Same-Sex Marriage and the Next DOMA Battle

The battle for state recognition of same-sex marriage has just begun.  While many might think that the Supreme Court decision in United States v. Windsor striking down section 3 of the Defense of Marriage Act (DOMA) represents the last judicial word on the issue, that is far from the case.  Instead, that decision has changed the legal debate and strategy regarding same-sex marriage, and it still involves DOMA.

            Imagine this likely scenario.  A same-sex couple is legally married in Minnesota and they decide to relocate to Florida, a state that does not presently recognize such marriages.  This couple then asks Florida to recognize their marriage with the intent of enjoying the state’s hundreds of statutory benefits regarding adoption, devising of property, or taxes that are available to married couples.  Is the State of Florida required to recognize this marriage?  There are powerful legal arguments to say yes, and they were only strengthened after the Windsor decision.

            Consider first what the Windsor case was about.  It involved a challenge to section 3 of DOMA. Passed in 1996, section 3 defined marriage at the federal level as exclusively a relationship between one man and one woman.  The practical effect was that all federal laws referring to marriage would use this definition.  This meant that any state which did recognize a same-sex marriage would not have such a union recognized under federal law.  In Windsor, at issue was a surviving member of legally married same-sex couple in Minnesota.  She had inherited property from her partner and sought to claim federal tax benefits as a couple and not as a single person. However, DOMA prevented that and she sued, claiming she was entitled to pay a lower tax as a surviving spouse.  Windsor challenged section 3 of DOMA as unconstitutional and the Supreme Court agreed.

            Writing for the Court, Justice Kennedy argued first that marriage remained a state issue.  By that, states generally had the authority under the Tenth Amendment to determine who could marry.  DOMA interfered with that state prerogative. What it did according to the Court was to single out a specific group for discrimination or special burden that state law sought to protect.  Such a singling out of a group–here same-sex married couples–was both a violation of the Fifth Amendment’s Equal Protection clause.

            This decision thus settled the issue of the constitutionality of section 3 of DOMA and federal recognition of state approved same-sex marriages.  Yet it did not address an equally important topic–Section 2 of DOMA and state recognition of same-sex marriages performed in other states. 

            Many have forgotten why DOMA was originally passed.  In the early 1990s a series of court decisions in Hawaii moved that state close to the recognition of same-sex marriage in that state.  Fearing that such a decision would then require other states to recognize these Hawaiian marriages, Congress enacted DOMA.  But the real heart of DOMA was not section 3 but section 3.  Section 2  declared: “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”  In effect, no state would have to recognize a same-sex marriage as valid in their state even if that couple was legally married in another state.  Thus, Florida would not have to recognize  as valid a Minnesota same-sex marriage in their state, even if that couple relocated to their state to live.

            Even before DOMA many claimed that section 2 was unconstitutional, The argument was that it violated Article IV, section one of the Constitution–otherwise known as the Full Faith and Credit clause.  That clause states: “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” Under the Articles of Confederation, the thirteen original states often refused to recognize legal acts from other states, as each often discriminated against one another.   In the 1942 in Williams v. North Carolina the Supreme Court declared the purpose of the Full Faith and Credit Clause was “to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation.”

            What does this clause practically mean?  The most obvious issue is marriage.  Couples legally married in one state do not have to get remarried in another state when they move into it.  Divorce proceedings and many other court judgments and laws have to be recognized too by other states.  This is where the challenge to section 2 of DOMA comes in.

            While Congress has authority to define how such full faith shall be proved, it is not clear that  it has the authority to limit the scope of the Full Faith and Credit clause.  It is doubtful that Congress could pass a law permitting states to refuse to recognize opposite-sex marriages performed in other states, or even to allow them to refuse to recognize racially-mixed or mixed-faith marriages.  The same principle applies to same-sex marriages.  While Justice Kennedy in Windsor did say that marriage was a state issue, the Full Faith and Credit clause can be read as an abrogation of that state prerogative in some instances.  Moreover, given the language of Windsor where the Court assailed the federal government under Section 3 for singling out same-sex couples for special burdens after a state sought to protect them, one can apply similar logic under the Fourteenth Amendment Equal Protection clause.  One can argue that states cannot single out same-sex couples for special burdens and treat them differently from opposite-sex couples.

            This argument becomes even stronger if one brings in three other constitutional rights or clause.  First, there is the right to interstate travel.  In Shapiro v. Thompson that individuals have a right to interstate travel and that individual states may not interfere with such a right.  Such a right the Court ruled is inherent in the Constitution although they chose to use the Due Process and Equal Protection clauses to support their claim.  Then in Saenz v. Roe the Supreme Court used the Privileges and Immunities clause of the  Fourteenth Amendment to again assert a right to interstate travel.  In both cases at issue were state laws imposing durational residency requirements  upon relocating individuals who wished to collect public assistance welfare benefits.  In both cases the Supreme Court invalidated such laws as burdening these rights.  Finally, one could also argue that the Commerce clause in implicated here.  Refusal by a state to recognize a same-sex marriage performed in another state creates an impediment to interstate commerce. It places a burden on same-sex couples wishing to relocate to another state for business or employment.

            So now think about the legal status of section 2 of DOMA when it comes to a legally married same-sex couple from Minnesota moving to Florida.  One can argue first that Congress lacked the authority under the Full Faith and Credit clause to enact section 2.  States are then precluded under this clause, as well under the Equal Protection clause from  refusing to recognize same-sex marriages performed elsewhere. These constitutional clauses, Supreme Court interpretation of them, and the reasoning in Windsor are enough to argue that states are not free to single out same-sex marriages from legal recognition if performed in another state.  This is perhaps the next legal battleground on this issue.

The Day After Reform–What Happens Now that Same-Sex Marriage is Legal in Minnesota?

    With Governor Dayton’s signature on Tuesday at 5 PM on Tuesday May 14, same-sex marriage will be signed into law.  The question though is what’s next, and what will change as a result of legalization of same-sex marriage?  Here is what we know based on Minnesota law and what has happened in the other 11 states that have already legalized same-sex marriage.

Nothing Changes
Don’t expect same-sex couples to be able to marry come Wednesday.  The law does not take effect on August, 1, the usual default date for legislation signed into law in Minnesota.

