If the US Presidential Election were Held Today (Or Why Democrats Should be Beyond Worried)

 

Polls are not predictors.  They are merely snapshots of public opinion at a specific time. A lot can

change between now and the November 2024 US presidential election. But if the election were held today Donald Trump would beat Joe Biden in the electoral college and perhaps in the popular vote.

            There are many indications that Joe Biden is in deep trouble.  National  polls right now place him and Donald Trump in a tie, or with Trump with a slight lead.  But ignore all national polls.  We do not elect presidents either by national polls or a national popular vote.  All that matters is the electoral college and the race to get 270 electoral votes.

            But as I have written, not all fifty states are created equal.  Because of partisan demographics, population sorting, and the fact that forty-eight out of fifty states allocate their electoral votes on a winner-take-all basis, only a few swing states matter.  Within those few swing states perhaps only a few swing voters matter.  Back in 2015, I argued that there were only three numbers that mattered—10/10/270.  Ten percent of the voters in ten states would determine who would become president.  The reality was three swing states—Michigan, Pennsylvania, and Michigan decided the election.  Within those three states, shift 90,000 votes and Hilary Clinton would have been president. 

Four years later, factoring swing counties into the equation, the equation was 10/10/7/270.  Ten percent of the voters located in perhaps ten counties across seven states would decide the election.   In 2020 the election came down to Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin.  But had 43,000 more individuals voted for Trump in Arizona, Georgia, and Wisconsin, he would have won reelection.

Now four years later the numbers to look at may be 5/5/5/270.  Five percent of the voters in five counties located in five states—Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin—will decide the election, with Maricopa, Fulton, Wayne,  Allegheny, and Door counties deciding who gets to 270.

How has the presidential race come down to this?

Let us assume that Joe Biden and Donald Trump are the presidential nominees in 2024.  Assume that that each of them wins all the same states they won in 2020, and that they again split the states of Maine and Nebraska the way they did in 2020.  Assume also that Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin are the only swing states in 2024.  If the election were held today Trump would lead Biden in the electoral college 235 to 232.  This number reflects a shift in electoral votes after the 2020 census  that work to Trump’s benefit.  This leaves the above five swing states totally 71 undecided electoral votes.

Polls right now in  the five swing states show Biden leading in Michigan  and  Wisconsin (25 electoral votes) and Trump in the lead in Arizona, Georgia, and Pennsylvania (46 electoral votes). With the exception of Georgia where Trump according to the latest poll  has a nine point lead, all the margins  of victory are within the margin of error. This suggests that the races are really to close to call or could simply go either way.

Total up the safe states and swing states for each candidate.  Trump wins with 281 electoral votes to Biden’s 257.

The picture is bleak for Biden.  No sitting president has won re-election with approval ratings with what Biden now has.  Incumbents do badly when the public senses the country is moving in the wrong direction or when they perceive the economy is doing badly. This is the case now in the polls.

The public is worried about Biden’s age.  There is an enthusiasm gap comparing how Democrats feel about Biden compared to how Trump’s base feels about him.  Generally undecided voters break against the incumbent when they perceive things going badly in the country.

Add it all up—Biden is in serious trouble.

Biden and Democrats are hoping abortion saves them like in 2022. Or that the Trump legal problems and possible convictions will save them. These are tough bets to make.

Four years ago many viewed Biden as a one term transitional president who would pass the mantel on to a  new generation in 2024.  He still needs to do that.  There is a small window, perhaps just three to four months, that Biden has to decide to exit the race and leave room for another Democrat to emerge as the consensus candidate.

It is possible that Biden can still win. It is possible the polls are wrong or that they are not good predictors but simply snapshots in time.  One year is a political eternity.  Yet right now despite how bad a candidate Trump is with all his problems, there is no guarantee Biden  can win in 2024 and instead a good chance he will lose.

Covid-19 and the Presidential Election: What if the States Picked the Electoral College Delegates?

What if we held a presidential election but  no one came?  The April  7, Wisconsin primary demonstrated the problems that occur when the right to vote and demands of presidential elections confront the reality of Covid-19 and shelter-in-place orders.  What if the coronavirus persists to the general election, impacting the ability of individuals to early vote or cast a ballot on November 3?  Ultimately, the states could select the presidential electors, or Congress could pick the president.  If so, who wins?

            Many worry about several presidential election scenarios.  One is that President Trump will postpone or cancel it.  Alone he cannot do that  because the date of federal elections is set by law as the first Tuesday following the first Monday in November.  Alone the president cannot cancel or move this date, unless somehow the Supreme Court would rule that the National Emergencies Act would allow him to override a law.  If it did, the Court would be going against the Wisconsin Supreme Court’s logic when it prevented Wisconsin Governor Tony Evers from issuing an executive order delaying the elections, ruling that the emergency powers given to him only allowed a setting aside of administrative rules and not statutes.

            Postposing the presidential election also does not work for constitutional reasons.  Section One of the Twentieth Amendment states that the term of the president shall end at noon on January 20.  If there is no election there is no president or vice-president after that date, with the vacancy then filled by then Article II, Section One, Clause 6 of the Constitution along with the Presidential Succession Act that would hand the presidency to the Speaker of the House, presumably Nancy Pelosi.

            Others have proposed expanding vote by mail as an option for 2020.  Congress is unlikely for partisan reasons to approve this, and even if it did it is not clear if all states have the infrastructure or capability to implement in time.  There are also questions about security, potential fraud, and the federal government overruling state election bureaus and telling them how to administer federal elections.

