Why the DFL will lose the Minnesota House

The DFL are going to lose the Minnesota House.  There are many reasons for this but the main one is arrogance–both a refusal to recognize a bad strategy and an unwillingness to admit mistakes.
    On the face of it, the DFL has much to cheer about come November.  It will sweep the constitutional offices with Dayton especially winning by a wide margin.  Franken too will win, probably big, as there is no sign that the election is tightening, contrary to what reporters any my colleagues rotefully declare.  The coattails of these statewide victories plus the large cash advantage that the DFL enjoy should in theory be enough to keep them in power in the House.  But it won’t be enough.
    Yes, there are obvious reasons why the DFL will lose.  Obama is unpopular and dragging down the party.  It is a mid-year election and DFL voters are less likely to vote.  Both of these factors explain why big-name Democrats such as the Clintons and Michelle Obama have visited the state with the hope of rousing the base and instilling passion into DFL voters.  But still that will not be enough to overcome other major problems of the DFL.
    Consider first that the DFL won many seats in 2012 by close margins in Republican areas.  They did so in part because if was a presidential election year and also because they benefited from Republican legislative overreach in the 2011-2012 session.  This means the DFL are defending many seats that are in Republican areas, or at the least, seriously lean GOP or are at best swing. 
    The second problem is the lack of a Democrat or DFL narrative.  Obama had a great narrative  in 2008 but since then at the national level there has been no narrative for reelection.  That is why Democrats were trounced in 2010.  Obama held on in 2012 because Romney was such a horrible candidate.  Dayton won in 2010 because Emmer was a weak candidate, and in 2012 the DFL won less on their narrative and more on GOP failures.  This year, there is still no national Democrat narrative and at the state level, the narrative too is missing.  Yes Dayton and Democrats can run on  their record of accomplishments and on a good state economy, but neither play well in swing districts.  Moreover, the DFL do not have a good narrative to counter MNSure, Obamacare, the new Senate Office Building, and many of their other legislative acts.  Yes all of these play well to the base, but not to swing voters. There is a nagging yet silent sense of DFL over-reach here, but when you put it all together, what is the narrative?   “Four more years?”  “If you liked the past you will love the future?”  The narrative is cloudy at best, thereby explaining in part the lethargy of the DFL voter.
    But perhaps the main reason why the DFL will lose the House has to do with arrogance.  It is arrogance on several scores.  Over the last few months I have given more talks across the state than I can count.  Repeatedly I hear that th DFL is using a cookie-cutter approach to running a state legislative campaign.  They are using the same messaging, GOTV, and tactics in all of their campaigns.  Such an approach is a recipe for failure, ignoring the special issues and needs of different districts.  While we may live in a era where elections are often nationalized, Tip O’Neill is still correct that all politics is local. 
    Almost 30 years ago I moved to Minnesota and saw a party still fixated on the past. I saw a  DFL bureaucratic and dominated by a small core of activists who in many ways still dominate the state and think the way you win is the way they used to win.  Say what you might about the GOP, but the TEA has brought in a new crop of activists into the Republican Party, willing at times to challenge it with new ideology and tactics.
    But what I have heard about and see this year is that the DFL leadership has refused to acknowledge that their strategy and campaign projections are flawed.   It is a urban-based approach that might work well in cities with lots of Democrats, but it is still not well suited for many suburbs  and especially rural Minnesota. I have heard several DFLers over-confidently say there are only about 8 swing races in the state, self-assured that there are some seats they really do not need to defend. Too many individuals have told me that they have been refused support or volunteers because the DFL thinks their race is unwinnable.  Or that the DFL has not supported a race because of petty jealousies. 
    There is a lot of ego on the line here.  Many in the DFL leadership have a stake in being considered wise gurus–they have decided who can win or lose and how–and they do not want to prove themselves wrong less they lose their stature within the party.  This insularity and making it all about them is a sure downfall for the DFL this November.

Three Myths: Election Fraud, Big Foot, and the Loch Ness Monster.

Yet again voter photo ID is rearing its head in Minnesota, and still there is no good reason to have it. On January 13, HF0089 was introduced by a host of Republican authors in the Minnesota House of Representatives. The bill would require the presentation of a voter picture identification before receiving a ballot. The bill is popular with the GOP and with voters in general, but it is probably destined for a Dayton veto if sent to his desk.

Voter ID is one of the stupid public policies that I often rail about. Its apparent need is grounded in political myth. The myth is that there are significant numbers of illegal voters or voters–including felons, immigrants, and other undesireables–who are affecting the outcome of elections. Were they prevented from voting, and only real Americans could vote, then perhaps Democrats would not win close races, Franken and Dayton would not be in office, and Coleman and Emmer would be senator and governor. Thus, the reason why Franken and Dayton won in close races is simple–voter fraud or election official incompetence.

I am not going to devote an entire article to yet again discussing the myth of voter fraud. I have done previous blogs on it and have written a couple of articles questioning evidence for its existence. But a few simply points are appropriate. Let me do that I terms of a Q & A.

Q: Voter ID at the polls is needed to prevent fraud.
A: No one will argue that there is no fraud in the election process. No system is 100% perfect. Mistakes are made but mistakes are not the same thing as fraud. In general, the studies on voter fraud indicate that it is minuscule and that there is no evidence that it is widespread enough to have altered the outcome of an election in Minnesota or perhaps anywhere else. When one actually examines the incidence of alleged fraud–felons voting when they should not–the total potential fraud is often .00000N of all votes cast. The reality is that the amount of alleged fraud is far less than the winning margins by Franken and Coleman.

Q: But has not the Minnesota Majority done studies to show fraud exists?
A: Sure they have done studies but they are not worth the paper they are printed on. Methodologically they are sloppy and they make all kinds of claims about double voting, etc. However once investigated by country attorneys and others the numbers and their claims evaporate. I remember a few instances where they claimed a person at one address had double voted. It turned out that a father and son with the same name lived at the same address. It is this type of sloppiness that they engage in when the do their studies.

Q: Ok but voter fraud is hard to detect. Just because only a few cases of fraud are revealed shows how hard it is to detect. Election fraud is like littering (according to Judge Posner) or speeding. More cars speed than receive tickets. Actual tickets issued are only a small fraction of total fraud.
A: the analogy to vehicular speeding is inapt. Speeding in a car is a continuous 24/7 activity that can occur anytime and anywhere. (The same is true about littering) There is no single detection point or place where people can speed and therefore with the almost infinite amount of cars driving along almost infinite roads, it is virtually impossible to detect all instances of speeding. Thus, the few speed traps that are set up obviously only detect and capture a small spectrum of all speeding.

However, voting or voter fraud is a discrete activity. It can only occur at a specific point in time or place and in order to commit fraud one has to commit it by going through specific point–a voting booth. Thus, all instances of fraud must go through and exit a single detection point. To be successful, in person fraud requires either a false registration, false signature, and tricking an election judge. The point is that to commit voter fraud one has to get past multiple detection points or check points. One can speed without every crossing a detection point (speed trap).

The point here is that the analogy of voter fraud to speeding or littering is inapt. One can speed or litter almost anytime or anyplace. This is what detection hard. The few instances detected and prosecuted are perhaps only a small sample of a larger pattern of speeding and littering that may exist. In addition, beyond detection and prosecution, other evidence, such as police using radar guns to detect speeders but not issue a ticket, or anecdotal statements from drivers that they speed, may corroborate inferences that it is more prevalent than prosecution may suggest. With littering, proof can be found along roadsides and fields across America–the fact that there are cans, papers, and other refuse there points either to the contests of garbage cans being knocked over or intentional littering.

One can only vote in person in a finite number of places and within a finite time. To vote, especially in person, there are several steps and checkpoints in place. There is in 42 states voter registration before election day. This is one check. For all 50 states, in-person voting requires someone to show up, give a name to an election judge and generally sign a log with which there is a signature match. There may be other requirements too. What this means is that one has to go to a specific place to commit fraud and cross past numerous detection or check points before one can actually submit a fraudulent ballot. One does not simply have to speed past a law enforcement officer to violate a motor vehicle law.

Thus, the analogy to speeding or littering is inapt. Lacking more proof that fraud exists, we cannot infer that it is more widespread than it is. Instead, we might be able to easily infer and argue that the few cases that occur demonstrate how well our election system works and how we are able to detect and root it out.

Q: But if we had photo ID we could prevent fraud?
A: If little fraud already exists, then how can we deter what does not exist? Moreover, there is a powerful circular logic to supporters of photo ID. They argue that the ID is need to detect fraud. But in jurisdictions where the ID has been adopted no increase or report of fraud has been documented. Supporters then make a second claim–photo ID deters fraud. You cannot simultaneously argue that the use of an ID will make detection easier and at the same time claim it will deter fraud. Such a pair of arguments are empirically untestable. Thus supporters must rely on faith and not evidence to support their views.

