Less than Fundamental: The Myth of Voting Rights

The Supreme Court’s recent Husted v. Philips Randolph Institute upholding Ohio’s voter purge law and Minnesota Voter Alliance v. Mansky striking down Minnesota’s political apparel ban are only latest cases declaring war on voting rights.  These cases are part of the second great disenfranchisement in American politics.  Like the first one after the end of Reconstruction, this one too aims to rig the election process, entrenching one set of interests in power.
The story of voting rights in America is one of exceptionalism.  In 1787 when the US Constitution was  drafted the right to vote was absent from the text.   The Constitution then (and still to this day because the Electoral College actually picks the president) did not a grant a right to vote for president, senators were chosen by the state legislatures, and while members of the House of Representatives could be selected by the people, who could vote was a matter of state law, with franchise generally limited to property-owning white males, at least 21 years old, who were citizens and members of a church or particular faith.
The traditional story of voting rights in America tells how franchise and democracy expanded over time.  First in the 1820s states started dropping property requirements to vote and began allowing qualified individuals the right to pick the electors who selected the president.    Then there would be the story of the adoption of Fifteen, Nineteenth, and twenty-sixth Amendments granting the right to vote to freed male slaves, women, and eighteen-year-olds.  There would also be the story of the Seventeenth Amendment allowing for direct popular vote of senators, the Twenty Fourth Amendment eliminating the poll tax, and the 1924 Indian Citizenship Act, and the 1965 Voting Rights expanding voting rights to Native-Americans and people of color.  These amendments and laws, along with Supreme Court cases such as US v. Classic and Harper v. Virginia Board of Elections, are part of an election law canon supposedly guaranteeing the right to vote as fundamental.
Except the right to vote in the United State is less than fundamental. The other side of the story of voting rights in America is how tenuous and contingent franchise is, and how much pressure there has also been to restrict it.  The United States is the only country in the world that still does not have in its Constitution an explicit clause  affirmatively granting a right to vote for all or some of its citizens.
The 15th, 19th, and 26th Amendments do not actually grant an affirmative right to vote–they merely prevent denial of franchise on account of race, gender, or age. One consequence of this less than fundamental right is that the US has one of the lowest rates of voting among democracies in the world.  Voting is stratified by race, class, and gender.  While most legal restrictions in place on franchise in 1787 have been eliminated, in reality the profile of those who vote today is almost identical to what it was back then.
With each push to expand franchise a counterpunch responded to contract it.  During the first  great enfranchisement after the Civil War, Congress enacted civil rights legislation and adopted constitutional amendments during Reconstruction in order to establish voting rights for freed male slaves.  It worked–electing many blacks to state and federal office–until Reconstruction ended in 1877 and the Jim Crow Era commenced.  Tools as explicit as lynchings were deployed to dissuade African-Americans from voting, but so too were felon disenfranchisement laws, poll taxes, literacy  tests, and grandfather laws.  These techniques successfully wipe out the right to vote for many for nearly another century.
But then the second great enfranchisement occurred during from the 1950s to 1970s.  Once  the 1965 Voting Rights Act and its subsequent amendments along with the  1993 Motor Voter Act began to make an impact, the backlash began. The first great disenfranchisement was a partisan affair pushed by Democrats.  This time it is Republicans.
It began with cries of voter fraud, even though there is no credible evidence that in-person  fraud at the polls is a serious problem.  The Supreme Court endorsed voter ID laws in its 2008 Crawford v. Marion County, and now 34 states have photo requirements.  These ID requirements are especially hard on the poor, people of color, new citizens, and the elderly; many of these groups lean Democrat.  In its 2013 Shelby County v. Holder the Court declared part of the Voting Rights Act unconstitutional, embolden states to take action such as closing polling places or cutting back on early voting.  And way back in 1974 the Court endorsed ex-felon disenfranchisement laws in Richardson v. Ramirez, stripping away the right to vote to millions of individuals, many of whom are poor and people of color.  Over time other limits on voting have been adopted by states, and the Court has come to accept them as routine and reasonable administrative regulations, failing to look at the impact the rules have on the voter.
Now we have  Husted v. Philips Randolph Institute and Minnesota Voter Alliance v. Mansky.  Supporters of these laws will say that these decisions either disenfranchise few, are necessary to prevent fraud, or protect free speech.  But they also put more burdens on voters to ensure they are registered to vote or require them to endure more pressure when they enter the ballot box to vote.   Voting has become an individual struggle–fighting both against the government and others to cast a ballot.  You are essentially on your own to figure out how to vote, and it appears the government will do little to help you.  No surprise that Justice Roberts in his Mansky majority opinion refers to the days of the nineteenth century when voting “was akin to entering an open auction place... where [c]rowds would gather to heckle and harass voters who appeared to be supporting the other side.”
Such a scene was intimidating.  This is what voting is turning into again.  Casting a vote is becoming again  an act of courage, meant not for the faint-hearted.  Whatever the election law fiction  is, the right to vote now is less than fundamental.