            There is one final failsafe—instead of holding elections to chose the presidential elections to pick the president, the states can go back and do what they originally did and what the Constitution allows—pick the electors themselves.

            Article II, Section One, Paragraph two entrusts to  state legislatures the authority to select the presidential electors.  As the Supreme Court reminded America in Bush v. Gore:  The “individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.”  It is merely by the grace of  state law we get to vote to select the electors who pick the president.  But nothing requires this, and presidential elections in the age of Covid-19 means state legislatures, in a public health crisis, could simply select the electors themselves.

            While letting state legislatures pick the electors may not be a good idea, consider what would happen if they did. It takes 270 electoral votes to win the presidency.  According to  Ballotpedia, there are 21 states where Republicans have a trifecta—controlling both houses of the legislature and the governorship—and Democrats have that in 15 states.  Assuming in those 36 states straight party line votes would award electoral votes by party, Donald Trump would start with 216, Joe Biden, the presumptive Democratic nominee, would have 195.  This leaves 14 states, with 127 electoral votes under split control.  These states are: Alaska, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Montana, New Hampshire, North Carolina, Pennsylvania, Vermont, and Wisconsin.  Again, according to Ballotpedia, of these 14 states, there are several where the legislatures have large enough majorities that they can override  the governor.

This means  move Kansas’ and Kentucky’s electoral votes to Trump since the Republicans control both house of the legislature and a simple majority can overrule the Democratic governor, and he  has 230.  Move  Maryland and Massachusetts to Biden along with  District of Columbia’s three electoral votes and he has 216.  This leaves 10 states, with 92 electoral votes under split control.

How might those remaining states vote?  Assume a compromise in each state where they allocated proportionally based on congressional districts and splitting the two electoral votes each state receives based on having two senators.  This adds ten electoral votes to each (Trump 240, Biden 226).  Now assume the distribution of electoral votes in these remaining ten states follows the congressional voting patterns in 2016.  Of these 72 districts, Trump won 50 in 2016 and Clinton  won 22.  Award these  the same to Trump and Biden and  2020, Trump wins the presidency with 290 electoral votes to Biden’s 248.

Alternatively, assume these ten states cannot hold November 3, elections and cannot reach a compromise on  how to award the electoral votes.  With neither Trump nor Biden possessing the required 270 electoral votes, Article II, Section One, Paragraph Three and the Twelfth Amendment call for the House of Representatives to pick the president, with each state getting one vote and the winner needing a majority of the states.  However, this is the House elected in November 2020, and they would not vote until sworn in, in January 2020. Currently, even though Democrats have an overall majority in the House, Republicans maintain a 26-22 partisan majority control of state congressional delegations, with Michigan and Pennsylvania tied.  Assume no shift in partisan control, Trump wins. 

Canceling the popular vote to select the electors and decide the presidential race is a highly unlikely scenario.  But were it to occur the odds presently favor a Trump victory again in the electoral college, or  possibly in the House were it to go that far.