Q: But what is the big deal about the ID? One needs an ID for just about anything in society, including cashing a check or renting a car.
A: Cashing checks and renting cars are not constitutionally protected rights. Voting is a constitutionally protected right. It needs to be examined not in terms of what is a normal societal or commercial practice but in terms of a constitutional right. Society may require a merchant to go door-to-door to sell products but the First Amendment correctly states that groups such as the Mormons and the Jehovah Witnesses do not need a permit to go door-to-door to proselytize.


Q: Photo ID is supported by large majorities of the population. That is reason enough to enact it–majority rule.
A: Yes, we do live in a country based on majority rule, but our Constitution and Bill of Rights say that it is majority rule tempered by minority rights. There are many things that majorities may want to do. They may not like the religion of some sect, the speech of some critic, or the color of someone's skin. But these are not reasons to allow a majority to have its way.

Justice Jackson in West Virginia v. Barnette said it best: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to . . . freedom of worship . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

Q: But voter ID is needed to restore faith in the election process. Belief in voter fraud is deterring voting.
A: There is no evidence for this. Some statistical analysis has been done and found no evidence that a belief in voter fraud is depressing the public from voting.

Q: So if there is no real good reason for pushing voter ID, why does the GOP keep advocating it?
A: It is a great wedge issue. It divides the electorate. In addition, it provides comfort and explanation to why they lose close elections, especially in Minnesota. It is also a cynical way to engage their political base and fund raise. The reality is that there is no real good reason for photo ID, but it sounds politically good and it offers a narrative that appeals to many.

Emmer Concedes: The Futility of Going to Court

What took Emmer so long to concede the election? Many of us saw the futility days, if not weeks ago, but Emmer troopered on. But many factors came to a head on Tuesday making it clear that it was over.

The recount process was effectively over and Mark Dayton maintained a nearly 8,800 vote lead. The Minnesota Supreme Court ruled against Emmer on his argument about reconciliation and the matching of the number of ballots with voters. He had withdrawn almost all of his frivolous and non-frivolous ballot challenges, and there appeared to be no other place to add to his totals. The math was against him, and opinion polls showed nearly two-thirds of Minnesotans said he should concede.

All of these factors were important considerations to his decision. But, perhaps the most underrated variable or factor transpired last Friday when Justice Paul Anderson–in his capacity as a member of the Canvassing Board–hinted to Emmer’s attorney (and former chief Justice) Eric Magnuson that bringing a court case might violate state law and legal ethics. It was from that point on that Emmer withdrew many challenges, leading to the concession on Wednesday.

What was Anderson talking about and how did it affect Emmer’s decision to concede? What might his comments say about others still thinking of challenging the election outcome?

Emmer Concedes..But Will Others?
Emmer has conceded and stated he will not raise a legal challenge to Dayton. But will the Republican Party or other loyal supporters forego a challenge? That is the great question. On December 14, the State Canvassing Board will meet, likely declaring that Dayton has the most votes and then issuing him an election certificate. However, what is not clear is whether the GOP or someone else will contest the election outcome, thereby forcing a trial, the delaying of the issuance of an election certificate, and the possible seating of Dayton as governor on January 3. This delay means Pawlenty stays on as governor–with a Republican legislature–foreshadowing an opportunity to adopt a legislative agenda many conservatives have wanted for decades.

Filing an election contest is tempting. Yet those who see it as a way to damage Dayton or push a Republican agenda, they should think again. Legally, it is not so clear that a challenge would get far and instead, it could be dismissed quite quickly.

Bringing the Election Contest
Even if Tom Emmer opts not to contest the election that does not end it. Minnesota Statute §209.02 permits any voter in the state to bring a contest, challenging the “irregularity in the conduct of an election or canvass of votes, over the question of who received the largest number of votes legally cast, over the number of votes legally cast in favor of or against a question, or on the grounds of deliberate, serious, and material violations of the Minnesota Election Law.” This is a broad statute, permitting almost anyone in the state to challenge the election for almost any reason.

Even if Emmer does not contest it, it does not preclude State GOP Chair Tony Sutton and the Republican Party, or any other party in the state from doing it. Some interest group or party could contest the election, believing it could delay the seating of Dayton for months.

Responding to a Contest
But if a contest occurs, will it be a repeat of the nearly six-month delay in seating of a winner as occurred with Franken and Coleman? No, there are critical differences here.

First, the vote difference here is enormous by comparison. The math is against Emmer winning. There are not enough votes in dispute to reverse Dayton’s lead. Additionally, there are really no good legal arguments left for Emmer to raise now that the Supreme Court ruled against him. There is also no evidence of serious or widespread voter fraud. In short, whatever legal arguments Emmer or a third party could raise, they would not change the outcome of the election–Dayton still wins.

If a contest is brought, Dayton’s attorneys could respond by saying that they concede all the legal arguments raised by the other side but nonetheless it would still not change the outcome of the election. This is sort of like asking for a directed verdict or a summary judgment in the case. These options could dispose of the contest quickly.

But a second option could prevent the case from going anywhere. Rule 11 of the Minnesota Rules of Civil Procedure precludes lawyers from filing suits that are frivolous that seek to harass, cause unnecessary delay, or are brought for other improper purposes. Similarly, legal ethics, specifically Rule 3.1 of the Minnesota Rules of Professional Conduct, prohibits attorneys from raising frivolous claims. Lawyers who bring such cases run the risk not only of having them immediately dismissed but also face sanctions from the courts. Every first year law student learns to fear Rule 11 sanctions.

One could argue that any election contest that simply seeks to delay the seating of Dayton is frivolous and runs a Rule 11 risk. Moreover, even if there are some outstanding legal issues or questions, bringing a court case here is risky. Unless one can demonstrate that but for these legal issues Emmer would have won, such a lawsuit could be labeled as frivolous. Dayton’s lawyers could raise a Rule 11 claim and perhaps get the case dismissed almost immediately, along with subjecting any attorney both to legal sanctions and the threat of ethical discipline.

Overall, those who think that filing a contest is a simple way to delay matters should think again. Their suit might easily be dismissed and their attorneys may face severe legal and ethical sanctions.

Politics and Economics: Magnuson’s Threat and Obama’s Problem

Politics:
The Gubernatorial Recount

The Minnesota Canvassing Board met yesterday (12-3-10) to review ballot challenges during the Minnesota governor’s race recount. Two fascinating things emerged: First the numbers regarding the challenge, second the dialogue between Tom Emmer’s lead lawyer, Eric Magnuson and state Supreme Court Justice Paul Anderson.

First, with almost all of the recount done, Dayton still leads by approximately 8,800 votes. The recount, as of 2 PM yesterday, yielded 2,880 frivolous challenges by either the Dayton or Emmer side, and 909 non-frivolous by the same. The total is 3,579, the bulk of them coming from the Emmer camp. The Dayton camp had then announced it was withdrawing all these challenges.

When the Canvassing Board examined the frivolous challenges, it became clear to all that they were in fact frivolous. For example, in Renville County Emmer people appeared to challenge all ballots where there was a write-in candidate for the school board. Clearly Magnuson when confronted with that fact was embarrassed and had to admit that he needed to withdraw these challenges.

What the review of the ballot challenges demonstrated is a couple of things. First, even if all the challenges by Emmer broke his way he could not eliminate the 8,800 vote lead that Dayton has. Second, the frivolous challenges were just that–frivolous–and they will be rejected. This further narrows any gain that Emmer may have.

Overall, what the recount suggests is that for the most part the Minnesota election system is probably 99.9%+ accurate in reading voter intent and counting. The final vote after the recount will be essentially the same as it was before the recount started.

These facts are increasingly clear to Emmer’s attorney Eric Magnuson. I enjoyed the exchange between them. Anderson first pointed out that lawyers cannot bring frivolous lawsuits (Rule 11 as we all learn as 1L law students). Bringing such suits is sanctionable and unethical for lawyers. Second, Anderson asked Magnuson if he really wanted the Canvassing Board to review all the frivolous challenges even though it would potentially take a lot of time and even if he did prevail, they still would not win.

This is where Magnuson offered a threat. He said that he expected the Board to do its job and review all these ballots in the interest of obtaining an accurate count. He did not address the issue that the numbers do not work for them. His threat seemed to be if you do not examine them now (which could delay finishing the recount and certifying Dayton the winner) then Emmer might have to ask a court to do that later.

Thus, the real strategy emerges–and Anderson pointed it out. Emmer and Magnuson seek to delay the recount process now and perhaps make it difficult for Dayton to take office on January. If the Canvassing Board does not do what they want then they will go to court afterward to raise their legal challenges–even if it does not change the result. There is also no promise that they will not seek to delay now and go to court later. Thus the threat.

As I watched the hearing I thought a lot about legal ethics. I teach professional responsibility or legal ethics to law students. Anderson was correct that lawyers cannot bring frivolous claims and we have an obligation not to use the legal process simply to obstruct justice. That is what is going on here. I thought also about how current Minnesota law allows an election contest almost for any reason. Ethically, lawyers should not be able to bring election contest suits unless they can show that were they to prevail in their arguments the result of the election would have gone the other way (they would have won).