Expect some groups opposed to same-sex marriage to challenge the law in court, claiming either that it violates the First Amendment Free Exercise clause, the Minnesota Constitution’s Liberty of Conscience clause, or some other provision of the federal Constitution.  These challenges will fail.

Opponents of same-sex marriage will vow political reprisal and revenge against those who voted in favor.  For the most part, this revenge will not occur.  There is little evidence that votes for same-sex marriage have hurt legislators, although Republicans voting for it may be more vulnerable in party primaries.  Among Democrats, there are no more than 14 House members who are vulnerable in 2014 and they are so because of close elections in 2012.  Of those 14, perhaps ten might lose as a result of their vote, but 2014 elections are 18 months off and many other factors will affect the fate of these 10 House members.  The Senate in not up for election until 2016 and thus not affected by the vote in 2014.

The United States Supreme Court’s two decisions on same-sex marriage (DOMA and the California Prop 8) will have no impact on what happens in Minnesota, practically no matter what they decide.  If anything, legalization of same-sex marriage in Minnesota may mean that other states may recognize marriages performed here or that Minnesota will recognize same-sex marriages performed elsewhere.

Opposite-sex couples will continue to marry, have children, and get divorces at the same rate as they did before same-sex couples could get marred.

Couples will still have the option to have civil ceremonies or marriages performed in churches, temples, or synagogues, and religious officials will still have the option to refuse to perform ceremonies or marry people, just like they did before.

Legalization of same-sex marriage does not mean polygamy should be legalized or that soon (or at all) people will be able to wed animals, children, or that child molestation will increase.

Do not expect society or the state in Minnesota to degenerate into anarchy or immorality.

The federal and state constitution still protects freedom of religion.

Everything changes
Up to 10,000 same-sex couples will be eligible to marry in Minnesota with estimates that 30% will  do so within one year and 50% within five years. 

Same-sex couples from around the country will  visit or relocate to Minnesota to marry.

Same-sex couples will marry, adopt and raise children, and divorce.

The wedding, hospitality, and tourism industry will benefit from the right of same-sex couples to marry and added tax revenues from these activities will offset any costs to the state in terms of expenditures for benefits for same-sex couples.

Minnesota businesses may find it easier to recruit younger workers to the state because of the legalization of same-sex marriage.  Richard Florida and others note a positive connection between GLBT-friendly policies and economic development.

As a result of legalization in Minnesota, more people will support same-sex marriage (in opinions polls) by the 2014 elections than they do now.

Minnesota becomes the 12 state to allow for same-sex marriage, but it is unclear how many more states will legalize it short of court decisions.  California, New Jersey, Illinois, Oregon, and maybe Colorado may be the next states to act, but after that it is hard to see may other legislatures legalizing it.

Same-Sex Marriage and the Beginning and End of Minnesota Politics: A Tale of Four Circles

The best thing that could happen to the Republican Party of Minnesota (RPM) if not the national Republican Party,  is for same-sex  marriage to be legalized.  Its legalization would remove from the agenda one that the Republicans are losing on, and one that is continuing to alienate them from younger millennial voters and moderates.  Legalization of same-sex marriage would permit Republicans to move away from social issues and concentrate on their core economic and limited government message.
    Assuming Monday’s passage of same-sex marriage by the Minnesota Senate the state will have come full circle four ways.  The first circle to close is  Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971).  Minnesota is home to the first case in the nation adjudicating bans on same-sex marriage.  In Baker at issue was whether a state law lacking  an express statutory prohibition against same-sex marriages signaled  a legislative intent to authorize such marriages. The Minnesota Supreme Court declared not, contending furthermore than the ban on same-sex marriage did not violate the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution.  Legalization of same-sex marriage in Minnesota would thus overturn Baker, bringing to an end the first and original precedent standing against marriage equality.
    The second circle to close involves Congresswoman Michele Bachmann, Minnesota’s Defense of Marriage Act, and same-sex marriage.    Bachman’s political career is intertwined with opposition to same-sex marriage.  In 1997 the Minnesota legislature adopted Minn. Stat. § 517.01, Minnesota’s Defense of Marriage Act (DOMA) restricting marriage to that of couples of the opposite sex.  DOMA and Baker should have been enough to persuade social conservatives that same-sex marriage would not become the law of the land in Minnesota.  But it was not. 
    Bachmann’s 2000 run for the Minnesota Senate and successful defeat of a Republican moderate was premised as much upon opposition to gay rights and same-sex marriage as it was on her anti-tax positions.  Once elected she sponsored first in 2003 and then in 2005 state constitutional amendments to ban same-sex marriage.  Her fear?  A Minnesota Supreme Court would overturn Baker and DOMA.  Fear of  same-sex marriage played well as a springboard and theme in her 2006 election to Congress in a deeply conservative Catholic district.    Adoption of same-sex marriage in Minnesota, as well as the turning of the tide on the issue across the country, undercuts one of the defining themes of her political career.  She may continue to get elected as defending an embattled minority, but she will look increasingly anachronistic and shrill, making it even more difficult for her to win re-election in 2014.
    The third circle to close is on the RPM’s failed marriage amendment in 2012.  While Bachmann was no longer in the Minnesota legislature, her opposition to same-sex marriage lived on in a political party.  When the RPM was swept into control of the Minnesota Legislature in the 2010 elections the Republicans declared that the economy was job one.  Speakers Zellers pronounced it was all about jobs and not social issues.  Yet soon they strayed from that message.  Minnesota witnessed a budget gridlock and state shutdown and the defining theme of Republican control became their overreach on social issues, including the elections and marriage amendments.  Both went down to surprising defeats in 2012.
    The reasons for the crash of the marriage amendment are many.  It was about over-reach by Republicans and a misreading of their mandate (their mandate was actually more rooted in the 2010 opposition to Obama and the Democrats than in anything they offered).  It was about the cynicism  of some legislators saying that pushing the two amendments was a way to turn out their base in the 2012 elections, seeking to yet against rekindle the successful formula Karl Rove and the Republicans had used since 2004.  It was almost about the failure to see how the issue of same-sex marriage was a defining issue for the Millennials and how public opinion had shifted.  Republicans just did not see how the issue of same-sex marriage would counter-mobilize.
    Going into the 2013 legislative session many Democrats and Republicans argued that the 2012 results were not a mandate to support same-sex marriage but instead simple opposition to a constitutional amendment against it.  Some cautioned that pushing same-sex marriage would run the risk of DFL overreach, and initially Democratic leadership seemed to agree.  But others contended that were it not for the issue of same-sex marriage the Democrats would not have won in 2012 and therefore they had to deliver on the issue less than alienate their base.  The latter theory prevailed.  But it did so in a self-fulfilling way.  The momentum to oppose the marriage amendment was quickly turned around to support for same-sex marriage and quietly and slowly support for its legalization  was built.  Thus, the third circle–from a failed marriage amendment to legalization of same-sex marriage–also closes.
    The last circle is the re-redefining the RPM. The DFL wins on this issue, but potentially not as big as the RPM could.  DFLers were expected to push this issue and they delivered.  That is good for them.  But with the legalization of same-sex marriage the GOP loses a thorn it its side.  This issue drove many away from their side.  They had lost an entire generation of young people because of this issue.  Take same-sex marriage off the issue and it opens up new possibilities for the RPM to redefine a base that is old.  Of course the real danger for Republicans is that the social conservatives will seek retribution in the 2014 primaries and conventions, but what are they really able to accomplish?  They can destroy the party with unproductive infighting, or they too can move on.  For Republicans who voted to legalize same-sex marriage, if they can survive intraparty fights, they may emerge as the new voice of a redefined  GOP in a post-same-sex marriage world that focuses more on economics and small government than social issues.  This is where the party was a generation ago when the Arnie Carlsons and David Durenbergers were the face of the RPM.