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 Case for a Federal Uniform Voting RIghts Act

Note:  This blog originally appeared in my October, 2012 PA Times column.

The Electoral College met on November 17, and formally wrapped up the 2012 elections.  Yet while the results were conclusive, the time is ripe to consider and address the problems with elections administration and voting rights in the USA.
   Election administration is perhaps the most important function performed in the United States.  Yet as it has becoming increasingly clear after the 2012 elections, even after all the reforms that have been undertaken in the last 20 years, that the time has come to create a national law to regulate federal elections in the United States.
    The constitutional framers largely left to the states the authority to determine voting eligibility and the administration of elections.  Nowhere in the Constitution does it prescribe a right to vote, even for federal offices.  Originally senators were chosen by the state legislatures, and the president by the Electoral College and electors were also chosen by state legislatures.  The Seventeenth  Amendment in 1913 gave the people the right to vote for Senators.  In 1941 the Supreme Court in United States v. Classic ruled that Article I, Section 2 of the Constitution gave individuals the right to vote for members of Congress, and in the 1964 Reynolds v Sims it declared that the First Amendment established a right to vote in state and local elections.  But to this day, the Court reminded us in 2000 in Bush v. Gore, there is no right to vote for president and state legislatures could decide to make the direct selection of electors instead of letting voters do that.
    But even with these changes, elections are still run as local affairs.  States still get to determine eligibility to vote, as well as the time, place, and manner for running elections.  Across the country states vary in their voter eligibility and election administration practices, designating varying standards for who gets to vote, the technology used, whether absentee or early voting is permitted, and how ballots are counted and elections run.  The result has been far from specular.
    Over time states have adopting varying practices to franchise or disenfranchise voters.  Despite the passage of the Fifteenth Amendment to grant freed male slaves the right to vote, Jim Crow laws in the south prevented most African-Americans from voting until the passage of the Voting Rights Act in 1966.  Women were denied the right to vote until the Nineteenth Amendment, and various other techniques were deployed by states to limit franchise.
    Yet Congress is not without authority to act.  While Article I, Section 4 of the Constitution  gives states the authority to regulate the time, manner, and place of elections, it also gives Congress the power to make laws to change these regulations, but as the Supreme Court said in  Oregon v. Mitchell (1970), that authority extended only to federal elections.  The Voting Rights Act was one of the first modern federal efforts to regulate elections, imposing standards upon specific states that discriminated against minorities.  The VRA has largely been a success in extending franchise rights.  In fact it is so successful that the Supreme Court this year may well declare portions of it unconstitutional because its need is allegedly past.  The 1993 Motor Voter Act was a major boom  to voter registration.
    But the 2000 election dispute in Florida changed everything.  While the Bush v. Gore case revealed significant problems in application of election official discretion in ascertaining voter intent,  the American public witnessed instances of politicized election administration, bad ballot design, and a host of technological and other allegations of voter suppression.  To remedy some of these problems the 2002 Help America Vote Act made money available to states to upgrade voting technology, and it also established the Election Assistance Commission, yet these changes were not enough. The 2004 elections witnessed significant allegations of voting irregularity and sloppy administration in Ohio and across the country, and in the last decade a wave of voter Identification election has been imposed in many states, even though the evidence of voter fraud is negligible.  Pre-election activity, including in 2012 , is marked by litigation and lawsuits, and charges that states continue to set confusing rules up to vote and run elections persist.
    The time for federal action is now.  The public administration of federal elections and the right to vote should not vary across states.  There needs to be uniform rules regarding voter eligibility  and qualifications, ballot design, technology, and discretion ascertaining voter intent.  A Federal Uniform Voting Rights Act would set national standards for voting and administration of federal elections, thereby effectively defining the standards for state and local ones too.  Such a law would  perhaps also enhance the professionalization of election administration, moving it away from largely party and partisan control to field with educational training and requirements.    With uniform standards votes could move from state to state and not worry about confusing registration issues, and the concerns about fraud would diminish with the development of national voter databases. Deployment of other national standards for voting machines, or the introduction of new technologies such as Internet voting could bring the administration of elections out of the eighteenth and into the twenty-first centuries.
    The ideals of American democracy are too important to be left to the current federalism of election rules and administration.  Election laws are the rules that make democracy work and the current rules and practices have demonstrated their inability to serve the important needs they are supposed to address.