The ethics problem I see here is that even if Emmer could prevail in all his legal arguments, that will not produce enough votes to change the outcome of the race. Dayton still wins. If legal ethics does not prevent bringing this type of suit, counseling a client such as Emmer (who is also a lawyer) that he should not take this type of action because it is purely vindictive should be what we ask of a client. But in the end, I recommend we amend Minnesota election law. The law should say that one does not have an automatic right to file a contest. Instead, there must be a “but for” threshold that needs to be met. By that, an attorney would have to plead that but for the legal mistakes made, the results would have been different. This should be the standard governing frivolous suits. If one cannot show the results would have been different then one should be barred from bringing the suit or judges should be allowed to dismiss on motion. This may still be a possibility for Dayton lawyers should Emmer go to court, but a statutory rule would be better here.

Economics: Obama’s Problem
Three bits of bad economic news this week. First, only 39,000 new jobs were generated for the American economy, pushing the unemployment rate to 9.8%. Second, the Financial Times pointed out this week that in the next few months 6.5 million homes will go into foreclosure. Third, The Economist pointed out that October, 2010 existing home sales dropped by 2% compared to September, and by 26% compared to October, 2009. Sale of foreclosed or distressed homes constituted 34% of all sales in October, 2010.

The US economy remains weak, despite the consumer holiday shopping rush and record profits for corporate America. With an anemic GDP growth rate in the third quarter of 2.5%, unemployment is not turning around soon. Weak employment and home sales (and continued foreclosures) suggest more aggressive measures are needed to help the economy. However, I see little coming from the Obama administration, even without the coming gridlock from a new GOP Congress.

Obama has a problem. Yes “it’s the economy, stupid,” but it is also him. He helped the banks and they are again profitable but he failed to help homeowners and jobseekers very much. Getting extended unemployment benefits is a short term fix, but does not to really help the economy, those looking for work, or those losing their homes. Obama and his economic team never seemed to get it in the first 22 months and they still seem clueless about the need to directly intervene into the mortgage markets to stabilize the economy and to take more direct action to encourage job growth. Simple tax cuts that are not targeted will not solve those problems.

The economy wrecked Bush I when he ran for re-election. This is Obama’s problem now to worry about.

Do the Math: Part II (Emmer's Strategy)

A few people called me to ask if there was a math formula to calculate the actual number of ballots that would have to be pulled to allow Emmer to overtake Dayton’s lead. Here it is.

D-E=G

Where:
D= Number of votes Dayton loses in reconciliation per 100 ballots.
E= Number of votes Emmer loses in reconciliation per 100 ballots.
G= Net gain(loss) of votes to Emmer in reconciliation per 100 ballots.

1/100 (N +(G)) =8770

Where
N= Number of ballots removed in reconciliation.

Thus,
Assume for every 100 ballots removed during reconciliation, 60 below to Dayton and 40 to Emmer.

D-E=G
60-40 = 20

1/100 (N +G) =8770

1/100 (N (20))= 8770
20N = 877,000
N = 43,850

Now assume that for every 100 ballots removed during reconciliation, 50 below to Dayton and 45 belong to Emmer.

D-E=G
50-45= 5

1/100 (N +G) =8770
1/100 (N (5))= 8770
5N= 877,000
N= 175,400

Notice several things with reconciliation. First, assume during reconciliation that Emmer and Dayton are close in votes statewide and therefore removal of ballots would produce a rough equivalent for each of them. In this scenario for every 100 ballots removed 50 belong to Dayton and 45 to Emmer. This is a net gain of 5 for Emmer. This would require 175,400 ballots to be removed from the state. This is 175,400 phantom or overvotes. An improbable number.

Second, since Emmer and Dayton in the general election appeared to receive about the same percentage of votes, randomly removing ballots during reconciliation to produce a 50/45 let alone a 60/40 ratio is statistically near impossible. This is a point made in the Pioneer Press last week by UMN statisticians.

Third, if in fact ballot removal during reconciliation could produce 50/45 or other ratios like this, it suggests that in fact Dayton did get more votes than Emmer and that what the latter is seeking to do is shrink the size of the voting pool until he wins. There is only one way Emmer can do that and win–cherry pick the electorate.

Specifically, look to the three biggest counties for Dayton–Hennepin, Ramsey, and St. Louis. If Emmer can concentrate on removing ballots from these counties then he runs a statistically better chance of winning than if ballots are generally removed by reconciliation across the state. Thus, Emmer’s route to victory? Remove ballots in counties that went for Dayton and hope it alters the outcome.

This explains claims of fraud in these three counties. Assert fraud here, remove (presumably Dayton) ballots, and use that strategy of vote suppression to win. This is a cherry-picking strategy no different that what Bush accused Gore of in Florida 2000 when the latter only wanted recounts in the three counties he thought he had most to gain. Here, Emmer wants to remove ballots from the three counties he did the worst in, hoping to achieve victory by not counting every vote but by suppressing selected ones.

Do the Math: Why Emmer Can’t Win Even If He Got His Way with Reconciliation

There were no surprises in the rejection on Monday of Emmer’s petition before the Minnesota Supreme Court demanding reconciliation to take place prior to the recount beginning. That decision, along with the State Canvassing Board’s determination that the difference between Dayton and Emmer is 8,770 votes, or less than 0.5% (less than one-half of one percent) means the state mandated recount will begin on Monday.

But what if Emmer got his way? By that, what if in fact it is the case that there are phantom votes in Minnesota? What if in fact there are more ballots than those who voted, necessitating reconciliation? What if, per state law, election officials did randomly remove ballots from those lawfully cast as specified by state law, could Emmer win? In theory yes, but the math is against him.

How to do Reconciliation
Think about how reconciliation would work. Assume that there are 1,000 overvotes in the state of Minnesota. This means there are 1,000 more ballots than signatures in the registry. This means that 1,000 votes would have to be removed from around the state to bring the total number of ballots in line with the number of people who actually voted. Both Dayton and Emmer received approximately 43% of the statewide vote. All things being equal, a random distribution of 1,000 ballots removed across the state would mean 430 removed that had voted for Dayton and 430 for Emmer. Emmer is thus still behind by 8,770 and he has gained nothing. He still loses.

For Emmer to win on reconciliation, he has to assume more of the ballots removed per reconciliation belong to Dayton as opposed to him. Consider some possibilities.

Let us assume that if ballots had to be removed, 60% of all ballots removed cast a vote for Dayton and 40% cast a vote for Emmer. We shall assume no ballots removed voted for Horner. With this 60%/40% ratio there would have to be 43,850 ballots removed for Emmer to come even with Dayton and negate his 8,770 lead.

Spelled out in more detail:

.6x X 43,850 =26,310
.4x X 43,850= 17,540
8,770

Assuming 60% of the ballots removed is rather optimistic for Emmer. Assume instead that 50% of the ballots removed are cast for Dayton and 40% are for Emmer. The remaining 10% are for Horner and other candidates. With this ratio there would have to be 87,700 ballots removed for Emmer to pull even.

Spelled out in more detail.
.5x X 87,700 = 43,850
.4x X 87,770 = 35,080
8,770

But is there that much Fraud or Error?
Thus, for Emmer to tie Dayton, he would need at least 43,850 ballots to be removed. More likely, he would need to have closer to, if not more than, 87,700 removed. This means there has to be at least 43,850 overvotes or phantom votes (to use Emmer’s term) for him to at least tie Dayton. Given that there were 2,123,369 ballots cast in 2010, one has to assume at a minimum that 2% of all the votes cast were phantom, with it perhaps closer to 4%. This means that at least 2-4% of all ballots cast were improperly counted and need to be removed.

The degree of fraud or error to produce these numbers is unlikely. Under no conceivable circumstances can I imagine this type of error rate in the state. But this is precisely what Emmer has to assume if he were to win on his reconciliation argument.

What is my point?
The point is simple. Emmer cannot win even if he gets his way and were he to have won or would win his reconciliation legal argument. The math is against him given the number of ballots and errors that would have to occur for him to prevail. The outcome (Dayton winning) does not change if Emmer would have won his legal argument.

A Legal Issue: Reconciliation is Unconstitutional
Finally, assume that we do have to do reconciliation if there are discrepancies as Emmer alleges. The stated statutory remedy is randomly removing ballots. If that were to occur I think the state law is unconstitutional. By that, if voting is a fundamental right protected by the First and Fourteenth Amendments (and that is true), subjecting voters to random denial of having their ballot counted because of election official counting errors or mis- or maladministration is clearly a denial of a right to vote. I think the current state law is unconstitutional

Politics and Law: The Real Issues Behind the Minnesota Gubernatorial GOP Recount Challenge

Alexis DeTocqueville once stated in Democracy in America: “There is hardly a political question in the United States which does not sooner or later turn into a judicial one. Consequently the language of everyday party-political controversy has to be borrowed from legal phraseology and conceptions.” How true that is. Behind every legal question is a political issue. The same is true with the Minnesota Republican Party going to court this week asking for a reconciliation of votes in the 2010 gubernatorial election, claiming there are phantom votes out there that may have cost Emmer the election.