Thoughts on the Recent Star Tribune Poll on Same-Sex Marriage

In a February 25-27, Star Tribune poll that was reported on March 6, “Fifty-three percent of Minnesotans say the state statute banning same-sex unions should stand. Only 38 percent say legislators should overturn the law this year, while 9 percent are undecided.”  The is poll has generated significant discussion, with opponents of same-sex marriage contending that its results validate their argument that the rejection of the marriage amendment last fall does not translate into support for same-sex marriage in Minnesota.  Supporters of same-sex marriage contend that the poll was flawed, pointing to the language or wording of the questions.

However, there is a different issue here–How accurate was the poll?  In the last few years the Star Tribune polls have been way off, such as predicting Dayton to win big over Emmer in 2010.  Yet at the same time in 2012 the last Star Tribune poll was about accurate in predicting the Rick Nolan and marriage amendment results.  So what should we think about this poll?

The paper reports that the survey included 800 respondents and had a margin of error of +/- 3.5 percent.  But additionally the poll also had 80% of respondents coming from landline and 20% cell phone, and the partisan split was Democrats 35%, Republicans 27%, Independents/Other 30%.

Consider first the landline/cell phone issue.  The best estimates now are that close to 40% of Minnesotans are cellphone exclusive or primary users.  Cellphone exclusive users tend to be younger, landline older, but as cell phone use grows, this trend decreases.  Why is this breakdown important?  The best evidence is that among those age 30 or younger, over 70% favor same-sex marriages.  Thus, if the Star Tribune only had 20% cell phone users–less than half of what the actual usage is in Minnesota–then it potentially under-countered support for same-sex marriage in the state.  This means that one could potentially adjust the 53/38 split on the issue by 6 or so points.  By my estimate, a survey of 40% cell phone users might change the poll results to 47% wishing to continue to support a ban on same-sex marriage while 44% wishing to repeal the ban.  Suddenly the poll looks tighter and within the margin of error.

Yet the partisan breakdown is interesting.  It lists 35% DFL, 27% GOP and 30% Independent/other.  Compare this to the 2012 exit poll listing 39% DFL, 31% Republican, and 30% Independent/ other.  The Star Tribune poll perhaps slightly underpolls Democrats but at 35% I would argue that this is close to where DFL support is in the state.  However, at 27%, the poll is lower than the 2012 exit poll and below what I think is an accurate read on Republican identification in the state.  I put it at around 31-32%–about where the 2012 exit poll locates it. 

The partisan breakdown may perhaps both undercount DFL and GOP voters in the state.  With the exception of those under age 30, partisanship is a good predictor support for or against same-sex marriage.  It is possible that the poll, were it to adjust for partisanship, could yield even two or three more points either way for maintaining or repealing than ban.  Thus, one scenario might mean that  up to 47% might support repealing the ban (adding this correct to my other correction), or  conversely, we are again back to about 50% supportive of keeping the ban in place.  It is just too difficult to make predictions here.

However, there are three bottom line points I want to make here.  First, no one single poll tells the story about public opinion on an issue.  Second, methodology matters and the mix of cell phone users and partisans can impact the accuracy of the poll.  That is why nerds like me read  the footnotes first. Third, the Star Tribune poll may not accurately reflect where the public is on same-sex marriage and that it is possible, but not certain, that the real sense of public opinion may be closer than the poll suggests once margins of error, cell phone usage, and partisanship are factored in.