Partisanship and Petty Politics in Wisconsin

The power grab by Wisconsin Republicans to limit the incoming authority of the Democratic
Attorney General and Governor is about pettiness and being a sore loser.  But it is not the only instance of such pettiness–Michigan too is experiencing this, as did North Carolina a few years ago when the Democratic governor ousted the Republican.   Pettiness seems to be de rigueur, inspired by Donald Trump’s brand of politics, violating two norms, one informal, the other constitutional.
Pettiness and being a sore loser is not a unique feature of contemporary American politics–it tradition goes back perhaps as early as 1800.  Then, when Thomas Jefferson and his fellow Democrats took control of the White House and Congress and ousted John Adams and the Federalists, the latter retaliated with a series of late minute acts that included judgeships to stack the  courts.  This resulted in the appointment by John Adams of a judicial commission to William Marbury, who, while confirmed by the Senate, did not have his judgeship delivered in term and which Thomas Jefferson refused to honor.  The dispute resulted in the arguably the most important and famous Supreme Court case in American history–Marbury v. Madison–which established the principles of judicial review, constitutional supremacy, and separation of powers as fundamental values in American law and politics.
The incidents surrounding Marbury are twofold important.  First, the 1800 elections were arguably the most significant in American history, establishing a pattern of peaceful transition of government power from one party to another.  A hallmark of democracy is the acknowledgment by one party that it has lost and its willingness to give up the reigns of power peacefully to the opposition.  Yes, in 1800 the Federalists were sore losers, but power transferred without gun shots and the election established the unwritten norm of how parties ought to observe one another–not as enemies or criminals to be locked up–but as rivals with whom you disagree but nonetheless will not seek to illegitimately undermine.
Throughout American history losers may grumble that they have lost an election but they have not generally sought to change the rules of the game to undermine the incoming winners.  Moreover, they have generally not   sought to entrench themselves in power, either directly by trying to undermine the election results directly or indirectly. Unfortunately that has changed.  Mitch McConnell’s announcement after Obama’s victory in 2008 to do everything he could to oppose him is an example of what Jacob Hacker and Paul Pierson describe in their Winner-Take-All-Politics.  Politics has become a zero sum game–I win or you win’‘and not how to figure out how to create a “win-win” game that is the product of compromise.  Winner-take-all-politics is a product of the intense polarization and partisanship that has emerged in American politics, personified most perfectly in Donald Trump’s intense tribalism of divide and conquer politics, best captured in the “Lock her up” mantra against Hillary Clinton.  Largely Trump’s strategy was rejected in 2018, but many who thrived on it, as in Wisconsin, are unable to accept losing, view the opposition as evil.
Such manicheism is not confined to Republicans.  There are many Democrats similarly who view Republicans and Trump as mortal enemies.  Many see themselves as part of a resistance, almost romantically comparing themselves to freedom fighters in France during WW II taking on the Nazis.  Yes, the special prosecutor may find laws broken and persons worthy to be indicted, but one might take a page from Abraham Lincoln’s Second Inaugural speech asking for “ malice toward none; with charity for all.”
But if Wisconsin represents a breaking of the unwritten tradition of respecting election results and seeking reconciliation that the incidents surrounding the 1800 taught, it also violates another–the concepts of constitutionalism and separation of powers.  What the Wisconsin legislature is doing  arguably violates that state’s constitution.
The concept of separation of powers is located with the three vesting clauses of the Wisconsin Constitution, specifically  Art. 4, § 1; Art. 5, § 1; Art. 7, § 2.     When it comes to the power of the governor, the state Constitution declares that “The executive power shall be vested in a governor.”  Art. 5, § 1 (Layton School of Art & Design v. WERC, 82 Wis.2d 324, 347, 262 N.W.2d 218, 229 (1978); State v. Washington, 83 Wis.2d 808, 816, 266 N.W.2d 597, 601 (1978)). According to the Wisconsin Supreme Court: “No branch of our government is subordinate to the others, no branch is to seize control over the others except as provided by the constitution and no branch may exercise power committed by the constitution to another” (State v. Holmes, 106 Wis.2d 31, 42, 315 N.W.2d 703, 709 (1982)).
  The test to determine whether a violation of separation of powers has occurred is whether actions by one branch result in the usurpation of powers of another branch (J.F. Ahern Co. v. Building Comm'n, 114 Wis.2d 69, 104, 336 N.W.2d 679, 695 (Ct.App.1983)).  A departure from a strict separation of powers is permitted so long  as the zone of shared powers of  one branch does not unduly burden or substantially interfere with another branch (In re E.B., 111 Wis.2d 175, 184, 330 N.W.2d 584, 589 (1983)).
Given this language by the Wisconsin courts, the question seems to be a matter of degree–how far can one branch go before it encroaches on the core functions of another branch?  Arguably, the Wisconsin legislature appears to be at this point with it efforts to limit the governor.  The question is what are the core executive functions vested in the governor and has the legislature  unduly burdened them?  Arguably, preventing the governor from withdrawing from law suits or changing other policies directly limit core functions, questioning the constitutionality of this move.
But what about the attorney general?  Article 5, § 3 declare the,” duties and compensation of the treasurer and attorney general shall be prescribed by law.”  This constitutional provision appears to give the legislature more authority to act to augment the attorney general’s authority than that of the governor.
So what are the remedies?  A federal law suit will not work because this is a matter of state and not federal constitutional law and the federal courts will generally not render a decision on state constitutions and what they mean.  Thus, the suit must be in state court. However, according to a Wisconsin Court of Appeals decision State v. City of Oak Creek, 223 Wis. 2d 219, 588 N.W.2d 380 (Ct. App. 1998), the attorney general does not have authority to challenge the constitutionality of statutes.  This decision would appear to foreclose a lawsuit, however there are reasons to think this decision is wrong and could be reversed by the Wisconsin Supreme Court.  But even if correct, the governor could hire a private attorney to bring suit, but given the current partisan line up on the Wisconsin Supreme Court,  Evers may not win were the issue to likely go there for resolution.  The legal option may be foreclosed, at least in the short term.
Instead, Evers and the Democrats option may be legislative next year, threatening to veto provisions that Republicans want if they do not change the law.  Additionally, while unsuccessful  in the past, threats of recall are possible, and, of course, with 2020 and then redistricting after that, the Democrats may have to rely on the electoral solutions to address the petty turn of sore losers in Wisconsin.

The twisted metamorphosis of Scott Walker’s Wisconsin: How a once-liberal state became a political battlefield

This week's blog originally appeared in Salon on April 9, 2015.  Here is the link to that piece.

The 2014 Elections and the Second Great Disenfranchisement

Elections are supposed to be the way people select their leaders. Increasingly that is no longer the case.  The courts now occupy an enormous role in determining the outcome of elections–even before they start.  That is clearly the case this year where too often the goal has become to rig elections by making it harder for some, especially people of color, the poor, and the young, to vote.  This especially seems to be the strategy of Republicans who continue to push the Second Great Disenfranchisement in American history.
    Consider what is happening across the country right now, with less than a month before the election and early voting already taking place in many states.
    The U.S. Supreme Court upheld Ohio’s curtailment of early voting which was adopted by Republicans, after a federal district court and a court of appeals stayed the law.  Republicans in Wisconsin pushed through a strict voter ID law and just in the last few days the Supreme Court has enjoined its enforcement for this election.  Suits are challenging limits passed by Republicans in North Carolina limiting on  same day voter registration and a ban on counting ballots from incorrect precincts.  And in just the last few days a federal judge enjoined a voter ID law in Texas that would have disenfranchised over 600,000 voters, especially impacting African-Americans and Latinos.  This law too was pushed by Republicans including the state’s governor Rick Perry. 
    In all of these cases it is Republicans pushing to shrink the electorate, to make it more difficult for people of color, the poor, and young to vote.  If the First Great Disenfranchisement came after Reconstruction ended in the 1870s, we are now witnessing the Second Great Disenfranchisement.  The former ushered in the era of Jim Crow, polls taxes, literacy tests, and grandfather clauses as tools to deny African-Americans the right to vote.  Today claims of voter fraud and measures such as voter ID, long voting lines, eliminating early voting, and the gutting of the Voting Rights Act are the tools to accomplish the same.
    Republicans generally are advocating  limits on voting, depressing voter turnout even more during midterms elections when Democrat-leaning voters are less likely to show up.  This seems to be part of a national strategy to rig elections in their favor.  In some states, such as Wisconsin and North Carolina, these curtailments of voting rights could make a serous difference in who wins as governor or the US Senate, and ultimately which party might control the Senate.
    But even beyond legal efforts to disenfranchise, another one is occurring.  Nationally, perhaps only around 38-40% of those eligible to vote this year.  Young people, people of color, and the poor are especially likely to stay home.  Yes it may be true that neither of the major parties offers any alternative or real choice for these people, but still one should vote.  Vote even if it means writing  in a candidate of your choice.  Show up, vote, and use it as a protest vote if needed. Get in the habit of showing up and demonstrating to the two parties that your voice matters and it should be considered.
    A lot of blood and energy was spent in the passed to get the young, people of color, and the poor the right to vote.  Don’t waste those past efforts.  Remember, there are many people who don’t want you to vote and who did not want your ancestors to vote.  Voter ID laws and other legal restrictions are bad but it is even worse if you decide not even to bother to show up.