This is a legal challenge without merit. However, the issue is not about the law, but laying the political foundation or cover for a possible legal challenge to delay the seat of Dayton after he is probably declared the winner in mid-December.

Let us look at the so called legal claim. It asserts that the Hennepin and Ramsey County election officials have failed to undertake a reconciliation of votes after the election. Stated simply, there are more votes or ballots than actual voters–thus phantom or manufactured votes. In effect, vote fraud. The suit asks for reconciliation to take place before the State Canvassing Board meets to order a recount.

The suit is meritless and the timing of it is interesting. The period between election day and when local canvassing boards meet and then before when the State Board meets, is set up for election officials to finalize the count. This is routine and happens every election where the vote totals change due to counting and reconciliation. Thus, the lawsuit–when you cut to the chase–is to order the election officials to do the job they are already doing! Big deal.

The suit came about one week before the State Canvassing Board will meet. This is legally significant. As I point out in a Law and Politics piece by Paul Demko a court will likely invoke a well established administrative law rule that requires you to exhaust your administrative remedies before going to court. What this means is that the courts will not act until the election officials have finished doing their job. If when they are done there is a problem then the courts will act. Moreover, another legal doctrine comes into play–injury. Even if there are phantom votes, it is possible that the Canvassing Board and then eventual recount will find and correct the problem. Until such time, Emmer has suffered no real legal injury. Therefore, the court will not act.

Any lawyer who has taken administrative law or graduated from law school kindergarten knows these legal doctrines. So why file the suit? Enter politics.

First, Andy Birkey of the Minnesota Independent points out the affidavits filed by the GOP in the suit where mostly from Republicans. This fact, along with the flimsy legal assertions, raises suspicion, as I point out in that piece, that the suit is political. But what is the political motive?

Quite simply, I suspect that most Minnesotans do not want another recount but the law will require it. There is little indication that Dayton’s 8,700 vote led will change and he will not emerge the winner. In fact, to the best of my knowledge, no candidate with a lead this large has ever had it reversed on a recount. Thus, when on or around December 14, when the Canvassing Board declares Dayton the winner, Emmer and the GOP will have a hard time convincing Minnesotans that they have meritorious legal claims (that could reverse the election) justifying going forward. They need political cover. That is what this suit and their rhetoric are about now.

The goal is twofold: First, to raise suspicions in the minds of Minnesotans that there are serious legal questions about the race. Do that by raising questions of phantom votes, voter fraud, of manufactured votes. All this is an effort to provide political cover for a suit to delay seating Dayton so that they can have control of the Legislature and the Governor’s office for a few precious months. Over the next few weeks look to see allegations of fraud increase. Look to rhetoric stating “We want to make sure every vote counts” or “We are bringing this suit just to make sure the election is fair,” all as ways to justify a court challenge.

The second goal is to placate supporters. Face it, Emmer and the GOP ran a bad gubernatorial campaign and lost to Dayton who ran a good one. There is finger pointing and blame going around. Sutton and the GOP raise this challenges to shift the blame elsewhere. We did not lose, the other side cheated or won by fraud. This suit then simply is to comfort the faithful base.

About a week ago I was standing in the Hamline parking lot in the rain talking to my law school dean. He asked me what legal theories would justify a court challenge in the gubernatorial race. I said I could not come up with any serious enough that would eventually change the outcome. That is still my sense today.

My Upcoming Video Chat- Online 'Seats' Available!

Keep Monday night open! I am going to offer an hour-long interactive video/audio chat with the public regarding the 2010 elections and offer predictions for how politics are likely to play out nationally and in Minnesota. The online event will take place Monday, November 15, 2010 from 7-8 p.m.(CST).

I'll be utilizing the latest technology, Elluminate Live!, a web conferencing program and virtual environment to provide a fluid, powerful video chat experience with up to 100 chat participants. I'll respond to questions and comments from those participants while leading a discussion about the 2010 election results locally and nationally. I also plan to address what Minnesota is likely to experience once a new governor is named and how it may differ depending on which candidate claims the spot and when they do so.

I'd love for anyone interested to 'attend' this online event. To join the session, please click here within 30 minutes of the session start time.

To view the hardware and software pre-requisites for Elluminate Live! click here.

Explaining Election 2010 Part III: Recount Mischief and Dayton’s Opportunity

Politics is about power–getting it, exercising it, and holding on to it. This explains the intensity of campaigns and of strategy in governance. This will also suggest some interesting issues as the recount moves forward and once a new governor is selected. Assume power is what politics is about. How should that play in for the recount, GOP control of the legislature, and Dayton, assuming he becomes governor? Here is my pale attempt at Machiavelli–writing about how to get and keep political power.

Recount Politics
Assuming by November 23, the margin between Dayton and Emmer is less than ½ of one–percent, there will be a mandatory recount. It is curious to note that at present the difference between the two candidates is approximately four-tenths of one percent. This past session the legislature voted to reduce the recount margin to 0.25% but it was removed in conference committee. Had it passed and been signed by the governor we might not be talking mandatory recount now.

It made sense to lower the threshold. Reforms in voting technology and in absentee balloting make errors less likely now than in the past. Second, in a state of 5 million people and approximately 3.6 million votes, differences of ½ of one percent are far greater in terms of the number of votes than in a state of 3 million voters. A one-half percent gap is a lot of voters. In this race, making 9,000 or so votes is far harder than a few hundred from even just a couple of years ago. Lacking a mandatory recount, Emmer would have to decide if he wishes to pay for an optional one. The mandatory recount will probably cost more than $100,000–at taxpayer expense. Had Pawlenty signed the bill taxpayers might be saving money.

Assume the recount proceeds. Sometime after December 14, when it ends the loser–and presumably Emmer–will have to make a choice. Do you accept the recount and move on or challenge it. Power politics suggests go for broke and challenge. Some worry the GOP will use the challenge to delay seating Dayton so that they can pass a quick budget, cut taxes, do redistricting, and address social issues while they have control of both branches. Yes, this is tempting. Pawlenty could use this to burnish conservative credentials for a presidential bid, demonstrating what he could do as a GOP president presiding over a GOP Congress.

But there is danger of overreach. Minnesotans are fed up with recounts. An appeal to the courts by Emmer and the GOP may look like a pure power grab and backlash against them. Thus Sutton and Emmer need to weigh backlash against opportunity. Backlash could end a GOP legislative majority in 2012, a year that may be more DFL friendly with Klobuchar and Obama on the ticket.

Dayton’s Opportunity
What should Dayton do? Some DFLers bemoan that he is powerless now that the GOP has legislative control. Not really. Look at how Pawlenty has outfoxed the DFL legislature for the last few years. MN governors have lots of power–vetoes, line item vetoes, executive orders, and other tools of appointment–to exercise. Dayton needs to use them.

The first issue for Dayton is who he plans to appoint to what. DFLers are salivating, finally patronage after 20 years+ of spoils drought. But Dayton and the DFL have an uneasy relationship and he may not necessarily appoint in ways that simply reward a party not always supportive of him. He needs to appoint to reward supporters, cement his coalition, and build for the future to take back DFL control of the legislature in 2012.

First thought: Name Tom Horner to be in your administration. He offered on election night to serve the next governor. Take him up on that and use it as a way to build bridges with Independence Party people. This is an opportunity to reach out to moderates and pull them away from the IP to the DFL. The IP might be a permanent 10%party. Use this as a chance to bring them over and party-build. I hate to say that this is an opportunity for party-raiding but this is the time to do that.

Second thought: Dayton has a four year term. Because of redistricting, all House and Senate terms are two years. Use this time frame to pressure the GOP. They want to hold power. If they overreach in the next two years you can point that out in 2012. Will the GOP risk cuts to K-12 and throw grandma out of the nursing home when they face election? Force the GOP to make the tough budget choices and then use the veto and bully pulpit as Pawlenty did to attack them.

Third thought: Effectively MN has an appointed judiciary with 90% of judges reaching the bench initially by gubernatorial appointment. Dayton will be the first DFLer in 20 years to appoint judges. Use that opportunity wisely.

Conclusion
Crisis is both a challenge and opportunity. Dayton, Emmer, the DFL, and the GOP face crises if they wish to maintain political power. Times like now power is in flux and opportunities portend.

Explaining the Election 2010 Part II: How and Why Dayton (Apparently) Won

Unless the recount reverses it, Mark Dayton is Minnesota’s next governor and the first DFLer to win since Perpich in 1986. Contrary to assertions by GOP State Party Chair Tony Sutton that something smells fishy when Republicans win control of the legislature and the Oberstar seat but lose the governor’s race, neither fraud nor shenanigans need be invoked to explain the outcome. Instead, the simple answer lies in the fact that Tom Emmer and the GOP ran a horrible campaign and it was only the backlash against Obama and the Democrats that made it as close as it was.