March 15–Day of Decision for Cautious Minnesota Democrats

By March 15, we will  have a better idea of what Minnesota Democrats in the legislature are made of.  But if early indications are correct, timidity, cautious, and maybe disorganized are the words that best describe the DFL majority approach to governing this year.
    First, why is March 15, so important?  This is the first committee deadline at the state legislature.  Every year the legislature agrees to deadlines for legislation.   These deadlines are referred to a committee deadlines.  For a bill to have legs or remain viable it must pass some committee in its house of origin by a certain date.  If it does not, the bill is presumed dead and theoretically it may not be taken up again.  This year the first committee deadline is March 15, for policy bills.  Thus a bill introduced in the House of Representatives must pass a committee by March 15, for it to live another day. 
    The second critical deadline is March 22.  For any bill that passed in one chamber by March 15, its companion bill in the other body must pass a committee by March 22.  Finally, March 29, is a third deadline for major appropriation and finance bills.  These deadlines do not apply to bonding, budget, and tax bills.
    What all this means is that expect to see by March 15, votes on critical issues that include guns, same-sex marriage, election reform, and a host of other issues that the DFL majorities have bee holding hearings on for the last several weeks.  What committees do with those issues in next several days will be the clearest sign so far regarding how the DFL is interpreting the 2012 elections.
    But one does not really need to wait until March 15; instead, the DFL is proving to be timid, cautious, and inept at governing and it really seems to have defined its mandate from last year as more rejection of the GOP for over-reach that a call for boldness and change.  Just consider a few examples.
    Guns.  The DFL seem all hot and bothered to legislate on guns with proposals for universal background checks and bans on assault weapons placed on the agenda.  Yet soon the assault weapon was pulled and then this last week Representative Paymar’s bill for background checks was effectively made DOA with an NRA-sponsored one that commanded 74 sponsors.  The bill follows the NRA line of targeting those with mental illness as the cause of gun violence.  Maybe it will pass, but anything that does pass will largely be ineffective or fail to address the multi faceted problems  of guns and violence in Minnesota.
    Reproductive Rights.  Perhaps the biggest disappointment this past week was a 71-58 vote in the House to ban insurance coverage for abortion for women who secure their health care coverage  under the Exchanges being set up in Minnesota pursuant to the Affordable Care Act.   Even DFLers supported this bill.  For the tens if not hundreds of thousands of women in Minnesota who will get their health care coverage through this bill it means that they will not be able to exercise their reproductive rights unless they have their own money.  This limit may very well be unconstitutional  under the Minnesota Constitution.  But regardless of the constitutionality, this shows a DFL party hardly united and supportive of women’s rights.
    Same-sex marriage.  Legalizing same-sex marriage portended to be the hot button issue of the 2013 session that would vex the DFL.   Was the demise of the Republicans last November due to overreach on the social issues and the constitutional amendments?  The DFL seems to have accepted that view and has moved very cautious on same-sex marriage.  It was not clear that the majority wanted to move on this issue and Dayton’s tepid stance on the issue–I will sign the bill if it reaches my desk–is hardly a major legislative push on the topic. 
    But now to complicate the issue a Star Tribune poll on same-sex marriage suggests that a  majority opposes legalizing it.  The poll may be flawed but regardless of that, it adds support to DFL inaction on the issues.
    Election reform.  Right from the beginning the DFL seems to be pursuing election reform issues that really will not make much difference.  It is concentrated its efforts on voting reform.  Yes,  changing absentee voting to early voting is not a bad idea but largely two major recounts in this state have shown that voting is not a major issue.   However, even with this issue the House Elections Committee seems to puttering around.  The biggest problems are in the areas of lobbyist reform, legislature disclosure, revolving door,  and unlimited soft money contributions to parties and the caucuses.  There is no movement let alone bills on this topic.  The response by the legislature?  Some legislators and the governor want to raise contributions to candidates–hardly a reform and instead more of a bill of convenience for them.
    Taxes.  Governor Dayton’s Minnesota Miracle round two is dead.  Efforts to extend sales taxes to services and clothing and services are dead as the governor has withdrawn support for both.  The misfire on taxes best describes how timid and inept the DFL politics seems to be this session.
    The tax proposals were dead even before the governor nixed them.  While the economic theory behind taxes services is good, the governor played the politics all wrong.  He never brought the DFL in from the start to get them to buy into the tax reform and it was Tom Horner and not Dayton who had originally proposed sales tax reform.  Dayton was pushing an idea he did not prepare his party for and he also pushed ideas that had significant and powerful lobbyist and special opposition to.  There was no way the DFL was going to support an issue opposed by major interests that fund their party, caucus, and candidates.
    Moreover, Dayton forgot that the DFL has a two year term and the Senate four.  House DFLers on taxes and a range of issues have very different interests in moving bills on these topics.  They will seen the voters sooner.  In addition, the DFL is still very much a coalitional party with those from the urban cores, suburbs, and Iron Range having very different interests.  Dayton who was so smart as a gubernatorial candidate in bringing these different interests together has fallen largely flat in doing that legislatively.  Finally, this is the same DFL that was consistently out-foxed politically by Governor Pawlenty–they were unable then to use their majorities effectively and the same appears true now.
    I remember my hardcore DFL friends telling me over a year ago that Dayton and the DFL  were biding their time for the second two years of the governor.  Their theory was that with the GOP out and the DFL in real change would happen.  I am still waiting.

After the revolution? Recommendations for the Minnesota DFL

Note:  This blog originally appeared in Politics in Minnesota on November 15, 2012.  Please consider subscribing to that publication for news on state politics.