Side note:  Over the last few days I have heard several commentators and reporters remark that despite the fact that Dayton and Franken have large leads in the polls the races will certainly tighten.  Really?  What is the evidence for that?  In past elections that has happened but so far there is no evidence from the polls that these races are getting any closer.  Since the August 12, primary both Franken and Dayton have maintained leads from at least 8 points to more.  There is no evidence from the polls that the races are getting close.  Instead, the evidence suggests either that public opinion has frozen or that the incumbents have leads that are increasing.  Yes, I have some disagreements with the polls but right now there is no hard evidence to suggest these races are getting any closer.  In fact, it is entirely possible that minds have been made up and that where we are now is where the final outcome will be.  My point?  Lacking evidence to the contrary, it is bad analysis to say that the races will tighten unless you have good data this year to support that assertion.

The Day After the Election: Excuses

Come the day after the election there is a fantasy many of us have that the losing side  in the presidential race will tell the winning side that it was a hard fought and close campaign but that the winner won fair and square.  Unfortunately that will not occur, especially in light of all the pre-election litigation and legal posturing.

Assuming Obama wins, I suspect the argument Republicans make is that the election stolen.  Assume Obama wins close races in Wisconsin and Pennsylvania, Republicans claim that were it not for a court suspending or invalidating voter ID in those states Romney would have won.  Obama’s victory was a product of fraud.  In Ohio the message will be that the courts allowed too many provisional ballots and therefore fraud occurred, and in Florida they will argue that relaxation of some of the restrictions on voter registration and early voting will be the cause of ineligibles voting.  A few will also point to how mediocre a candidate Romney was, but the big issue will be fraud.

Conversely, on the slight chance that Romney wins, the cry will be that voter suppression across these states is the reason for the loss. A few will point to how mediocre a candidate Obama was, but the big issue will be voter suppression.

I am suspecting these talking points are already being cued up by members of this listserv and the two parties in anticipation of efforts to justify litigation, delegitimize the winner, and prepare us for the fact that on November 7, we will be less than two years away from the next elections.

Tocqueville got it right: “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.”

The Presidency and Foreign Policy (plus a note on Polls and Wisconsin)

The 2012 presidential race was supposed to be about the economy.  At least that is what Mitt Romney wanted.  His goal was to emphasize this experience as a businessman in contrast to Obama’s failed leadership in an economy with still high unemployment.  If his first message was to steal a page from Bill Clinton’s 1992 campaign–“It’s the economy stupid”–his convention speech shifted it to the Reaganesque “Are you better off now than four years ago.”  Run on the economy, as the conventional wisdom would have suggested, and it should be a path to the White House since presidential re-elections are generally referenda on the economy.

Yet things have just not worked out for Romney.  First it was Obama picking up where Newt Gingrich left off, turning Romney’s Bain Capital experience into a liability and symbol of vulture capitalism.  Despite the persistence of a weak jobs economy, Romney has lost his advantage on this issue as the NY Times reports that polls now give Obama a slight nod on this issue.

The it was Paul Ryan.  Ryan diverts attention away from the economy and to budget cuts and Medicare.  Or Atkins in Missouri has pushed the agenda to abortion and social issues.  Or Obama  and the Democrats have made the campaign about gay rights.  Whatever the diversion, though, Romney has not been able to score on the issue that should have been his strength–the economy.

And now the agenda has shifted again–to foreign policy. Until now the presidential race was about domestic policy.  Yes Romney tried in his RNC speech to talk about Afghanistan and the war there, but generally the polls suggested that this is not what is driving the public or the race.  But how recent and potential events are placing foreign policy back perhaps to the center of the race, again taking the presidential contest further away from the economy.

Two events this past week were particularly important.  There is the killing of the US ambassador in Libya along with the anti-American uprisings across the Arab world, and then the demand by Israeli Prime Minister Netanyahu for the US to draw a red line for Iran regarding nuclear weapons.  Both of these events thrust foreign policy and events into the middle of the presidential race.