   

Beyond Citizens United: Fixing the American elections system

Note:  Today's blog originally appeared in Minnpost on November13, 2012.

In post-election statements, both Sen. Amy Klobuchar and Rep.-elect Rick Nolan called for campaign finance reform. They singled out the role of big money and negative ads in campaigns, demanding among other things, an overturning of the Supreme Court's 2010 Citizens United v. Federal Election Commission. Campaign-finance reform is needed, but the American election system is broken, demanding even broader changes beyond reversing Citizens United. These changes extend to the role of money in politics, voting, and the quality of political debate and information.

Money and politics

Citizens United is one of many Supreme Court decisions that try to define the role of money and speech in American elections. Concern that money corrupts the political process goes back to the 19th century. Beginning in 1907 with the Tillman Act, federal law made it illegal for corporations to make direct political contributions to candidates for federal office. In 1947 the Taft-Hartley Act did the same for labor unions.

Many states have similar laws. The concern, especially with corporations, as Chief Justice Rehnquist once stated in First National Bank of Boston v. Bellotti (1978) is that the government might reasonably fear that a  "corporation would use its economic power to obtain further benefits beyond those already bestowed."  The task is now to prevent the conversion of resources amassed in the economic marketplace from corrupting the political marketplace.

What Citizens United actually did was to say that corporations (and unions) have a First Amendment right to make direct expenditures from their treasuries to make independent expenditures to advocate for the election or defeat of a candidate for office. The decision did not overturn the ban on direct contributions to candidates, but it overturned laws  that made it illegal for corporations to spend money independently to support a candidate for office.

Is Citizens United responsible for the $6-8 billion election cycle spending that just concluded? Yes and no. Prior to Citizens United, corporations already had lots of ways of getting around the law. They could do issue ads that attacked candidates but did not expressly urge their election or defeat. They could set up political action committees. They could fund get-out-the-vote, voter-registration, and voter-education programs. Individual corporate officers could give money. There were many ways around the law.

Citizens United did not necessarily mean that more money would go into elections; instead it meant that money would enter in different ways and with less transparency. Given that it was illegal for corporations to make express advocacy independent expenditures before Citizens United, when the Supreme Court declared that ban unconstitutional there were no laws in place to force corporate disclosure.  The intensity and closeness of the 2012 elections probably explains how much money was spent; Citizens United tells us about why, in part, we do not know who spent it.

In addition the Citizens United decision was built upon in a 2010 Court of Appeals decision, SpeechNow.org v. Federal Election Commission, that allowed for the creation of Super PACS that could accept unlimited political donations from corporations, unions and individuals to engage in independent expenditure express advocacy. With limited disclosure and often innocuous sounding names, these groups provided another outlet for money.

Finally, the transparency problem with money was exacerbated in 2012  by the misuse and hijacking of nonprofits. Basically, there are two types of nonprofits under the federal tax code. Entities classified as 501(c)(3)s are prohibited from engaging in partisan politics as a condition of donations to them being tax deductible. But contributions to nonprofits classified as 501(c)(4)s are not tax deductible, and they may engage in partisan politics  and endorse candidates for office so long as that political activity is not a major purpose of their activity.

There is extremely limited disclosure required on nonprofits in terms of donors, and there are no contribution limits to them. Corporations and wealthy donors used them as laundering mechanisms to escape disclosure requirements.

So what could be done on campaign finance? More disclosure is needed and efforts to pass the Disclose Act to force that is a first step. But partisan opposition to it in Congress has prevented that. Overturn Citizens United? That requires a constitutional amendment and that means two-thirds vote of both the House and Senate and ratification of three-fourths of the states. Little chance there. The Supreme Court could reverse itself, but unless President Obama can replace a conservative Supreme Court Justice, that option, too, looks unlikely.

Yet President Obama could act on his own to mitigate some of the problem. He could issue a procurement rule barring corporations from making express advocacy independent expenditures  above a certain dollar amount as a condition of bidding on federal contracts.  Here the issue is about conflict of interest.