You say you want a revolution?  Well it was not quite that, but November 6, gave Democrats control of the Minnesota legislature and governorship for the first time since 1990.  In fact they occupy all the constitutional offices. Dayton can move his agenda and the DFL can push its priorities.  But less one think that it is now Christmas time for the DFL, there should be some caution in the moves that the Democrats take.
    Yes, the DFL should move an agenda that is Democrat.  Single-payer health insurance, legalizing single-sex marriage,  and commitments to education should guide what the DFL do.  But the political revolution is less than meets the eye.  It is less a mandate for the DFL than it was a rejection of the Republicans.  Republicans overreached.  Kurt Zellers and the Republicans promised that it would simply be jobs and the economy and they failed.  They failed first to get the state’s fiscal house in order.  Yes Republicans claim they balanced the state budget without taxes increases but that is wrong. To “balance” the budget they borrowed approximately  two billion dollars from K-12 and another $700 million from the tobacco endowment.  All this was one time revenue that must be repaid.  The budget deal did nothing to solve a structural deficit problem and the State walks into the 2013 with a yet to be determined real deficit of several billion dollars. Moreover, the balance they claim came with a government shutdown and a loss of the state’s triple A rating.
    But beyond failing at jobs and the economy, the Republicans overreached.  They debated social issues and placed a Marriage Amendment on the ballot.  They sought to rig elections  in the future with a voter Id amendment.  They also debated amendments on abortion, right-work laws similar to those enacted in Wisconsin, and taxes.  The Republicans, hungry for power, saw their legislative majorities as the opportunity to pander to every one of their constituencies and enact every crackpot idea their supporters had.  They foolishly thought 2010 was a mandate when it was simply a rejection of Democrats.  The Republicans sought to take over the state for their own interest, not to govern or lead it for all of us.  And they paid the price on November 6.  Everyone can see this except for the outgoing Republican leadership who are still in denial about the election and their bad performance.
    The Democrats need to avoid the same mistake. They need to lead and govern and not pander.  They too will have pent up demand for many groups wanting it to be their turn now.  The first advice is that Democrats must prove that they can be trusted with the taxpayer’s money.  They must show they are better at handling the state’s finances and economy than were the Republicans.  Given the last biennium, this is a low bar.  But this is the time for the DFL to do the budget right, make the tough choices, and really clean up the budget without any shifts or gimmicks that have been the norm for over a decade.  What might this include?
    The first order of business is developing a honest budget process.  Repeal the foolish 2002 law that counts inflation for the purposes of revenue but not obligations.  Additionally, ban shifts and other short term or one time revenue fixes.  These gimmicks hide the real structural deficit in Minnesota which is probably in excess of $4 billion.   Part of creating a honest budget process may go so far as completely reforming it from scratch.  Change the timing when the fiscal forecasts are issued so that budget work can start sooner. Set earlier committee deadlines or fiscal targets.  Follow the practice of Wisconsin and create a joint legislative committee to do the budget.  Or even change the budget from even to odd years to give legislators one year to learn their job before doing the budget.  Right now we have too many rookies doing a major fiscal job in ignorance.
    But other budget fixes could also include creating an automatic continuing resolution that keeps the current budget in place if no agreement is reached.  This is what they do in Wisconsin and it will avert future government shutdowns.  But reform to the governor’s unallotment authority is also needed to prevent future power grabs as seen under Pawlenty. Fiscal reform also means paying back the money to K-12 and on the tobacco endowment.  If the Democrats can do all this, they have accomplished a lot.
    But all this structural reform requires real budget choices too, while at the same time advancing DFL priorities that serve the interests of Minnesota. Governor  Rudy Perpich got it right when he said it wanted Minnesota to be the brainpower state.  He wanted Minnesotans to be the best educated state in the country.  There are powerful correlations between education and economic development.  The single best investment a state can make is in education.  Thus, repaying money owed to K-12 makes sense, but it is not a blank check.  Minnesota has horrible racial disparities in terms of graduation and learning outcomes.  The racial disparity overlaps with class and poverty.  Better education is not simply about class size, it is making sure that students come to school prepared to learn.  This means healthy, clothed, and well-fed.  Attend to the social service side of education.  Attend also to funding early-childhood education and give students the head start they need.
    But do not ignore workforce training for adults.  The State needs better partnerships with business and higher education and community colleges to make it affordable for people already in the workforce to get new or additional training. Here is where adjustments to the Minnesota tax code make sense.
    Minnesota also has an aging infrastructure.  We already wasted money on a Vikings stadium that could have been better spent on roads and bridges.  Do bonding to alleviate the increased congestion in the Twin Cities making commutes increasingly time consuming and commerce difficult.  But bonding to improve the internet infrastructure in greater Minnesota is also essential.  Level the playing field between brick businesses in Minnesota and Internet businesses by passing the Amazon.com bill that was debated last session.
    What else should the DFL consider? It is inevitable that the wealth should pay more in taxes to fund the state.  There is little empirical evidence that such taxes will hurt or deter job growth, and a lot of evidence that they are in the best position to help foot the bill for many amenities from which they benefit.  The DFL should also move forward to fully implement the Affordable Care Act and perhaps even other reforms to provide more health care for all in Minnesota. 
    The advice for Democrats is thus simple: Do not confuse Republican rejection with Democrat mandate.  Don’t overreach, attend to the economy and budget first, remember your principles, and use them to build a foundation for other changes once broad support has emerged.

Now What? Legalizing Same-Sex Marriage in Minnesota

    The Marriage amendment was defeated and Democrats took control of both houses of the Minnesota legislature and also control all the executive branch constitutional offices.  Advocates of same-sex marriage say the time is now and that the DFL should not simply repeal the Minnesota  Defense of Marriage Act (DOMA) but move directly to legalize same-sex marriage.  Should that be at the top of DFL agenda come January?  Reasons bode in favor and against this choice.

The cause is worthy.  This is a major civil rights issue not a political question.  As Vice President Dick Cheney said:  “Freedom means freedom for everyone.”  It is wrong and impossible to say to one group: “Wait, Wait, the time is not right.”  But the fact is, the next move on same-sex marriage in Minnesota may be more complex.

Strike while the iron is hot and the momentum strong, according to GLBT activists.  Momentum is important.  It might also be that the time to act is now, that this is an issue that is the right thing to do even if it means losing the majority in the House in two years.  Lyndon Johnson signed the 1964 Civil Rights bill fully cognizant, as he said, that it would cost the Democrats the South.  He signed it and it did.  Maybe the DFL should demonstrate the same courage.  That is a reasonable position to take and maybe worth it.

But voter rejection of the Marriage Amendment does not necessarily mean majority support for same-sex marriage.  Lots of people voted against the amendment for lots of reasons and not all for the reason that they supported the rights of same-sex couples to marry.  Some thought the amendment route was wrong or that it was not needed because of DOMA and a court decision in Minnesota making it illegal for same-sex couples to marry. Yes it is the case that the right to marry should not be contingent upon majority assent. But it is not clear the public supports this next step yet.  It is also not clear the DFL have the votes to secure legalization.  It is also the case that election of a DFL majority in the legislature was more of a rejection of the Republicans than support for the Democrats.  Cautious minds might bode against this strategy for fear of backlash or overreach.

But even if the votes are not there now, begin the battle.  Introduce the legislation and work on public opinion.  So many times the rule at the capitol is that laws do not pass the first year.  Again a reasonable strategy.

So what should the DFL do?   There are four options.

Option one is seek GOP support for legalization and only pursue with their support.  The GOP nationally and in MN are in bad shape, out of touch demographically and  way behind the times in support from young people because of gay rights and same-sex marriage.  Follow the path of New York State and move for bipartisan support.  Let Republicans join in sponsoring the bill.

Option two is to legalize same-sex marriage in all but name.  Pass domestic partner legislation regardless of sexual orientation or marital status.  This is not marriage rights but it grants benefits  to couples even if they choose not to marry.  This approach might be more acceptable to many Republicans, but not necessarily to marriage equality advocates.  This is a half-way step that  perhaps builds momentum for full marriage equality.  Conversely, for some this is government getting o ut of the marriage game altogether and maybe that is a viable route.

Option three is wait for the US Supreme Court.  It will been soon–perhaps sooner than many think–that it will strike down bans on same-sex marriage under the US Constitution.  I have argued for two years that Justice Kennedy will do that in a 5-4 vote before he leaves the Court.  Or maybe he or another conservative justice will retire under Obama’s presidency and provide the fifth vote for this.