No Fraud, No Foul
At the most simple level, by the logic of Sutton’s statement the GOP should have won the offices of Secretary of State, Auditor, and Attorney General, but they did not. Additionally, Sutton apparently ignores the phenomena of ticket splitting–voting one way at the legislative and another at the constitutional office level. Finally, by his logic, one could argue that Pawlenty should not have been elected, at least in 2006, because of the overwhelming vote for DFLers that year.

No, Sutton’s comments don’t make sense. They instead prematurely raise the specter of fraud, seeking to insinuate that because (in his belief) Franken only beat Coleman due to fraud, the same must be true here. Of course Sutton forgets that Coleman was never able to prove widespread fraud in court and his attorney, when appearing before the Minnesota Supreme Court, admitted the same. As I have written elsewhere, the best studies and empirical evidence on voter fraud is that it is negligible at best. Fraud is the unlikely answer for why Dayton won.

Instead, Sutton’s comments remind me of the great line from Hamlet: “The lady doth protest too much.” The real roots of Dayton’s victory lie in part in how bad Sutton, Emmer, and the GOP were in running the governor’s race.

Dayton’s Candidacy
Unfortunately we do not have exit polls to assess fully why people voted the way they did. We do have election returns revealing that Dayton won the metro area and St. Louis County as expected, and he also did well in other rural areas, at least compared to recent DFLers. But our information is limited. Thus, some conjecture is necessary.

Dayton’s apparent victory stemmed from several advantages he had. First, there was the overwhelming name recognition, especially among the elderly. As flawed as most pre-election polls were, this name recognition helped. Elderly vote, and that matters.

Second, Dayton was the only major party candidate with a lieutenant governor from greater Minnesota (here the Iron Range). This advantage was critical to Dayton’s DFL primary victory.
Third, Dayton had public sector union endorsements because of his stance against more budget cuts. While unions are experiencing declining political clout, one can presume AFSCME got out the vote to help Dayton and preserve their jobs.

Thus, think about it–Dayton reunited the old DFL coalition of urban liberals, unions, and the Iron Range. This is the classic recipe for DFL success in yesteryear. He was the first DFLer to bring this coalition together since Perpich. He did it with a reinventing of the old Perpich slogan of making Minnesota the “brainpower state.” This time Dayton stressed education in general, appealed to female voters, and forged a 2010 version of the 1986 message. How odd? An almost back to the future campaign tactic. Long term, such a coalition may not work, especially if your name is not Dayton, but this time it did.

But one should also not forget Dayton’s fortune helped. He outspent Emmer. He stayed on message talking about education and benefitted from a state less adverse to taxes than the nation as a whole.

Emmer’s Candidacy
Emmer ran a terrible campaign. It started with his convention speech when he declared he would run from the right and not the center. Generally you cannot win from the extreme when you only motivate your base and do not appeal to swing voters. The balance of power is capturing swings. Nationally, Democrats had the swings in 2006 and 2008, but lost them in 2010. Emmer never had them in 2010 since he disavowed them from the start.

Second, Emmer had a terrible summer. His missteps on taxes and tips cost him. He let the DFL paint him as a right-wing nut and he never overcame that image. In someways he was swiftboated by the DFL and like Kerry in 2004, he never overcame that image.

Third, Emmer had a McCain problem. In 2008 McCain knew “change” was the mantra of the year but how to run on change when you are of the same party of sitting president whom the public wants to change? Pawlenty was Emmer’s Bush. Minnesotans wanted change and the DFL tied Emmer to Pawlenty. Emmer talked of change but had the same problem when McCain talked of it.

Finally, the GOP and Emmer tried to use the national strategy at the state level. It worked with the legislative races, but not with the gubernatorial race so much. Sometimes cookie cutter strategies do not pan out.

The Horner Effect
How did Horner factor in? Whom did he hurt? I think he hurt Emmer more, but not for reasons most think.

I participated in a Republican Jewish forum about one week before the election. Sue Jeffers, Mitch Berg, and others were on the panel with me. When someone asked about whether they should worry about moderate GOPS such as Arnie Carlson, David Durenburger, and Al Quie endorsing Horner, Jeffers and others said let them go. They disparaged them as RINOs and were glad to see them go. Emmer and Sutton simply wrote off and ignored the old moderate Republicans, taking the Jim Demint tactic about ideological purity above coalition and victory.

The Horner press conference where many former GOP legislators endorsed him spoke also to that alienation they felt. Similarly, on November 5, I spoke to the Minneapolis Rotary club and lunched with one of my favorite former GOP state senators who expressed the same feeling–they were not wanted!

My point? Horner did not steal voters from Emmer. Emmer never went after them. Even if Emmer were not in the race I doubt Emmer would have gotten them. Either they would have stayed home or at best split with Dayton. But given Emmer’s lack of appeal to swings, Dayton’s victory might have been greater.

The Oberstar Effect
Oberstar lost because he ignored his district and took his victory for granted. It was like a page out of Edwin O’Connor’s "The Last Hurrah." One DFL precinct captain told me she never got a call from the Oberstar people. Additionally, the southern part of the 8th district is more conservative than the northern part and Oberstar was weak there, counting on the northern part to rescue him. It did not because he ignored it.

However, the Democrats on the Range are changing. They are perhaps becoming more of what used to be called Reagan Democrats. This is a concern for the DFL in the future.
Overall, had Oberstar run a better campaign and won Dayton might have done even better than he did.

Conclusion
A better than expected Dayton campaign, a horrible campaign from the right by Emmer, a national GOP anti-Obama surge, and a pathetic Oberstar campaign can account for much of the gubernatorial outcome. One need not invoke fraud or nefarious reasons to explain Dayton’s victory.

Last word
I predicted a 46% (Dayton), 43% (Emmer), and 12% (Horner) result. The final was tally as of today is 43.6%, 43.2%, and 11.9%. Judge for yourself how I did, especially compared to the pre-election polls!

Why Vote. . .and How?

Growing up in New York a wonderful woman next door turned to me on Election Day in the 1960s and advised me: "Don't vote, it only encourages them to run!" This advice, from an 80 year old plus woman, perhaps under the influence of whiskey, expressed dissatisfaction with politicans and candidates whom she saw as narrow-minded and petty.

I am reminded of her as I think about the looming Election Day this Tuesday. Many of us will render our choices based on fear, self-interest, anger, or who knows what. None of those reasons should guide our voting choices. We can do better than that.

Tom Horner, the Independence Party candidate for Minnesota governor, is haunted by the wasted vote syndrome. He should not be. Nor should any other candidate for office who is considered a longshot, such as Jim Meffert in Minnesota or a Charlie Crist in Florida. Individuals should select their first choice–vote your hope nor your fears–as the saying goes, regardless of whether the choice is Horner, Emmer, or Dayton for governor, or another candidate for another office.

But the first choice of whom to vote for should be more than simply casting a ballot out of anger, self-interest, or partisanship. It should be a vote for our collective future, not simply a private preference. Voting is a private act, but it should also promote a public good.

Voting: A Tale of Two Presidents
What do I mean by saying voting should promote a public good? Political scientists write about the strategy and reasons for voting. Some say we vote based on partisan preferences or affiliation. Others contend it is premised on looking backward, or maybe to the future, or based on economics (“It’s the economy, stupid” as James Carville would say). All of these theories have descriptive cogency. But voting should also have a normative or ethical component.

There are good reasons for why to vote a particular way and there are bad reasons. The worst in my opinion was launched 30 years ago with Ronald Reagan who closed out his campaign by asking voters “If they were better off now than four years ago.” This mantra propelled narrow self-interested greed into American politics, asking voters only to consider their own selfishness when they vote. The path from this Reagan quote to Gordon Geckos’ (of the movie Wall Street) “Greed is good” is direct and short.

The best reason or motive to vote? It came from another president in my lifetime–John Kennedy. It was not an election slogan or gimmick but the most famous call to duty from his inaugural address in 1961: “Ask not what your country can do for you but what you can do for your country.” It was a call to what is noble not base, to the public good and not the private interest. It was a call to look beyond partisanship to what is best for all of us.

JFK’s call sounds quaint in the era of self-interested partisanship. But it is precisely the sentiment that needs to guide voters this year.

What is a Wasted Vote?
As you ponder your voting choices prior to Tuesday, think about your choices and reasons to vote.

Vote not as a Democrat, Republican, Independent, or something else. Vote as an American or Minnesotan.

Vote not on the basis of partisanship but on what is in the best interest of the country or the state.

Vote not on the basis of narrow self-interest but what is in the collective public interest of us all.