At first blush, Obama is coming our a winner.  He does so because of Romney’s ham-handed criticism of the president regarding Libya that was factually wrong and ill-timed, criticized even by fellow Republicans.  This is not Romney’s first mistake.  He crudely criticized the UK regarding the Olympics and also while visiting Israel his comments about Palestinians was criticized.    His views on Russia too seem antiquated.  The point here is that Romney’s lack of foreign policy experience is showing, and it creates an opportunity for Obama to look presidential and qualified.  Romney’s problem is not unusual for presidential challengers when running against incumbents–the latter always look more experienced and qualified–the big exception being Jimmy Carter and the hostage crisis in 1980.

Generally foreign policy crises work to a president’s political advantage.  It gives them the chance to look, while presidential and in control.  People rally around the flag, especially if presidents act decisively.  So far Romney has damaged himself and Obama has not hurt himself.  But that could change.

Think of worst case scenarios–all October surprises.  Israel bombs Iran.  What does the USA do?  Obama cannot ignore supporting our ally and with the Jewish vote critical to a Florida victory, he may have no choice but to intervene.  How such a war will affect the presidential election overall is unclear.  Conventional wisdom generally says the president should be helped with something like this, but America is war-weary.

A second October surprise-American hostages are taken at some other US embassy or another ambassador is killed.  Images of Carter, Iran, and 1980 are invoked here.  Carter’s impotence with the hostages–and a botched rescue mission–were not good for his image.  Obama probably now needs to take some major foreign policy action to address Libya but what?  In theory it and Egypt are our allies.  Kind of hard to bomb them.

Other October surprises are a continued erosion of stability and civil war in Syria and financial solvency of the Europe.  Overall, these foreign policy events are largely beyond control of Obama and all could dramatically change the presidential race.  They also have domestic implications–look at the price of gas.

Overall foreign policy and international events run risks for both Romney and Obama.  How these events play out are yet to be seen but they have placed foreign policy in the center of the race.  For Obama it also shifts the race again off the economy and that might be good.  For Romney, this may not be good.

Two Final Thoughts: Swing States and Labor Rights Wisconsin

Two other thoughts are in order.

Both the Financial Times and the New York Times have noted critical changes in the presidential race since the DNC.  Obama and the Democrats got a convention bounce that the GOP and Romney did not.  Obama picked up a couple of points in the polls but more importantly, he picked up some approval ratings.  This may be the “sugar high” that Romney speaks of, but it is still significant. 

But the bigger problem for Romney is that two swing states–Pennsylvania and Michigan–are no longer swing.  Romney has effectively given up on them, reducing the number of swing states to eight or nine.  The Financial Times reports nine swing states with Obama leading in eight, including a solid margin in Ohio.  Romney may be close in the national polls but he is not doing well in the critical swing states-although he has a shot in Wisconsin

Finally, on Friday a Dane County circuit judge invalidated the law that abrogated public employee rights in Wisconsin.  He did so on federal constitutional grounds (First Amendment freedom of association and Fourteenth Amendment equal protection grounds) along with state constitutional claims.  Were the decision upheld on appeal it would be a real repudiation of the Walker and perhaps more significant that had he ben recalled.

However hold on with this case.  It was not the best drafted opinion and the chances of it being upheld are iffy at best.  Moreover, Walker will move for the decision to be stayed on appeal.  It is not clear after reading it whether it restores collective bargaining rights and if so, when.  In short, lots of questions remain regarding what the decision really means.

And the Winner Is....Predicting the 2012 Presidential Election

Note: Several months ago I published an article predicting the 2012 presidential race.  On July 26, 2012 I was the keynote speaker at the Coalition of Greater Minnesota Cities Summer Conference/Annual Awards Dinner where I updated my prediction.  Here is a summary of my talk and prediction.

    Presidential public opinion polls are perplexing. Some polls put Obama ahead of Romney, some say the race is tightening. Others find Obama ahead in critical swing states while others describe swing voters as perhaps moving toward Romney. 

    Ignore all of these polls.  The only three numbers I think that are important are these:  10/10/270.   Let me explain.

    You should ignore the polls first because they are snapshots in time, more than almost four months before the November elections.  Too many things can happen–a collapsing economy, war in Syria, gas prices, campaign gaffes–which can impact the race in the next few months.  Ignore the polls also because they are national opinion polls reflecting aggregate opinion across the county.  As Florida in the 2000 presidential election taught us, one can win the popular vote in a presidential election (as Al Gore did) but still lose the presidency in the Electoral College.  What matters most is winning 270 electoral votes.  The presidency is a battle not across 50 states but in 50 states.  In contrast to the Republican presidential contest that has turned less from winning individual states than to amassing delegates, the general election in November is really one of winning enough electoral votes to reach 270–a majority of the 538 electoral votes at stake.

    What complicates the race to 270 is that with the exception of Maine and Nebraska, the remaining 48 states plus the District of Columbia award their electoral votes on a winner-take-all basis.  Whichever candidate wins a plurality of the popular vote in a particular state wins all of its electoral votes.  Thus the general election is both about winning states and amassing delegates.

    Why is all of this important?  Simply the presidential race is over in 40 states.  There are some states that are reliably Democratic or Republican.  No one seriously thinks a Republican is going to win New York and even though Mitt Romney is its former governor, neither he nor any other Republican has a prayer to win Massachusetts.  Conversely, even though Romney’s recent bad news was that he could not prevail in Alabama and Mississippi, the good news for him and Republicans is that no Democrat is going to win there.  The race for the presidency is simply over in these states and Democrats in Texas and Republicans in California might as well do something else besides casting presidential votes in November.