Option four is do nothing.  This sounds cautious but Obama paid a price with young people in not moving vigorously on gay rights.  If the DFL does nothing it too risks backlash within its own party and among supporters.

All four options carry risks and the DFL cannot avoid making a choice.

Final thoughts on the Amendments:  Supports of the two constitutional amendments got everything they wanted but still lost.  They said they wanted the people to decide and they did.  They got their preferred wording (title and description)  on the Amendments and they lost.  Now the claim is that  there were lies and disinformation by opponents.   The reality is that they lost in the marketplace of ideas.

Announcement:  Since 1999 I have been a professor at Hamline University in the School of Business teaching graduate students.  I am pleased to announce that beginning in the fall 2013 I will be moving to the Hamline University Department of Political Science where I will be again teaching undergraduate students.  I have enjoyed my time in the School  of Business but it will be exciting to be back in political science working with undergraduates again.

Election 2012: Politics in the Age of Division (And final predictions)

    Note:  This blog is based on my November 2, 2012 talk to the Minneapolis Rotary Club.  I have spoken to them many times in the past and they have always been a warm and gracious club to address.

     The polls perhaps say it all.  We have a closely divided race nationally for the presidential race.  In fact, go back six months ago and Obama and Romney were essentially tied at about the same place they are now.  Except for one month between the Democrat National Convention and a period after the first debate, the polls have been stable, revealing a stable yet clearly split electorate.
    I see other signs of division in the scores of individuals who come up to me and express fear that the country faces ruin if Obama is elected, or is it Romney?  The political ads make it seem like the end of the world or Armageddon is near. Facebook postings seem almost like rants and raves and if you are like me, I have seen one too many posts about politics or candidates that border on the lunatic, referencing or posting information whose veracity is at best questionable.
    People ask me if this is the most divided politics has ever been. No, think Civil War.  Additionally, the 19th century was meaner.  We often look at the past through halcyonic or rose-colored glasses thinking the past was more kind and gentle than it is now.   But despite that, politics does seem more divided, nasty and conflicted than in recent memory. Why?  Several factors point to the divide that we see this year and this division has implications for the election.

The transformation of American party politics.  The is some truth about a red and blue America and it starts with the change in traditional party structures.  American political parties used to be more coalitional and regional than they are now.  Parties were more likely to be mixed ideologically.  When I grew up in New in the 1960s my governor was Republican Nelson Rockefeller.  One Senator was Republican Jacob Javits, the other was Democrat Bobby Kennedy.  The lost liberal?  Javits.  The most conservative, Kennedy. 
    The Democrat and Republican parties had liberals, moderates, and conservatives in them.  Minnesota once had a pro-choice republican Governor in Arne Carlson and a pro-life DFL governor in Rudy Perpich.  Neither of those individuals could secure their party nomination today.   The two main parties in Minnesota and across the country have become more ideological and national, much more like European style political parties.  We see a disappearance of moderates in the two parties.  There is a rise of straight party line votes in the Congress, and a rise of straight party line votes in the MN legislature.  Both parties have moved to the right, the Republicans more so.  They have moved from the party of Eisenhower to that of Rockefeller, Nixon, Reagan, and now the Tea Party.  There are no more Hubert Humphreys and Paul Wellstones in the Democrat Party.  As a result, the two parties are further to the right and further apart than ever.

Party Membership and generational divide.  The Democrats and Republicans are a tale of two parties The GOP are older, whiter, male, more Christian, and part of the Silent generation along with some older Boomers.  They vote against gay marriage, abortion, immigration, and favor smaller government.  The Democrats are younger, more female,  less white, less Christian, and they represent the  Millennials and Gen Xers. They favor gay rights, choice, immigration and diversity, and more government.  The two parties represent two generations and world views, and party of the intensity right now is a demographic contest witnessing the passing of power from one generation to another.  It also represents a racial polarization the greatest since 1988, and an identity shift as America moves from a White Christian nation to something else.


Political Geography.  Politics and geography now overlay and intersect.  It is not just red and blue states but red and blue neighborhoods.   There is a political sorting of living space by geography.  We increasingly have Democrat and Republican neighborhoods.  We are divided politically by rural and urban.  The result is a decline in the number of real marginal or swing districts and such a problem is only accentuated by redistricting in some states (or conversely, even the best redistricting cannot overcome the political sorting we are experiencing).  There are only 50 or so competitive seats in Congress, and 25 or so competitive seats in MN Legislature.  The remainder are certainties for either of the two major parties.  Partisan districts create less incentive to compromise, reinforcing  polarization.

Evidence of political polarization by public.   The public is polarized.  In Minnesota support for the marriage and elections amendments divides almost perfectly by party.  Two sides have their own versions of truth.  But the division goes to our consumption habits .  Each party has its own network to watch–MSNBC and Fox News–giving each side its own version of the truth.  The produces we consume reveal our political preferences.  Our geography reveal our political preferences.  Thus, combine target marketing data, GPS, and politics and we see in 2012 the use of very specific marketing to seel candidates. 

Implications for 2012
Overall, the polarization, if not as great or significant as the Civil War, is still significant.  How does it affect the 2012 presidential?  First, the choice of Obama and Romney is not great and neither seems to have a clue about what to do with the economy.  But the polarization makes it impossible for third party candidates such as Gary Johnson and Jill Stein to gain any attention or momentum.  Fear of voting for one’s hopes and it electing one’s last choice dooms alternative politics.

Having said that, for months the race for the presidency was simply a set of three numbers: 10/10/270.  Ten percent of the voters (the undecideds)  in ten states would determine who gets 270 electoral votes and win the presidency.  Now the race is 5/7/270.  Five percent of the voters in seven states will decide who wins the presidency.

The original ten swing states were:
Colorado
Florida
Iowa
Nevada
New Hampshire
North Carolina
Ohio
Pennsylvania
Virginia
Wisconsin

In those 10 swing states, the Associated Press has argued that it is up to about 106 battle ground counties. How many voters are we talking about that might influence the election of president?
Assume 5% undecided in those ten swing states and the number is 1,835,599 voters.
Assume 8% undecided voters in those ten swing states and the number is 2,936,958 voters.