Additionally, he could direct the Securities and Exchange Commission to engage in rule-making to require shareholder assent before expending money for political purposes. The issue here is protecting the First Amendment rights of shareholders not to have their money spent for political causes they do not support.  This rule would parallel those already found with unions and their members.

Third, Congress could change the tax code to require more disclosure for nonprofits that use money for political purposes. The president alone might also be able to direct the IRS to do that.

Voting

The defeat of the voter ID amendment is a rare victory in the battle to fight the second great wave of disenfranchisement in American history. The first wave was after the Civil War and when  Reconstruction ended. It ushered in the Jim Crow era and a 100-year effort to prevent African-Americans from voting.

Voter ID, based on the erroneous claim of widespread voter fraud, is one part of this disenfranchisement. Across the United States in the last few years many states have enacted voter ID and other laws such as cutting back on early voting and restricting voter registration  drives. Pre-election voting-rights litigation was significant in 2012. The United States effectively has 50 different state laws regarding voting. Were it not that Obama won the 2012 presidential race so decisively, problems this year in Florida would be holding up the election results yet again.

One solution is to use federal voting rules and procedures. The Constitution gives Congress the authority to regulate federal elections. Congress could construct rules regarding voter eligibility, ban voter ID, allow for early voting, or whatever else it wants to do. Uniformity and fairness across states in elections too.

Political speech and rhetoric

The final critique is that political campaigns have become too negative and nasty. Maybe. They are tame by comparison to the 19th century. But there are limits regarding what can be done to regulate political speech.  The Supreme Court correctly in its 1964 New York Times v. Sullivan gave broad First Amendment protection to speech that criticizes public officials and candidates. A free society should encourage robust political debate, and it should be the people and  not judges or government officials who decide what is true. Moreover, attack ads will continue to be used so long as they are effective and voters respond to them.

The bigger problem now is that voters have developed partisan choices when it comes to the consumption of news. The world is increasingly divided between FOX and MSNBC. It seems all of us want our own truth now. The rise of the new and social media has done little to encourage voters to seek out alternative information.

One solution to this would be to reinstate the fairness doctrine and vigorously enforce the equal time doctrine, requiring television and radio to offer opposing viewpoints. The public has a First Amendment right to a diversity of viewpoints and broadcasters, as a condition of holding a license, should be required to honor this.

Overall, Klobuchar and Nolan are correct that the American elections system is a mess.  But the causes are varied and the fixes more complex than they realize.

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.”

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.

Voter ID: A Costly, Unnecessary Abuse of the Constitution

This blog appears in the August, 2012 Minnesota Bench & Bar Journal.

From its 1858 statehood Minnesota has been a leader in voting rights.  We take pride in the fact that Minnesota leads in the nation in voter turnout, and it has a history and bipartisan tradition of encouraging citizen engagement.  Minnesota is also a state of common sense, embodying a pragmatic “If it ain’t broke don’t fix it” mentality.  It is for these two reasons and the cost borne to the state and individuals that the proposed amendment requiring voter identification at the polls should be rejected.

Minnesota’s Constitutional Tradition

Minnesota in its constitutional convention was one of the first states to debate voting rights for African-Americans.  Even though both the United States and Minnesota supreme courts have declared voting to be a fundamental right,¹ it is textually explicit in Article VII of the State Constitution. Among the 211 previous attempts to change Minnesota’s constitution, 12 adopted amendments have addressed individual rights, with five of them seeking to expand voting rights.  In the entire history of the state only one constitutional amendment, in 1896, restricted voting rights.  Here it limited the practice in place that allowed aliens or noncitizens to vote in Minnesota.  Minnesota’s tradition then is one of expanding the franchise, not limiting it.

The voter ID amendment is an abuse of our constitution and tradition.  Minnesota’s Bill of Rights offers more protection for individuals than found at the federal level. We protect freedom of conscience and privacy more vigorously than does the U.S. Bill of Rights. We also protect some rights—hunting and fishing, and peddling farm produce—that are not found at the federal level. We have constitutionalized our commitment to education and support for the environment and the arts. This reflects our culture and who we are.

The voter ID amendment wrongly sidesteps the political process and challenges our state identity. Instead of trying to use the normal legislative process, it is an effort to bypass it and our legacy.