Vote not on the basis of simplistic attack ads and 10 second sound bites but with a sense of realism. Solutions to our collective problems are not simple and are not rooted in blaming "those people."

Vote not on the basis of promises that seem too good to be true but on what is realistic and seems possible.

Vote not on the basis of whether you are now better off than four years ago but ask how your choice will improve our state or country four years form now.

Vote not because you want to freeze the hands of time in some halcyon mythic time of the past in order to take back your country. Recognize that the country belongs to all of us, but especially to a multi-cultural, multi-racial future where we are all in it together.

Vote for a world that will be better for your children, not just your bank account.

Remember, there are only two types of wasted votes: Those not cast and those where you vote for your second choice. Vote for the candidate of your choice, but make sure your choice is what will promote the best interests of us all.

Political scientists like me make predictions based on patterns we have discovered. Prove me wrong and vote for what is best for us all, and make that your first choice.

Poll Predictions and Calling a Winner (Dayton)

Continued Poll Confusion?
Poll uncertainties continue to dominate Minnesota politics as recent surveys produce vastly divergent results. The MPR poll reveals a 12-point lead for Dayton in the governor’s race, while other surveys yield a narrower lead for Dayton. How do we explain all this?

As I argued in an earlier blog, part of the problem with the surveys is that they are not necessarily capturing the underlying demographic reality of Minnesota. The MPR poll vastly overestimates the percentage of the population which is DFL and it underestimates the percentage who are independent or who have no firm partisan identification.

In addition, many of these polls are done on the cheap, failing to develop good samples that balance appropriately the percentage of the population which is Twin Cities urban, suburban, Iron Range, and greater Minnesota. Other problems are under-sampling by age, caused in part by missing cell phone-only users. There are also issues of who actually picks up a LAN line to answer a call. Some of these survey problems can be solved by increased samples sizes but that means more costly surveys.

But other problems are not solved with money. They are rooted in assumptions about what the state looks like demographically, especially from a partisan perspective. To repeat an earlier blog, here is my approximate assumption of what the state looks like:

35% DFL or leaning DFL
30% GOP or leaning GOP
10% Independence Party (IP) or leaning IP
25% Other or no party identification

Any poll that vastly departs from these approximates, such as the MPR poll, is flawed from the start. My assumptions of these percentages are based on post-2008 election exit polls and they reveal declining support for the DFL and GOP since then. The estimates are also based on talks with party leaders and analysis of voting trends, and efforts to piece together some valid data from the polls.

Finally, let me also say that my estimates are rooted in someone who, in previous a life, worked on or ran about 50 campaigns back in NY, my knowledge gained from teaching campaigns and elections and research methods (I wrote a book on the topic), my knowledge of Minnesota, and finally, some gut intuitions.

Predicting the Governor’s Race
Given the above, my prediction for the governor’s race? Here is how I analyze it.

Each of the three major candidates is doing a pretty good job holding their bases. Thus, I start with Dayton, Emmer, and Horner at 35%, 30%, and 10%. While the polls have been flawed, two initial truths come out: 1) Dayton and Emmer are holding about 80% of the bases and Dayton and Horner are capturing most of the swing or moderate voters. I am going to assume Horner is holding about 90% of his base. Emmer has been less successful in attracting the swings. Dayton is capturing about 50% of the moderates, Horner is about 30%, Emmer 20%.

Thus, here is my first calculation.

Dayton .8 X 35% = 28%. .50 X 25%= 13.75%. Dayton total= 40.5%
Emmer .8 X30% = 24%. .20 X 25%= 5% Emmer total= 29%
Horner .9 X 10%= 9% .30 X 25% =7.5% Horner total = 16.5%

However, this first calculation makes several assumptions. It assumes no undecided voters or that undecideds break in a pattern noted above. Second it assumes support for all of the three candidates is firm and that everyone will come to vote. I do not make this assumption. We know at least three additional things that correct these numbers.

First, turnout this year will be less than in 2008. In 2008 approximately 77% of the eligible population voted. Mark Ritchie estimates 60% turnout this year. I think 55-60% if realistic. This is 17-22 points less than 2008. Many of these not voting will be DFL leaning voters who came out for Obama. This means among likely voters, the smaller electorate this year will be more heavily GOP than two years ago.

Second, national polls and state polls reveal GOP voters more highly motivated than either the DFL or swings. Women (swings and part of the DFL base) are less motivated to vote compared to males. Young are less likely to vote than old (although old seem to favor Dayton). Support for Dayton is less firm, passionate, or motivated to come out and vote for him.

Third, as Election Day looms and it looks less likely that Horner can win, swings plagued by the spoiler fear (A vote for Horner is a vote for my worst or last choice) will abandon him. There is also a polarized electorate problem I have discussed. Some will opt not to vote, some wills shift to Dayton, a few to Emmer.

These three factors will produce a likely electorate more GOP than my initial numbers suggest. This is the issue of the likely voter. Correcting for these three realities is not a science, but an estimate or gut guess. I think Horner fades down to about 10-12% when a final count is done. He may even fade lower. Dayton picks up some Horner votes and the more GOP leaning electorate yields this as my estimate.

The Winner is . . .Dayton!
Dayton 46%
Emmer 43%
Horner 10%
Other 01%

I am guessing Dayton has about a 3% lead in the polls, it may be as high as 5%, depending on whether my initial guesses about the size of the bases, capture of the swings, and shape of the electorate are accurate.

I am not offering science here, but best estimates or guesses. Now let the voters decide.

As Minnesota Goes, So Goes the Nation? Not in 2010

The phrase used to be “As Maine goes, so goes the nation.” The origin and irony of the phrase was in the state’s reputation as a political bellwether for national presidential politics, culminating in 1936 when it supported Alf Landon over FDR for president.

Yet just the opposite seems to be true for Minnesota. It was the only state to go for Mondale in 1984 when the rest of the country boarded the Reagan landslide train. Minnesota has a reputation for third party politics–think of Floyd Olson and Jesse Ventura. It also has a progressive streak that included socialists in the 1920s and 30s, Hubert Humphrey, Walter Mondale, Eugene McCarthy, and Paul Wellstone. Minnesota seems to march to its own drummer. In 2010 that exceptionalism may lead to mark Dayton winning the governorship.

Minnesota: The Fargo Factor v. Lake Wobegon?
Minnesota has the Fargo factor (think the movie) with an endearing sense of traditionalism and Nordic rugged individualism. But there is a Lake Wobegon aspect where we do think all the children are above average. The reality of Minnesota is caught somewhere between these two pop culture images.

Explanations for the state’s political idiosyncrasy are varied. Some locate it in Minnesota’s political culture, but stating that tells us nothing. It is like saying there is something in the drinking water. Others contend that the Scandianian culture is an explanation. Perhaps true, but the state is more German than Nordic and the influx of immigrants from other parts of the world should have a bigger impact on politics than it has if this were true.

I describe Minnesota as a very religious state with a tradition of religious activism that expresses a dislike of corruption and a demand for reform and clean government. It is a liberal state with conservative pulls. It has a populist tradition, a commitment to equality, and a generally positive view of an activist government. Historically is has expressed a fear of accumulation of power in business, with government historically viewed to protect people from business. Some of this may be changing, but this is the core of Minnesota politically.


Explaining Minnesota’s Independent Streak
How do we explain Minnesota’s independent streak? The state has numerous groups and regions that compete and none of them are dominant. This means that the key to winning in Minnesota is by building alliances to forge coalitions. The process of coalition building has resulted in tight party competition, occasional third party support, and high voter turnout.

In addition, Minnesota has a long tradition of non-partisan and partisan elections. This combination of two types of elections produces an electorate that is not historically as committed to party voting as one might see in other states. For example, from 1913 to 1974 the Minnesota Legislature was non-partisan. Local races remain non-partisan, as is true with judicial races. Parties have and remain powerful forces in the state, but their allure is waning. No party–DFL, GOP, or GOP–commands 51% of the population. Today I think it is DFL 35%, GOP 30%, Independence 10%, and no party at 25%. The point here is that politics is competitive and the balance of power is in mobilizing the base but more importantly, in moving the swing voters to your side. Win the swings, win the state.

Minnesota v USA in 2010
Winning over the swings is not Einstein politics. This is real simple Politics 101. But it is often forgotten by many. The DFL for years lost control of the center which is why it has not won the governor’s race since 1986 and why in 1998 it lost the House. It was not until 2004 and 2006 that it learned to recapture the center and was rewarded with control of the House again. The same problem has plagued the national Democrats. Yet in 2008 it captured the center and the result was Obama’s victory along with strong congressional majorities.

Now the national Democrats have lost the center again, with the swings moving to the GOP this year. One can debate the reasons for this loss and whether Obama had alternative options with the progressives. Yet it is clear that in 2010 the Democrats have lost the swing voters, that jobs and opposition to taxes are major policy drivers, and that the GOP has the political narrative this year–it is “Change.” Sound familar?