    Barack Obama is reasonably assured of winning California (55 electoral votes), Connecticut (7), Delaware (3), Hawaii (4), Illinois (20), Maine (4), Maryland (10), Massachusetts (11), New Jersey (14), New York (29),  Oregon (7),  Rhode Island (4), Vermont (3), Washington state (12) and Washington, D.C. (3).  And despite protests from Republicans that Minnesota (10) is competitive, that is a fairy tale. If Minnesota is a swing state then it is truly over for Obama. Don’t look for the candidates or TV ads to be here come October. Thus, Obama starts with 15 states (plus D.C.) and 196 electoral votes.

    Conversely, Mitt Romney or any other Republican nominee is reasonably assured of winning Alabama (9), Alaska (3), Arkansas (6), Georgia (16), Idaho (4), Kansas (6), Kentucky (8), Louisiana (8), Mississippi (6), Montana (3), Nebraska (5), North Dakota (3), Oklahoma (7), South Carolina (9), South Dakota (3), Tennessee (11), Texas (38), Utah (6), West Virginia (5) and Wyoming (3).  Moreover, it was luck in 2008 that Obama won Indiana (11) and that is not in the cards this year.  This is a total of 21 states and 170 electoral votes. 

    Initially, this means a total of 14 states, with 172 electoral votes, are potentially in play. These swing states will determine the outcome of the election and within them, swing voters–roughly 10-15% of the voters–will make the difference.  Thus, the battle for the presidency is really over what a handful of swing voters do in 14 swing states.  These states are:  Arizona (11), Colorado (9), Florida (29), Iowa (6), Michigan (16), Missouri (10), Nevada (6), New Hampshire (4), New Mexico (5), North Carolina (15) Ohio (18), Pennsylvania (20) Virginia (13), and Wisconsin (10).

    Now some of the states are debatable as swing.  It is a long shot for Democrats to win Arizona even with a strong Hispanic turnout.  In hopes of winning North Carolina Democrats are holding their convention in Charlotte.  But there is no evidence that there is a convention bump; look to the Republican National Convention in Minnesota in 2008 as rendering North Carolina a long shot.  Similarly, Republicans consistently see Pennsylvania as one that they can win, but the Keystone State, as well as Michigan, remain more Democratic than Republican.  The last time the GOP won Pennsylvania was in 1984 with Ronald Reagan. In the case of Michigan, Republicans running against the auto bailout seem to be a losing strategy.  Thus, the original 14 state list could be reduced to ten, leaving Obama with 232 electoral votes, and a Republican nominee with 196.  This leaves 110 electoral votes in contest.

    These states are: Colorado (9), Florida (29), Iowa (6), Missouri (10), Nevada (6), New Hampshire (4), New Mexico (5), Ohio (18), Virginia (13), and Wisconsin (10).

    If pressed I could even make the argument that it is over in Wisconsin (Obama) and Missouri (Romney) but will not.

    In these swing states the percentage of undecideds ranges from 10% in Colorado, Ohio, Florida, Tennessee, Iowa, and Missouri, to about 7 percent in Nevada, with the overall undecideds in the country at 10%. Thus this is how I arrive at 10/10/270–Ten percent of the voters in ten states determine who gets to 270.

    Now the question is who the undecideds are and what will move them. Politics is about moving marginals (swing voters) (politics as a bar fight) Consider who these voters are and the issues that concern them. 

    First they are the unemployed, struggling middle class affected by the economy gas prices, and unemployment. These are the white working class. Bad news for Obama is that he does not connect with them. Good news for Obama, they also do not connect with Romney.

    The second group of swing voters include moderate women concerned by recent debates over reproductive rights, birth control, and family issues. These are the soccer moms. The swing to the right has alienated many of these women from the GOP and Obama and the Democrats seem to be enjoying an unusually large gender gap this year.

    The third group of swing voters are young people under thirty. It is odd to call them swing voters especially since four years ago they came out strong for Obama. This time around they are nowhere near as excited by him as they were in 2008, mostly because of economic issues and the failure of Obama really to connect with them.. These voters should be part of Obama’s base but because of their unpredictable turnout it is apt to call them swing voters.  If they do show up they will vote for Obama.

    Potentially these three groups and issues overlap; making it difficult to decide which is the most important or will tip the balance in the election.  But assume for minute that this presidential election is similar to many others in that it is a economic referendum on the incumbent–then it is the economy that is the main issue.  How is the economy doing in these swing states?  It is a mixed bag, with unemployment levels stagnating along with economic growth.  Moreover, neither candidate seems to be doing a good job coming up with an election narrative except for saying “I’m not Obama” or “I’m not Romney.”

    Having said all that, here is how I think the remaining states are tipping now.

    Add to Obama’s 232 the following states: Colorado (9), Nevada (6), New Hampshire (4), New Mexico (5), and Wisconsin (10).  This is 34 more electoral votes that gets him to 268, two short of the necessary 270.

    Add to Romney’s 196 :  Missouri (10), Virginia (13).  This is 23 more electoral votes and gets him to 219,still 51 short.

    Three states, Florida (29), Iowa (6), Ohio (18), total 53 electoral votes, and they are too close to call at this time. Romney needs all three states to win, Obama one state to win.

    Unless this election is a replay of 1980 where disgust for the status quo and Carter was so strong that it tipped millions of swing voters in the last 72 hours to vote for Reagan, I do not see Romney presenting winning all three of these states.  Obama wins at least one of these states, thereby ensuring his re-election.  Obama wins with 274-321 electoral votes.

Government Shutdown One Year Later: Reforming the Minnesota Budget Process

It is now the one year anniversary of the Minnesota government shutdown and proposals are flying off the shelf regarding what needs to be done to avert future budget impasses. Solutions range from cutting off legislative pay to exempting certain organizations from the shutdown (the zoo and the state lottery) to even saying that simply creating one party government (vote DFL and throw the bum GOP out this November) is what is needed.  All these are worse than band aid solutions; they really are going after the symptom and not the cause.

