment protections against municipalities considering support for a particular candidate influence the awarding of contracts. In reaching this conclusion, the Court stated that past precedents established by Elrod and Branti, holding that public employees could not be dismissed because of their political affiliation or views, extended to independent contractors. Kennedy also ruled that the First Amendment protects the rights of government contractors against dismissal for their political views or affiliation.  The moral of the story:  Independent contractors enjoy First Amendment protection against the termination of contracts with the government as a result of their expression of their political views.
Overall, in five cases, bipartisan Supreme Court majorities ruled unconstitutional what Doug Wardlow wants to do, if done in a wholesale fashion.  He might be able to consider partisanship and political views for a small number of close senior advisors, but certainly not in the way he is quoted in the media.
Were Wardlow to fire all or some of the assistant attorneys general based on party, he would open up his office and the state to potentially scores of lawsuits.  This alone is a problem.  But second, if in fact the primary job of the Attorney General is to represent the State of Minnesota in Court, the question then would raise a legal ethics conflict of interest problem.  An attorney dismissed from the AG’s office based on claims of partisanship would name the Attorney General and his office as well as the state of Minnesota as the respondent. What if a DFL governor objected and wished to oppose the firings, the AG could not be the one being sued and defend the State of Minnesota at the same time. There is a clear conflict of interest that would force the State to spend money to hire an outside law firm to sue the AG.  Such a scenario creates numerous ethical and legal problems for the state.
Overall, whether Wardlow was serious about his intention to fire Democrats or it was simply a stump fundraising speech to rally Republicans is immaterial.  An attorney general cannot take actions that violate clearly settled constitutional law, and were he to do so it would raise many legal and ethical problems for him and the state. 

The Face of Privilege: The Lessons of the Brett Kavanaugh Confirmation Hearings

One thing that the Brett Kavanaugh Supreme Court hearings destroyed was the myth of legal
neutrality.  That may be a good thing because it is time to recognize both that the Supreme Court and its Justices are not politically neutral and that neither should be.
An enduring myth of American politics is that the Supreme Court is above politics and that the Constitution and the law are neutral.  This myth, perpetuated by Alexander Hamilton, the constitutional framers, and legal education, is central to the legitimacy of the Supreme Court and the decisions it reaches.  For Justices such as Antonin Scalia who urged that the Constitution be interpreted by the intent of its framers, locating its meaning in their intentions was part of  the myth.  Legal neutrality is a powerful anchor for the court’s capacity to command obedience, providing a cover to suggest that the Justices were not simply politicians with robes.  Law schools, in teaching individuals how to think like lawyers, often refuse to discuss the power and politics behind the law, wanting to claim instead that legal reasoning and methodology are neutral.
The reality is that the law is an instrument of power and politics, often reflecting the biases and ideologies of the judges who sit on the Court.  Beginning in the 1930s legal realists such as Jerome Frank made that point. But other legal scholars such as Randall Kennedy, Catherine MacKinnon, and adherents of the Critical Legal Studies movement from the 1970s pointed out that the law as a whole embodies the values of the rich, those who are white, male, and straight. 
Political scientists using statistical models can show ideological and attitudinal biases and preferences on the part of individual Justices and how in recent years the best predictor of how a Justice would vote is look at the appointing president.  And while many want to point to the Supreme Court as the counter-majoritarian institution that protects what the most famous footnote in legal history calls “discrete and insular minorities,” the reality has been for most of its history it has either endorsed majoritarian  preferences or the minority it has protected has been that of corporations and the wealthy.  The bias of the Supreme Court is best shown in how in its 2010 Citizens United v. Federal Election Commission it freed  corporations to spend unlimited money to influence elections as a form of free speech, while in its 2018 Janus v. AFSCME it used the First Amendment to silence labor unions and make it difficult for them to raise and spend money for political purposes.
Brett Kavanaugh is the perfect embodiment of the Supreme Court’s bias.  He will be yet another Justice from an elite Ivy League Law school, a graduate of an Ivy League undergraduate institution, a product of a private prep school.  He has entitlement written all over his face, but collectively so does the entire Supreme Court.   Even its so-called liberal members represent an elite  hardly representative of American society, rarely challenging the core capitalist power and values that give meaning to the Constitution and the law.  The Kavanaugh ascension and coronation to the  Court have perhaps finally stripped the myth of legal neutrality from the Court, making it clear that it is another face of power and politics.
Stripping away this will scare many, but it should be a wake up call.  For too long progressives and Democrats have placed faith in the judiciary as the final bastion of protection for them when it comes to reproductive rights, civil rights, and other personal and political freedoms.  They foolishly hoped what Alexander Hamilton once called the “least dangerous branch” would be powerful enough to check the other institutions and provide blind justice for all.  That belief should  now be gone.
Unmasking legal neutrality is good.  The public needs to recognize that neutrality is not neutral–it supports the status quo which is not neutral.  Moreover, in so many ways, we should  not want real legal neutrality–whatever that is–in our Supreme Court and Justices.  In a confirmation hearing were a nominee to say that he could not comment on whether the Constitution made discrimination illegal because it is an issue that might come before him, one would hope that he would be rejected.
The point is that we should hope that the Constitution and Justices are not really neutral, that  instead they should  respect and reflect an evolving constitutional morality and set of principles that express certain values.  We should expect the issue of reproductive rights is not an open question but instead is a resolved and settled constitutional issue.  So should the questions about racial, gender, and other forms of discrimination.  One should hope that our evolving constitutional morality respects as settled that members of the LGBTQ+ community are entitled to equal protection.  We should hope that an evolving constitutional morality says that money should not determine the outcome of elections or decide major questions in a democracy, or that the death penalty is an acceptable punishment. 
The myth of legal neutrality by hiding the power and biases of the law perpetuates the idea that questions of fundamental rights such as those noted above are a matter of debate.  They should not be, but they will continue to be contested until such time as one recognizes how the law masks and supports a privileged viewpoint that is not necessarily democratic.