All this should suggest a great year for the GOP in Minnesota and that Emmer is the next governor. But not necessarily so.

Tons of polls and surveys have been done this year. Many are awful. But some truths emerge. First, large majorities of Minnesotans recognize that taxes need to go up to address services. They have seen schools, roads, and bridges decay and now about 60% or so recognize a need for tax increases. Thus unlike nationally, the anti-tax message has limited appeal beyond a GOP base plus some swings.

Second, polls suggest that Dayton is capturing the bulk of the swing voters. Emmer is not getting many swings. Horner is getting them. Emmer is running base politics. By that, from the day he accepted his party nomination he declared he would run from the right and not from the center. Dumb move! He forgot the battle is from and for the center. He ran as and let the DFL paint him as a right-winger and he is paying the price. He is still in the race because Dayton has run a lackluster campaign and his supporters are not as excited or passionate about him as the Emmer voters are for their candidate. This explains Obama’s pep rally for Dayton over the weekend. Dayton needs his base–plus women and swings–to get excited and vote for him. If they do, Dayton bucks the national trend and wins.

Emmer may still win, but it is a battle. He needs his base to vote–and they will–he needs to pickup more swings–hard to see how–and he needs Dayton’s people to stay home on election day.

14 Days to Go

Fourteen days to go to election day. Where are we? Some quick random thoughts.



Horner, Star Tribune, and the Governor’s Race
Did Horner get a boost from Star Tribune and other newspaper endorsements? Not really.
There are several reasons for this. First, at least with the Star Tribune, everyone knew they were going to endorse him ever since the non-endorsement endorsement a few weeks ago. Thus, the impact of this new endorsement was muted. Second, readership of papers is down and their impact is less, especially in a multi-media environment. Third, swing voters, those who have not made up their minds, probably will not pay much attention to the endorsement. Liberals will not change their mind by the endorsement and the same is true of conservatives (DFL and GOP). Finally, the endorsement still does not overcome the spoiler issue. As I argued before, third party candidates such as Horner suffer from the “A Vote for Nader is for vote for my worst fear.” Horner still needs to show he can win and to do that he needs to show that one of the other two main candidates, most likely Emmer, cannot win. The endorsement failed to do that.

The biggest winner here of the Star Tribune endorsement is Dayton? Why? Polls already suggest that Dayton has a majority of the moderate or swing voters with Emmer capturing very few of them. Horner needs to pick them up to win (plus peel off partisans). Maybe the collective endorsements of all the papers pull some moderates from Dayton, but I think the real danger is that it pulls what few moderates are voting for Emmer away from him and to Horner. It may also pull more of the moderate GOP away from Emmer. Phrased differently, the endorsements do more to fragment the anti-Dayton vote.

As I see it now? Dayton still has a slight lead of about 5 points. However his base is less passionate about voting. His task is to motivate the base and swings to support him. Thus, Obama might make sense. Dayton has also shifted from talking taxes to jobs and education which plays well with swings and moderates.

Emmer has a smaller base and is behind. He has few swing or moderate voter support. His base is motivated to vote. He needs to deliver them (thus why Gingrich and Romney make sense) but he also needs to bring more moderates to his side. Bringing partisans such as Romney do little for that and thus the reason for new commercials seeking to moderate an image. It may be too late.

Finally, Horner needs to project the winner image and show another candidate cannot win. Paper endorsements and trotting out support from individuals such as Michael Ciresi help, but I do not know if they will be enough. Unfortunate for Horner is that we live in a poll-driven world. Unless he shows real growth or gain in the next poll numbers he may not get the momentum shift he needs for election day. Standing on your record or platform may not be enough to establish win-ability.

Bachmann and Clark: Shocked about Hypocrisy!
News has surfaced that Bachmann requested surplus money while denouncing it? News? Hardly. If hypocrisy were grounds to exclude people from public office the halls of Congress would be empty. No one should be shocked by Bachmann’s position, the voters of the district know her and her views. This is a $20 million race that Democrats could never win and which long ago ceased to be about issues. It is an ugly expense race where truth seems unimportant to who wins.

Eyewitness to History: The Minnesota Gubernatorial Debate at Hamline

On Saturday, October 9, Hamline University hosted a gubernatorial debate on campus in conjunction with Fox 9 news. I attended and observed the debate, giving me an opportunity to assess the candidates up close.

The Context

Coming into the debate, my sense is that Dayton had a slight lead of 3-5 points over Emmer, with Horner a distant third at around 12-15% support. The three candidates had some shared goals–avoid gaffes and motivate their bases–but they also had divergent objectives. Dayton has a lead, but his base is less motivated to vote this November. He especially needs to motivate women and the swing voters to turn out. If they do, he wins.

Emmer is behind slightly but his base–angry white males–are highly motivated to vote. Emmer also needs to win some swing voters to his side since I do not believe he can win simply by motivating his base, even if Dayton’s does not fully mobilize to vote.

Horner needed a knockout punch. He may have plateaued by capturing his base and a few swings, but he cannot rise much further unless he can convince voters that one of the other two candidates cannot win in November. Most probably, this means he needs to convince other GOPers that Emmer cannot win, thereby leading to a rush of voters from Emmer to him in fear that Dayton will win.

My analysis assumes at this point several things. First it assumes both Dayton and Emmer are holding their bases and that Dayton is doing better at capturing the swings than Emmer and Horner. In making this argument I am at odds with Larry Jacobs and what his MPR poll states. On Almanac I made these claims and Larry said his poll suggests that there are large defections from the bases of both Dayton and Horner, that swings are more in play for Horner than I think, and that in general the GOP is worried about holding on to its voters. He cites as evidence of the latter the Horner press conference with over a dozen former GOP state legislators endorsing him and the reaction that Tony Sutton had to this press conference.

With all due respect to Larry, I have already made clear why his poll is really flawed. Steve Schier has made parallel claims. I am unpersuaded that the poll accurately captures what the electorate and party alignment is in Minnesota and that means that the lead of Dayton’s is inflated in his poll. Larry’s poll is at odds with almost every other poll and it comes in conflict with recent Rasmussen polls showing both Dayton and Emmer holding 80% of their bases.

Finally, in many ways I do not think that the current GOP cares about other former legislators endorsing Horner. They represent an older GOP party replaced by a new more conservative one. Yes, they do not want to see them vote for Horner, but that is no longer their base. Sutton criticized their actions, but that is not a sign of panic.

About the only thing I agree with Larry and his poll is that it is difficult to determine who the likely voter is. Stacy Hecht well stated this problem on Almanac, with the other three of us (Schier, Jacobs, and me) concurring.

The Debate

This was the 23rd debate. In too many ways the candidates looked like they were going through the motions. Each had predictable answers to predictable questions, and each responded to one another the way you expected.

Each campaign had its groupies there and they applauded on cue. Fox 9 wanted a more contentious debate and encouraged candidates to cut off one another. They wanted theater. The candidates did not oblige, again seeming to prefer the predictable to the novel.

Dayton:

He seemed flat. He did not answer the questions directly and his style was weak. He did little to excite his base. He could have done more to link Emmer to Pawlenty and Palin to excite his base, but he did not. He also did not criticize the others very much and he did not do much to reach out to female voters or swings. Dayton did discuss education which is important to his base but the passion was not there.

His finest moment? Discussing why we need bullying legislation, he spoke of equality and same sex marriage. He also quoted James Madison on why government is needed here–men are not angels.” The nerd in me liked this.

Emmer:

He seemed on autopilot. The answer to everything was cut taxes, less government, and create more jobs. A variation of this was his constant protest that he was the only candidate who has put forth a balanced budget. No one but his base believes this. His answer to a student question about what he planned to do about the high cost of going to school? Schools needs to restructure and if we had more and better jobs then student debt would not be a problem! Hmm, tell that to anyone with huge students debts. Even a high salary does little to address the burden of high debt load.

His defining moment? He came out against new legislation to crack down on bullying motivated by anti-gay bias. He said we had too much government already and that it was up to parents teaching respect and giving teachers more authority to do what they need to do but cannot because of fear of lawsuits. Clearly Emmer was speaking to the base.

Horner:

He was clear with answers and specifics. As a communications specialist he knows how to frame answers. He did a good job distinguishing himself and pointing out he was not a DFLer or GOPer.

His finest moments? Two stand out. First, he gave specifics to what he would cut to balance the budget. He noted JOBZ and ethanol subsidies as two cuts. Also, when responding to Emmer, who said no to new anti-bullying laws because it was a private issue, Horner said when others get hurt it is a public matter.

And the Winner Is?

On style and substance (that is how he looked and in answering the questions) Horner won. However, he did not knock anyone out. Emmer was second, Dayton third. Emmer managed to say what his angry base wanted to hear, Dayton did not do much to excite the passion of his supporters.

Horner’s clock is still ticking but he needs major movement soon. Dayton needs to refocus in the last few weeks and appeal to suburban females to vote for him. Pitch commercials to them. He also has started linking Emmer to Pawlenty and needs to do more of that.