Now assume North Carolina and Nevada are no longer swinging, we have eight swing states.  In the remaining swing states on average 4.9% undecided according to polls in Real Clear Politics on October 25.  My estimate then is that between 1.500,000 and 1.835.599 voters will decide the election, with the focus being on about 11 counties across the country where the battles are really taking place.  These counties in my estimate are:

Arapahoe County, Colorado
Bremer County, Iowa (Waverly)
Chester County, PA  (some have told me this is not swinging this year, though).
Hamilton County, Ohio
Hillsborough County, NH
Hillsborough County, FL (Tampa)
Jefferson County, Colorado
Pinellas County, FL
Prince William County, Virginia
Racine County, WI
Winnebago County, WI

Finally, now assume in 2012 that the estimated eligible voter population is 222,000,000.  In 2010 it was 217,000,000, and in 2008 it was approximately 212,000,000 with about a 63% (131 million voters) turnout.  Assume again about 63% voter turnout this year due to high interest and intensity in the race.   The average of 1.500,000 and 1.835.599 voters (total number of undeceived swing voters in the swing states) is approximately 1,650,000.  Divide that number by the estimated eligible voting population in 2012 (222,000,000) and this means that approximately 0.74% of the eligible voting population will decide the presidential election.

In fact, if I wanted to pick one county where the race for the presidency comes down to, it is look to what happens in Hamilton County, Ohio.  Whoever wins it wins Ohio and then the presidency.  This shows the polarization we face in this country when such a small number decides who wins.

Final Predictions
Presidency:  Back in March I said Obama would win with 272 electoral votes. He still wins but with 290-305 electoral votes.  He also will get around 50.5% of the popular vote.

US Senate: Democrats retain control with 51 seats.
US House: Republicans retain control but with a slightly narrower margin.

Minnesota Congressional Delegation: No change.  Nolan and Cravaack is too close to call but a slight nod to the incumbent.

Minnesota House: DFL or GOP control by one seat for either and a real chance of 67-67.
Minnesota Senate: Republicans retain close control.

Marriage and Elections Amendments: Both pass.

Amending the Minnesota Constitution: Reading the Polls

Public opinion polls are perplexing.  The same is true nationally as in Minnesota and the polling on the state’s two constitutional amendments demonstrate some of the difficulties in doing survey research and public opinion polls these days.
On Sunday the Star Tribune released survey results on the two constitutional amendments.  It found that with the Marriage Amendment (to further ban same-sex marriage even more than it is banned in the state by Court decision and law) support for it was at 49%, opposed at 47%, and 4% undecided.  For the Elections Amendment to require photo ID at the ballot (and with that effectively to sharply limited if not eliminate election day registration), support for it was a 52%, opposition 44%, and undecided at 4%.

What are we to make of these polls?  Are the numbers accurate?  Perhaps, but the Star Tribune poll is in need of some qualifications and corrections.

First, look at the poll.  It has a margin of error of 3.5%.  In itself this margin of error is not bad, but the poll also indicates that for subgroups such as party affiliation the margins of error are larger than that.   Again, no surprise that a poll of only 800 respondents would have more error in tabulating results for subgroups.  But what is more interesting is the partisan breakdown of the poll-- 41 percent Democrat, 28 percent Republican, and 31 percent independent or other–and the landline versus cellphone population–80% versus 20%.  But of these numbers could skew the survey in critical ways.

Consider first partisan affiliation.  The survey may have overpolled Democrats and undepolled Republicans.  After the 2008 elections (a great year for Democrats), my estimate was that the state was about 39% DFL, 33% GOP, 10% IP (Independent Party), and 18% other.  Following the 2010 election (a great year for Republicans), my estimate was 38% DFL, 34% GOP, 12% IP, and 16% other.  It seems hardly likely that DFL affiliation in the state today has risen to a level exceeding the 2008 estimates, even considering disapproval with the Republican legislature and Congress.  Similarly, after 2010, it is unlikely that GOP support has dropped to 28%.  More likely numbers are something along the lines of 38% DFL, 34% GOP, 11% IP, and 15% other. 

Why is the partisan adjustment important?  The poll suggests significant partisan polarization for both amendments, with 73% of DFLers opposing the marriage amendment and 71% of GOPers supporting.  Similar partisan cleavages also exist with the Elections Amendment.  If this is true, take the marriage Amendment support at 49% and opposition at 47%.  If DFLers are overpolled by 3% and GOP underpolled by 6%, and if about 3/4 of each party votes in a partisan way, I would subtract  about 2.25% from opposition (3% x .75) and add 4.5% to support (6% x .75) and the new numbers are 53.5% in support and 44.75% against.  This is beyond margin or error.

If one applies the correction to the Elections Amendment there is about an 80% DFL opposition to it and a similar 80% GOP support for it.  Then the polls suggest approximately 56.8% support it and 41.6% oppose.

Now there is a second adjustment to the poll–landline versus cell phone users.  The poll had 80% landline.  This overpolls this type of user.  Some estimates are that as many as 40% of the population, especially those who are younger, rely exclusively on cell phones.  Older voters are more likely to support the Marriage and Elections Amendment.  Again, there seems to be an age divide with about 60%of older voters supporting the Marriage Amendment and about 60% of younger opposed to it.  This skewing needs to be corrected but there are two complications here.  First, younger people are less likely to vote than older people.  Thus, even if the survey overpolled elderly,  the results also have to consider undervoting by younger voters.  Any serious correction to the skewing by landline and then by failing to correct for younger people not voting leads to concerns about the survey accuracy, even if it claims to have surveyed likely voter.  At the least landline or older voters were oversurveyed by perhaps 10% and younger voters not voting may affect the survey  by several percent.  Nationally, the gap between elderly and younger voters is as high as 10%, in Minnesota it is much less but still significant.  I have no good tool at this time to correct for these two variables, but think they might about cancel one another out.  My intuition though is to contend that younger cellphone users who will actually vote are underpolled by at least an overall 2%.  If that is true, call it 51.5% of the Marriage Amendment and 46.75% against.  For the Elections Amendment, now call it 54.8% in support, 43.6% against.