The Absence of Fraud

Some will claim that voter photo identification is needed to prevent voter impersonation and fraud at the polls. The reality is that in-person voter fraud is so insignificant in Minnesota and around the country that one has a better chance of being struck by lightning than having it affect the outcome of an election.³

What evidence does exist documenting voter fraud?  Nationally, the three most persistent claims of voter fraud come from the Wall Street Journal’s John Fund,⁴ a report from the Senate Republican Policy Committee in Congress,⁵ and the Carter-Baker Report.⁶ None of these studies have documented provable and significant voter fraud.  The Carter-Baker report asserts that: “[W]hile election fraud is difficult to measure, it occurs.”⁷ Proof of this assertion is citation to 180 Department of Justice investigations resulting in convictions of 52 individuals from October 2002 until the release of the report in 2005.⁸ Yet while the Carter-Baker Commission called for photo IDs, it also noted that: “[T]here is no evidence of extensive fraud in U.S. elections”⁹ As with other studies, absentee voting is singled out as the place where fraud is most likely to occur.¹⁰ 

As the Brennan Center stated in its analysis and response to the Carter-Baker call for a voter photo ID: “None of the Report’s cited examples of fraud stand up under closer scrutiny.”¹¹ Even if all of the documented accounts of fraud were true, the Brennan Center points out that in the state of Washington, for example, six cases of double voting and 19 instances of individuals voting in the name of the dead yielded 25 fraudulent votes out of 2,812,675 cast—a 0.0009 percent rate of fraud.¹² Also, assume the 52 convictions by the Department of Justice are accurate instances of fraud.  This means that 52 out of 196,139,871 ballots cast in federal elections, or 0.00003 percent of the votes, were fraudulent.¹³ The chance of being struck by lightning is 0.0003 percent. 

Similarly, Minnesota is devoid of significant in-person voter fraud.  The state has witnessed two close elections and recounts in 2008 with the senate contest between Al Franken and Norm Coleman and then in 2010 with Mark Dayton and Tom Emmer.  In both cases the recounts failed to show any real in-person voter fraud or impersonation at the polls.  Even in its oral arguments before the Minnesota Supreme Court in Coleman v Franken,¹⁶ Coleman’s attorney Joseph Friedberg, when asked by a Justice whether widespread voter fraud existed, conceded that it had not.

The Minnesota Majority has alleged many instances of voter fraud over the years.  Mike Freeman, Hennepin County Attorney, has investigated many of them in his jurisdiction.  He found none involving in-person voter fraud.  Yes, 40 ineligible felons voted, but voter ID would not prevent that because drivers’ licenses do not indicate criminal records.¹⁷ In 2008 seven voter-impersonation charges were investigated by Minnesota county attorneys; there were no convictions.¹⁸

Some election fraud may exist, but it is de minimis in Minnesota.  It takes place not at polling places but as studies have repeatedly pointed out, in the absentee voting process which will not be addressed by voter ID.

The Costs of Voter ID

What are the costs associated with adopting the amendment?  Minnesota will spend millions of dollars issuing identifications for those who currently lack them.  The Secretary of State has estimated that 215,000 Minnesota adults lack a state-issued ID. Minnesota and local governments will spend millions of dollars to implement the new ID requirements. Additionally, individuals will bear costs to secure these IDs.  In Weinschenk v. State¹⁹ the Missouri Supreme Court noted that approximately 3 percent to 4 percent of the state population lacked an appropriate identification to vote under its voter ID law.  It found that for many the costs of getting the ID were significant, even if the state issued it for free.  Many individuals lacked state birth certificates, or were born out of state, or naturalized, and they lacked the required documents to secure the state ID.  Many of these documents cost money, in addition to the time and ability to navigate the bureaucracy to obtain them.²⁰  For these reasons, the Missouri Supreme Court invalidated its voter ID law under its state equal protection and right to vote clauses.

Many of the individuals who lack valid IDs are the elderly in nursing homes, recent immigrants to the state, students away at school, and those who have recently moved into a new home or apartment.  Imagine trying to get your elderly mom or grandmother out of a nursing home and into a state driver’s license office to get new photo identification.  The costs to these individuals may be enough to disenfranchise or discourage them from voting.

Legal Issues

Finally there are the legal issues surrounding voter ID that could delay implementation for years and cost million to defend.  The Supreme Court did uphold Indiana’s voter identification law, but it was a facial challenge.  The Court did note that as applied challenges are possible if the law is discriminatory. In Minnesota, challenges to the voter ID amendment could range from violation of the single-subject rule²¹ to concerns over vagueness in determining what constitutes a “valid” photo identification as described in the amendment’s description.

Conclusion

The voter ID amendment is bad public policy.  It runs against the grain of the state’s constitutional tradition of expanding rights and encouraging voting, it is not needed given the absence of significant in-person fraud, and it will be costly to the state and citizens.