Emmer has his base excited but needs to pick up some moderates. Also, everyone is expecting him to do a meltdown like Hatch did in 2006. Maybe Horner, Dayton, or a third party add will do that. Emmer also has a Pawlenty problem in another way. Pawlenty is unpopular and does nothing for him but as governor he could assist in policy or other ways. However, Pawlenty is off on his Don Quixote-esque pursuit of the presidency and seems uninterested either in Emmer or Minnesota. However, that is another story for another blog.

Citizens United, Politics, and the Lessons of Target Corporation

The backlash against Target Corporation’s political contributions offers important lessons about the brave new world of politics ushered in by the Supreme Court decision Citizens United v. Federal Election Commission. The lessons range from corporate marketing and governance to accountability.

Citizens United was a triumph for conservatives who believed that there was not enough money in American politics and that corporations lacked an effective voice in it. The 5-4 majority in Citizens United ruled that the free speech rights of corporations were violated in banning them from making express advocacy independent expenditures.

The decision freed corporations to make direct expenditures from their treasuries to endorse or oppose candidates of their choosing. That is exactly what Target Corporation did in Minnesota.

Tom Emmer is the Republican gubernatorial anti-tax and anti-gay rights candidate. Minnesota Forward was a PAC formed in Minnesota after Citizens United and it collected corporate donations to run ads endorsing Emmer. Target contributed $150,000 to the PAC, ads for Emmer ran, and then the sky fell in for Target. Immediately employees, gay rights organizations, and Moveon.org criticized the contribution, asking how the company’s donation squared with Target’s commitment to gay rights and its policy on same sex couple benefits. Target CEO Gregg Steinhafel tried to massage the protest, stating the company only endorsed the candidate’s views on taxes, not gay rights issues. But the rationalization was too late, and Target has been unable to contain the damage. Why?

Unlike other Minnesota companies such as Polaris and Best Buy which also donated to Minnesota Forward, Target occupies a unique place. Originally the Dayton and then Dayton-Hudson Corporation, this company is locally incorporated and was family owned for years. The Daytons had a record of community support and philanthropy, still expressed in terms of the company donating 5% of its profits to schools. Self-consciously, Target has curried this socially responsible, good corporate citizen brand in juxtaposition to its rival Walmart. For many, Walmart is the evil empire and Target’s progressive image made it a favored retailer for many. Steinhafel forgot all of this when he made the political contribution.

The donation supported a candidate who stood contrary to the image Target has sought to cultivate for years. Steinhafel violated the number one rule of business–know your customers.

The deterrent to corporate political contributions after Citizens United was that retail businesses would be loath to act, for fear they would alienate half of their customers. Target should have remembered that. It should have remembered how it had consciously built its image and thought about how this political contribution impacted it. Clearly Target failed to do that.

The half-hearted apology that the contribution did not mean it supported Emmer’s views on gay rights demonstrated a naivete about marketing. When companies employ celebrity spokespersons, they hire the entire package and it is impossible to separate off one part of their life or views from the rest. Think of Tiger Woods. Corporations cannot insulate themselves from criticism by saying they endorse only part of a candidate–they are stuck with the entire package.

What Citizens United and the Target donation revealed is that corporate political activity merges politics and marketing. Support of political candidates and causes are marketing and imaging statements, and companies in the future now must think about how their political activity affects their brand. Steinhafel and Target should have known that. In Target’s case, the contribution was bad branding but for other companies–such as a gun company supporting a pro Second Amendment candidate–such an expenditure might be a smart move.

Steinhafel thus violated a second rule of business–confusing his own self-interest or views with that of the interest of the company. This tells us something about corporate governance. The real power of corporations rest not with shareholders but management, and most of the major misdeeds in corporations occur when management comes to substitute their interests for that of the shareholders and stakeholders they serve. Steinhafel’s choice raises questions about how decisions are made in companies, who speaks for corporations, and whose First Amendment rights were furthered by Citizens United–the shareholder or the management?

Finally, what Target and the supporters of Citizens United forgot was that over the last 25 years corporations are increasingly being held socially accountable for the choices they make. Target understood that with its branding, but seems unable to grasp that point now that it has entered partisan politics. The brave new world of Citizens United does mean that corporations can speak, but they will be held accountable by their customers and shareholders for the choices they make.

I Told You So: The Unallotment Decision Was Predictable

The Minnesota Supreme Court’s unallotment decision was predictable. As I argued in a June 16, 2009 MinnPost op-ed, several constitutional and statutory arguments suggested that if Governor Pawlenty used unallotment to balance the budget as he promised, a court would find his action illegal.
The governor did what he promised and the Court found it illegal. In a 4-3 ruling, with Chief Justice Magnuson writing the majority opinion and casting the deciding vote, he crafted a classic opinion that actually is the model of judicial restraint. In reaching its decision, Magnuson noted that the Court could have ruled on either statutory or constitutional grounds but that since it could handle the matter by statute, it would not address the constitutional issues.
Then the court read the statute, sought its best to interpret it, found it vague, and then deferred to traditional rules of statutory interpretation to argue that it could not have been the intent of the legislature when it drafted the unallotment law to give the governor broad authority to use this power to balance the budget. A balanced budget instead was a prerequisite to using this power when there were unanticipated shortfalls. Those grounds did not exist here, the governor loses on statutory grounds. But both Justices Page and Paul Anderson in separate concurrences suggested that the governor might also have acted unconstitutionally and that the entire unallotment statute may be void.
But the unallotment decision is also narrow in the sense that it legally only affected the Minnesota Supplemental Aid–Special Diet Program; a mere few million out of the $2.7 billion unallotted. The decision does contain language suggesting all of the unallotment is void, but it technically will take additional lawsuits to overturn the governor’s actions.
Two questions remain: What's next given the opinion and who are the winners and losers as a result of the case?
What is next is that the governor and the legislature should consider the entire $2.7 billion unallotment illegal and assume that they need to fix it before session ends in few weeks. They should have planned for this decision but no one did. Now with just weeks to go there is no plan in place. Look to see either the legislature ratify the unallotment or suggest other cuts. They might try to raise taxes but there is no way the governor will support that. Unless the legislature backs down, look to see a suicide special session this year. The only thing that might change this is if the Republicans fear electoral reprisal from voters if they support cuts and they vote with Democrats out of raw political survival. The chances of this are slim.
Winners and losers? Of course the plaintiffs and Galen Robinson of Mid-Minnesota Legal Assistance are the major winners. They get their money for the diet program. They also brought the case when the DFL chickened out last year and decided not to go to court. But if the legislature ratifies the unallotment, their actions may be for naught.
The second winner is Chief Justice Magnuson. A former law partner of the governor who appointed him to the bench, Magnuson has spent nearly his entire time fighting the governor’s budget cuts to the judiciary. Unlike the other three Pawlenty appointees to the Supreme Court who supported the governor (possibly with dreams of getting named chief justice), Magnuson’s announcement before the case that he was stepping down from the Court liberated him to follow what the law told him to do. The final decision was 4-3, with the Chief Justice casting the deciding vote (as I predicted it would be). His decision will be remembered as a courageous one, marked with independence and integrity.
Now the losers. Pawlenty of course lost legally and politically. His macho use of unallotment last year was a presidential campaign signal about how he would act decisively with Congress to balance the budget without taxes. Now that the action is illegal, it is harder to see this as helping his already moribund presidential momentum. But Pawlenty’s official statement reacting to the Court decision demonstrated a lack of grace. He condemned the decision and said he disagreed with the Court but would comply. He could not accept that he did anything wrong.
The second loser is Speaker Margaret Anderson-Kelliher and the DFL. She and they opted not to challenge the unallotment last year and now look foolish. Now with the Speaker the DFL convention-endorsed candidate for governor, she is faced with numerous problems. The last thing she wanted politically was for the Court to do what it did. Whatever she does with the budget she will get the blame. As Speaker she is the face of the legislature and will be tagged with the final results. The last two years the governor has outflanked her politically. It is unlikely before this decision Pawlenty and the Republicans were going to make life easy for her, now it will be even worse as they seek to embarrass and politically damage her.
The third loser is Tom Emmer, the Republican gubernatorial candidate. He filed a brief in this case supporting the governor that was effectively rejected, and if he is elected governor, he will have one less tool at his budget disposal.
Finally, other losers include law professors David Stras and Michael Paulsen of the University of Minnesota and St. Thomas law schools. They filed a brief in this case drawing upon federal constitutional principles to defend the governor. They might know the U.S. Constitution but they did not understand Minnesota constitutional law. Then there was Patrick Robben, the governor’s legal counsel. His performance at the oral arguments in the case was awful; answering questioning more supportive of the other side than of the governor. He did nothing to help his boss int this case.
But the biggest loser in all this are the citizens of Minnesota. The State’s budget is a mess due to the political ambitions of its elected officials.