            The real problem is the flawed budget process in Minnesota. It is a process built for the horse and buggy days trying to operate in the 21st century. Government is so much more complex, the budget numbers so much larger, the functions more diverse, that it is perhaps impossible to reach consensus and make decisions between the beginning of January and ending on the first Monday following the third Saturday in May as specified by the State Constitution. These are deadlines from the nineteenth century and reflect a different era for the state. There simply may not be enough time to do the budget by law in the 21^st century.

            But think also how flawed the current budget process is right now.   We have elections in November, The state then receives a fiscal forecast at the end of November telling the governor what the economic assumptions and budget situation in the state will look like in the coming months.  The governor then finalizes a budget premised on these assumptions.  If there then is a new governor (as there was in 2010) then the new governor when he takes office finishes the budget of the old governor.

            Now the new legislature comes to work in early January and then it waits until late January or so for the governor to release the budget. Then they all wait until late February for the updated fiscal forecast. Thus, it is really not until late February or March that the work on the budget commences. And even then, there are separate hearings in the House and Senate, forcing conference committees to act. The budget also is really ten separate bills, with spending distinct from taxation, and no real work gets done until there are agreements on the different spending targets for each of the areas such as HHS, K-12, and so on.

            Sound confusing? It is. It is also inefficient. At least two months are wasted at the beginning of every budget cycle waiting for the governor’s budget, the fiscal forecast, and then agreement on budget targets. Now add more wrinkle–budgets are created right after state elections when often many new legislators or constitutional officers are elected. They are green, often learning on the job while creating a new budget. This is what happened in 2011 after the 2010 elections.  The same will be true in 2013 when the 2012 elections produce a legislature with at least 25% of the legislators being new.  These new legislators are barely in office, barely understand the state government when they are asked to review the budget.  This makes no sense. In a distant past when life and budgets were less complicated (and smaller), perhaps it was possible to do all this with a part-time citizen legislature. But those days have passed. A new budget process is needed, with new time lines and ways to move the work along.

            Is there a better way to do the budget?  For nearly a decade I have argued that the current budget process is backwards and that a new mechanism is needed.  Many of these reforms are found in our neighbor state of Wisconsin.  What are these reforms?

            In Wisconsin there is a joint House (Assembly)  and Senate committee that does the budget.  It is one bipartisan committee and not separate committees in the two chambers as in Minnesota. Second, there should be one budget bill and not ten separate ones as is currently the case in Minnesota.  Moving to create one budget with one committee primarily but not exclusively responsible for it is a necessary correction and centralization to the highly decentralized process that currently occurs in Minnesota.  Additionally link budget and tax bill together.  Spending and revenue need to be connected.

            But in addition, one of the best ideas from Wisconsin is that of an automatic continuing resolution.  By that, if the budget is not passed on time in Wisconsin then the existing budget continues in force until the budget is agreed to.  This reform alone would prevent a shutdown.

            There other possibilities for reform.  One would be to pass the Truth in Budget Act. It would do two things.  First, it would undo the current asymmetry or stupidity in the law that counts inflation for the purposes of revenue but not obligations in Minnesota.  This law dates back to the 2002 when Roger Moe and Tim Pawlenty, in running for governor while they were still in the legislature, creating the gimmick to avoid having to deal with the real budget problems during the election.  The Truth in Budget Act would also ban spending shifts (shifting spending obligations past July 1, to push the matter off in the next budget year) and “borrowing” from schools and other entities with the false claim of paying them back in the future.  These are truly gimmicks.

            But even other reforms could take place.  Why should the legislature do the budget in the odd years right after the election?  Why not move the budget year to the even years and give legislative members a year to learn about the state government before tacking it?  Other possibilities include changing the timing of the budget, or when the legislature is called into session.  Instead of the legislature coming into session in early January, then waiting for the governor’s budget and then the fiscal forecast, change the timing of one or all of these to create a process that makes more sense.

            The point here is that there are many ways to fix the budget process to avert future government shutdowns.  The proposals being floated now will do little to correct the process.  Broader structural changes, such as those described here, are needed and can work.

Government by Ballot Will Minnesota Learn from Wisconsin and California?

This piece originally appeared last week in Politics in Minnesota.

As Wisconsin goes, so goes Minnesota?  Or perhaps is it California?  The choice of Minnesota’s future and the fate of its two constitutional amendments this fall might lie in the lessons one learns from these two states when it comes to direct democracy and citizen’s initiatives.  But beyond whatever lessons Wisconsin and California offer, there are reasons to question the wisdom of three hallmark reforms of the Progressive Era.

            Wisconsin is a state of political contradictions.  In 1854 the Republican Party was founded in Ripon.  Wisconsin is also the home of Robert “Fighting Bob” Lafollette and the Progressive Party.  The state has produced senators Joe McCarthy and Gaylord Nelson, and governors Patrick Lucey and most recently Scott Walker.  It is a state once at the forefront of union movements and most recently retrenching on these rights.  But it is also the state that gave birth to a movement that eventually trumpeted initiative, referendum, and recall as tools of reform. Yet Wisconsin may also be the state the spells the end of these three reforms.