Notes

¹ Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966); State ex rel. South St. Paul v. Hetherington, 240 Minn. 298, 303, 61 N.W.2d 737, 741 (1953).

² “Wisconsin Recall Exit Polls: How Different Groups Voted,” New York Times (06/05/2012) http://tinyurl.com/7h7oey8 (site last visited on 07/23/2012).

³ David Schultz, “Less than Fundamental: The Myth of Voter Fraud and the Coming of the Second Great Disenfranchisement,” 34 William Mitchell L. Rev. 484 (2008); David Schultz, “Lies, Damn Lies, and Voter IDs: The Fraud of Voter Fraud,” Harv. L. & Pol. Rev. On-line (03/17/2008). Available at http://tinyurl.com/28j5qcq (site last visited on 07/23/2012).

⁴ John Fund, Stealing Elections: How Voter Fraud Threatens Our Democracy. San Francisco: Encounter Books, 2004.

⁵ United States Senate Republican Policy Committee. “Putting an End to Voter Fraud” (2005). Document located at http://rpc.senate.gov/_files/Feb1504VoterFraudSD.pdf (site last visited on 01/02/2012).

⁶ Center for Democracy and Election Management, American University.  “Building Confidence in U.S. Elections: Report of the Commission on Federal Election Reform” (2005), [hereinafter Carter-Baker Commission].  Document located at http://www.american.edu/ia/cfer/report/full_report.pdf (site last visited on 07/23/2012).

⁷ Id. at 45.

⁸ Id.

⁹ Id.

¹⁰ Id. at 46.

¹¹ Wendy Weiser et al., Response to the Report of the 2005 Commission on Federal Election Reform. New York: Brennan Center for Justice (09/19/2005), p. 9 (emphasis omitted). Available online at http://tinyurl.com/d7vamom (site last visited on 07/23/2012).

¹² Id.

¹³ Id. at 10.

¹⁴ 553 U.S. 181 (2008)

¹⁵ Indiana Democratic Party v. Rokita. 2006. 458 F.Supp.2d 775, 792 (D. Ind. 2006).

¹⁶ 767 N.W.2d 453 (Minn. 2009).

¹⁷ Mike Freeman, “Hennepin County Attorney:  Historically We Expand Voting Rights,” Star Tribune (02/20/ 2011).

¹⁸ Jay Weiner, “Voter ID issue advances at Capitol, but facts continue to get in the way,” Minnpost, located at http://tinyurl.com/7fthfpg (04/25/2011) (site last visited on 07/23/2012).

¹⁹ 203 S.W.3d 201 (Mo. 2006).

²⁰ Id. at 214-15.

²¹ Minnesota Constitution, Article IV, section 17:  “No law shall embrace more than one subject, which shall be expressed in its title.”

Why sloppy drafting will kill the photo-ID amendment

 Today's blog appeared in the Community Voices section of Minnepost on June 21, 2012.

Whatever the merits of the Minnesota voter photo-identification amendment, chances are that it provisions will not take effect soon, if at all, even if adopted by voters this November.

The reason is not that it is a bad bill, which it is, or that it will do little to combat the virtually nonexistent in-person voter fraud in the state, which is also the case. Instead, the amendment's authors did such a horrible job of drafting it that either the Minnesota political process or the courts will prevent it from ever going into effect.

Criticism of the voter-ID amendment has centered on the issues of fraud, disfranchisement and cost. Critics contend that it is a solution in search of a problem. Two major recounts have demonstrated that in-person voter fraud is de minimis and that what little that does exist will not be remedied by photo identification.

Additionally, the argument is that the photo-ID requirements will disenfranchise many populations, such as the elderly, students, the poor, and people of color.

Finally, critics assert that the photo ID will cost the state and local governments millions to administer, while also inflicting personal costs on individuals. All these are valid criticisms, but none of these speaks to the problems with the amendment that will prevent it from going into effect.

The single-subject rule
Assume the voter-ID amendment does pass this November, what then? The first major defect is that it violates the single-subject rule. Article IV, section 17 of the Minnesota Constitution states: "No law shall embrace more than one subject, which shall be expressed in its title." Minnesota, similar to what is found in approximately 40 other states, mandates that a specific bill or law include only one subject. This rule also applies to constitutional amendments in Minnesota.