Two other corrections now need to be made.  Support for anti-gay initiatives is underpolled compare d to final election returns.  Why? People lies to pollsters.  In the 2008 California Prop 8 battle, the last survey revealed 47% supporting repeal, with the final election results being 52.24% This is a difference of 5.24%.  In Maine in 2009 the last poll prior to repealing its gay marriage legislation yielded an underpolling of 4.9% comparted to the final election results. Yes public opinion might shift, but my estimate is that polls underestimate support for anti-gay rights legislation by about 5%.
Thus, 55.5% in favor and about 42.% opposed to the Amendment.  I am assuming that most of the 4% undecided in the poll vote yes.

However, there is also an issue about constitutional amendment voting in Minnesota.  If an individual votes in an election but fails to vote on the amendment then the failure to vote is counted as a no vote.  What percentage of the electorate undervotes on constitutional amendments?  Going back to 1988 and looking at the last 12 amendments, the undervote averages 4.84%.  It ranged from a high of 7.68% to a low of 0%.  Why is this important?  One needs potentially to subtract 5% from  any support for constitutional amendments because some people will vote in the election but not on the amendments.  It is possible that there will be a similar 4.84% average undervote on one or both of the amendments, but it is also possible it will be lower because both are politically salient and controversial.  My guess is an undervote of about 2%.  This means subtract 2% from support and then add 2% to opposition.

So where do we stand after all my corrections?

Marriage Amendment
Yes at 53.5%, with No at 44%.

Elections Amendment
Yes at 52.8%, with No at 45.6%.


My survey corrections do not include the impact of early voting in Minnesota that has already commenced.  This may complicate messaging and moving people who have already voted.  However, my argument is that the current polls over/underestimate real partisan affiliation, underpoll younger people (cell phone users),  fail to calculate undervoting by the young, anti-gay sentiment,  and neglect constitutional amendment undervoting.  My result thus suggest a closer vote on the Elections Amendment than polls suggest and a larger margin on the Marriage Amendment.  Of course, opinion may change and that is why there are elections.  Let us see what happens on November 6.

Bachmann, Obama, and Vikings Oh My!

Bachmann is a Swiss Miss
In 2009 23% of the population did not believe Obama was a U.S. citizen. In 2011 Fox News poll, still a quarter of the population held this view with fully 40% thinking there is “cause to wonder” about his citizenship. Birthers remain unconvinced that Obama is an American citizen. Yet there is no debate–Michele Bachmann is a Swiss citizen.

Bachmann became a Swiss citizen by virtue of her husband Marcus who was able to claim citizenship by virtue of his parents. Congresswoman Bachmann automatically became Swiss by marriage. Normally no would care about this issue. But there is something ironic with Bachmann having dual citizenship.

First, many countries recognize dual citizenship, although the United States does not. Who knows how many Americans also have dual citizenship but it is not uncommon. Second, Bachmann’s dual citizenship does not render her ineligible to serve in the House of Representatives. Article I of the Constitution states that a House member must be 25 years old and a citizen of the United States for seven years. Bachmann meets these requirements so there is no problem.

In most cases perhaps no one would care if a member of Congress had dual citizenship. Some Jewish members have had dual citizenship with Israel. No one has criticized them for this. But Bachmann is different. Her entire political career has been about patriotism and wrapping the flag around her (remember her attempt to use “An American Girl” as her presidential campaign song). She also appealed to the Birther controversy to challenge Obama and she has hinted if not outright questioned his loyalty and patriotism.   Think about if Obama had dual citizenship with Kenya. His patriotism would have been roundly questioned by Bachmann and the conservative media. One wonders if the same conservatives will blog about her and questions her loyalty to the USA.

Obama Comes Out
Obama is finally out–he supports same-sex marriage. He joins radicals such as Dick Cheney and Joe Biden in support of same-sex marriage. No one can really be surprised that Obama has “evolved” to this position. The question is why now and what are the political implications.

The now and why are about presidential politics. Think about his 2008 political coalition that included young people (under 30), progressives, and liberals. Since 08 he has disappointed all three and there is a concern that there is an enthusiasm gap among his base. Announcing support for gay marriage is meant to arouse excitement among these three constituencies, making the election in part a referendum on same-sex marriage. A vote for Obama is a vote for gay marriage.

Additionally, public opinion has shifted and now a majority support gay marriage. I think Obama waited cautiously to come out until public opinion was on his side. Thus, not a bold move. Moreover, Joe Biden’s announcement Sunday that he was comfortable with gay marriage was perhaps a trial balloon. He announced it, the White House watched and waited for reaction (perhaps they even did some polls in the last 48 hours), nothing bad happened, and therefore it made sense to endorse gay marriage.

Politically, Obama may be gambling that his decision will excite his base, women (who are more supportive of gay rights than men), and perhaps socially moderate swing voters. Yes social conservatives are angry about this but did any of them seriously not think he supported same sex marriage. Moreover I doubt it will mobilize or anger them any more than they are. They already dislike Obama and this just confirms their fears.

Obama and the Minnesota Connection
How does Obama’s announcement play in Minnesota? His announcement directly fuses his reelection to the constitutional amendment banning gay marriage. This is not good news for supporters of the amendment.

Obama is popular in Minnesota and the state is pretty much his in the 2012 election. However Obama needed to motivate people to the polls. If the DFL are smart they pitch a vote for Obama as a vote for gay marriage and use that to drive young people to the poll. If they show up in droves they should also vote against the amendment. But just as good? If they vote for Obama but do not vote on the amendment then under Minnesota’s constitutional amending process, a non-vote is the same as a no vote. The same would happen with voter ID.

Minnesota and the Vikings
The Vikings got their stadium. The political lineup is interesting. The conservative Republicans–supposedly the party of corporations and rich–voted against the stadium handout and the DFL backed it.

Dayton made this his signature legislative agenda this year. Moreover, the DFL supplied 56% of the votes for the stadium. If we analyze more tightly it may be that many who voted for it were retiring and therefore did not fear voter retribution. However, it is unlikely the voters will care. They did not in 2006 when the legislature caved in to the Twins. In 2012 voters will care more about the economy, the government shutdown, and a host of other issues than they will necessarily care about this give away. And in districts where voters do care incumbents may be retiring.

The most unsettling part of the vote was what it says about the DFL. They look even more like the corporate Democrats they really are. It gets harder for them in November to criticize GOP priorities about cutting K-12 and borrowing against the tobacco endowment when they supplied the votes needed to give public money to a billionaire.