            Yes the Democrats and labor failed in their efforts to recall Governor Walker.  But the failure was perhaps not for reasons thought.  Exit poll in the June 5, election indicated that 60% of the voters did not support using recall for the purposes of ousting someone because of their political views.  Recall is for malfeasance or misfeasance–doing something illegal–and not to be used lightly to remove people you simply do not like or with whom you disagree.  The failure of the Walker effort in Wisconsin has sparked talk of tightening and reforming the state’s recall process, perhaps requiring grounds to remove someone from office.

            Now consider California–home base to government by ballot measures.  It is the state that recalled Governor Gray Davis in 2003 and replaced him with Arnold Schwarzenegger. They literally pass scores of initiatives, from Proposition 13 in 1978 that froze property taxes and has nearly bankrupted the state, to Proposition187 in 1994 that denied public services to immigrants, to most recently Prop 8 –The California Marriage Protection Act–banning same-sex marriage in the state.  Government by ballot initiative has practically destroyed the state, turning it from a leader in so many areas such as education and environmentalism to one where California is practically ungovernable.

            Will Minnesota learn from experiences of Wisconsin and reject the marriage amendment this November or will it follow the direction of California and use constitutional politics to bypass the normal legislative route to enact legislation?   While opponents of both of these measures have emphasized equality, fairness, and cost as reasons to oppose both, perhaps they should also settle on the arguments from Wisconsin suggesting that the Minnesota Constitution is not the place for legislation such a gay marriage bans and voter ID, or that this is the road of turning the North Star State into California.  Making a vote on these two amendments de facto a referendum on constitutional politics is a strategy opponents should not foreclose.

            But beyond whatever happens in Minnesota this fall, the lessons of Wisconsin and California bring into question the wisdom of initiative, referendum, and recall as tools of democracy.  Once heralded by Progressives as measures to break special interest and entrenched legislative politics by bringing democracy to the people, one can really question the wisdom of these reforms.  There are several problems with these tools.

            Money Spent for Initiatives and Referenda cannot be limited.  In its 1978 decision First National Bank v. Bellotti the United State Supreme Court declared that money on ballot initiatives was core political speech and that efforts to place limits on the amount of money spent or contributed for these purposes was unconstitutional.  More importantly, the Court stated in Bellotti that limits on corporate spending violated the First Amendment, with that message reaffirmed and extended in the 2010 Citizens United decision.

            The importance of Bellotti and Citizens United for Minnesota are twofold.  First, were initiative and referendum enacted, the state could not limit the amount of money spent by any party.  Second, while Minnesota has had a ban on corporate political spending dating back over 80 years, that ban could not be applied to ballot initiatives.  Minnesota is already witnesses this flood of money as it applies to the marriage amendment. Hence, adoption of initiative and referendum would open an even larger hole in out existing campaign finance laws, permitting corporations and any other party to spend unlimited amounts of money to influence the outcome.

            Money Spent on Initiative and Referenda Circumvent Populism.  In perhaps the best study to date on initiative and referenda, Thomas Cronin indicates in his book Direct Democracy that money has a decisive influence on the outcome of ballot measures.  For example, he notes that corporate-backed sponsors win 80% of the ballot initiatives and that when big money opposes a poorly funded ballot measure, “the evidence suggests that the wealthier side has about a 75 percent or better chance of defeating it.” In addition, evidence demonstrates strong correlations between the amount of money spent and the number of votes cast and that while money cannot guarantee victory, the amount of money spent is decisive in defeating a ballot proposition.

            Overall, the evidence suggests that a popular ballot measure is more often than not defeat by corporate and big money and that corporate and special interest money and not the will of the people is what generally prevails in initiative and referendum decisions. Elizabeth Gerber’s book The Populist Paradox sees money as defeating but not passing ballot measures.

            Big Money Distorts Public Deliberation.  What big money buys in debates on ballot measures is media exposure.  According to several studies, media exposure is the single most important factor influencing and swaying voter decisions.  Given the cost of the media, for the most part, the public will be asked to make critical public policy decisions based upon 15 second sound bites financed by interests that have the most money to spend on the media.  Clearly our constitutional framers the original supporters of initiative and referendum did not envision policy making premised upon sound bites and the cash nexus yet the evidence suggests in California and other states that this is exactly what has happened.

            Initiative and Referendum has Little Impact on Voter Turnout.  Advocates of initiative and referendum claim that letting the voters decide increases turnout.  In some cases yes it does, but as a rule it does not. When appropriate variables are held constant, there is little difference in voter turnout in states that have initiative and referendum versus those that do not.  In addition, in some states, such as California, the presence of often 10, 20, or more initiatives on the ballot has lead to voter burnout where citizens, unable to digest the information necessary to make intelligent choices on all the ballot measures, have opted not to vote on them.

            Initiative and Referendum often  hurt Minority Rights.  Thomas Cronin notes in Direct Democracy that minority rights are often targets of initiatives and referenda.  While it is no doubt the case that some ballot measures have supported minority rights, the truth is that more often than not ballot measures have become another measures for special interest groups to push their agenda, often at the expense of individual rights.  It is unlikely that debates on the rights of unpopular or minority groups or other politically salient issues can be adequately undertaken in a media campaign where dollars buy sound bites.  Deliberation of public policy requires more than that.  In sum, democracy and populism stand for more than pure unmediated majority rule.  Democracy requires a careful balance of rights and policy considerations often not adequately suited to initiative and referendum.

            The lessons of direct democracy are not comforting.  They have not necessarily strengthened citizens’ rule or promoted good government.  Instead, they are used often to push special interests and persecute minority rights–as is the case with the two Minnesota constitutional amendments this fall.  Opponents of these amendments should emphasize these lessons in their campaign to defeat both this November.