Courts across the country have taken an aggressive position in recent years applying the single-subject rule, especially to ballot propositions and constitutional amendments, to invalidate measures voted on by the people. The reason is simple: Voters should not be forced to vote yes or no on ballot propositions that contain more than one subject, especially if they object to one of the provisions. Imagine a constitutional amendment asking voters "Should the mosquito be named the state insect and abortion banned?" I may oppose abortion or dislike mosquitoes and forcing a yes or no on the entire proposition makes it difficult for voters to express their true preferences.

Consider the voter ID proposal language put before the voters: "Shall the Minnesota Constitution be amended to require all voters to present valid photo identification to vote and to require the state to provide free identification to eligible voters, effective July 1, 2013?" This ballot question has two subjects: One refers to presentation of a valid photo ID and the other to requiring the state to provide free identification.  Conceivably, a voter could favor presentation of voter photo ID but not providing free identification, or vice versa.

In the last few years in cases such as Unity Church of State Paul v. Minnesota (2004), and Associated Builders and Contractors v. Ventura (2000), the Minnesota courts have aggressively enforced the single-subject rule, and there is no reason to think they will not do so here. Thus, even if the voters approve this amendment, it is likely the amendment  falls to the single-subject rule.

But backers of the amendment were stuck. Courts across the country have invalided voter identification bills under state or federal constitutional clauses because they did not provide for free identifications. This happened, for example, in Georgia. Voter-ID supporters thus had to attach this provision to the constitutional amendment. Were this ordinary legislation maybe the free ID would have survived single-subject, but as a constitutional amendment it creates problems for voters in making their choices.


The enabling problem
Again assume voter ID passes this November. The amendment requires additional enabling legislation to go into effect. Unless the Republicans obtain veto-override majorities, Gov. Mark Dayton can simply veto any enabling legislation, rendering the voter ID amendment unenforceable. Assume the DFL takes back one house of the Legislature; it can refuse to act. In either case, the amendment is dead. Assume the DFL takes back both houses; then either the Legislature does nothing or it enacts  enabling legislation so watered-down that it meaningless.

GOP Rep. Mary Kiffmeyer contends no enabling legislation is needed, since the constitutional amendment is self-executing or self-enforcing. She is wrong.

First, in Freeman v. Goff (1939) the Minnesota Supreme Court stated that constitutional provisions are presumed directory or mandatory. The presumption is that they must be enforced as described in the amendment unless there are other reasons to think not. But the voter-ID amendment cannot be enforced as written without enabling legislation explaining critical terms such as what constitutes a "valid" photo identification. The vagueness of this word dooms enforcement, leaves public officials open to charges of abuse of discretion, and raises potential due-process and equal-protection violations if they simply try to enforce the requirements as written.


The precedents
More important, repeatedly Minnesota courts have long declared in cases such as  Willis v. St. Paul Sanitation Co. (1892), State v. Kiewell (1902), State v. McColl (1914), Aase v. Langston (1928),  Payne v. Lee (1946), and In re Wretlind (1948) that: "Prohibitive clauses of the constitution such as the due process clause are self-executing and require no legislation for their enforcement."

By that, generally Bill of Rights provisions that limit the state and protect individual liberties are self-enforcing, whereas provisions that direct the state to do something require enabling legislation. In the case of the voter-ID amendment, at the very least the state is required to provide free identifications, necessitating enabling legislation defining what is considered a valid ID and how it will be distributed.  The same is true when it comes to the first part of the amendment, requiring presentation of a "valid" photo identification. Again, what constitutes valid? This, too, requires enabling legislation to clarify and implement.

Overall, the potential political landscape after the November elections, as well as firmly entrenched state and federal constitutional principles, are enough to bog down and prevent enforcement of the voter-ID amendment for years even if it does pass this November. Millions of dollars will be wasted on this amendment in an effort to pass, defeat, and litigate it, and taxpayers will be angry no matter the result.

When that happens, supporters of the amendment can blame themselves and the authors of it for sloppy drafting that doomed the amendment from the start.

Progressive Politics in the Age of Conservatism

Face it–progressive politics in America looks dead.

No, not socialism, that’s been dead almost from the beginning in the United States. Although during the height of the recent recession a Rasmussen poll found only 53% of the population lacked preferred capitalism to socialism. Yet there generally seems little support for workplace democracy and significant public ownership of state owned enterprises that are profitable and run for the benefit of the public. America’s version of government ownership is to take over ailing and unprofitable enterprises such as the auto industry or banks, pump billions if not trillions of public dollars into them, and then return them to private control just as they become profitable again. This is not socialism–it is corporate welfare.

The progressive politics that looks dead is good old-fashioned economic liberalism. This is not Bill Clinton liberalism that supported NAFTA and welfare reform and which Mitt Romney recently warmly embraced as the kind of Democratic Party politics he liked. Instead, the progressive politics that appears dead is that of Lyndon Johnson, John Kennedy, Franklin Roosevelt, and even Teddy Roosevelt. It is about the Great Society and the New Deal. It is about redistributive politics that sought to raise those at the economic bottom, narrow the gap between the rich and poor, and wrestle control of political power in the United States from corporations and plutocrats. It was a commitment to believing that the government had an important role in make sure we had a nation that was not one-third ill-fed, ill-clothed, and ill-housed, that kids should not go off to school hungry, and that corporations should not have the same rights as people.

But if Bill Clinton’s presidency did not kill off this type of progressive politics, surely Barack Obama has.  If Obama did not do it directly, he did so indirectly with the 2010 backlash against him that has done more to kill progressive politics than can be imagined.

Look at where American politics is today. A 2009 Gallup poll pegged 40% of the population as describing themselves as conservative, nearly twice the 21% labeling themselves as liberal.  In 2010 the numbers were 42%-20% conservative and liberal, and one can only speculate what they are today after the November, 2010 electoral rout of Obama and the Democrats. Since then Republicans have  taken effective control both in Washington, St. Paul, and across the country. Obama is practically immobilized by the TEA Party, Mark Dayton gets nothing his first year in office then supports corporate welfare for the billionaire Vikings owner.  Across the country in places such as Wisconsin Governor Walker stomps on union rights and may well be the first governor in history to survive a recall election. Yes unions did win some victories in Indiana and elsewhere, but they are on the defense.

Progressives are on the run everywhere. It is not just on matters of public policy such as with taxes, government regulation, and health care, but also in the rhetorical battle for the hearts and minds of the people. You can’t even call yourself a liberal anymore without being red baited. Thus the reason for switching to the term progressive. Conservatives have successfully labeled as left or socialist anyone who does not agree with them. During the Republican primaries Bachmann called fellow party members “frugal socialists.”

Watch cable news (not just FOX) or surf the web, crack pop conservative ideas dominate. Ron Paul pleads for a return to the gold standard, Michelle Bachmann blames Obamacare and Wall street reforms for the crash in the economy (even though neither have really taken effect for the most part). The recession of 2008 is the fault of the government and not greedy bankers and speculators, Keynesian economics to stimulate the economy is wasteful, consumer protection is bad for business, and the Supreme Court’s Citizens United expanding corporate free speech rights to dump unlimited money into the buying of elections is good.  Oh, and vaccines cause mental retardation and global warming does not exist. Main stream media seems afraid to put real progressives on the air and what passes as progressive on MSNBC is watered-down and defensive.

How did it happen?  There is no one cause but there are several reasons. First, what Obama and progressives have failed to do is craft a narrative supporting their views. Tea Party activists and conservatives have the narrative of individual freedom–markets are good and government is bad. Government suppresses personal freedom and markets promote it.  Never mind that corporations tell more people what to do with more of their life at work than the government ever does or could. That’s corporate freedom. Conservatives have made free choice their buzz word and equality a dirty one.  Progressives have no overarching rhetoric and narrative to support their world view. “Hope” and “change” may be great election slogans but they do nothing for governance. The closest one has to a progressive narrative out there is from Occupy Wall Street about the “other 99%.” Yet OWS is so fragmented it lacks a central policy message upon which one could govern. Progressives need a winning narrative that appeals to Americans and which dictates a governing philosophy.

Second, Obama was not really a liberal but his rhetoric looked it. He ran promising change. The reason why so many are disappointed in him is not that he was too far left but that instead he failed to deliver on his lofty promises. At inauguration Obama had a window to change America but he flinched. Carpe diem was not his motto.

Third, progressives lack guts to fight. Look at Obama last year during the debt deal stand off or Dayton and the government shutdown. Both finally caved in. Why? Democrats (and one should not confuse the party with progressivism) believe that they are the caretakers for government. They believe that they need to be responsible and not run the risk of shutting the government down for fear of how it would ruin the economy or hurt people. But conservatives know this and take advantage of the Democrats willingness to blink. But by blinking the Democrats are screwing over poor people and the economy slowly by giving ground one inch at a time and they seem unable to recapture it. Until Democrats fight and show conservatives they are willing to shut the government down and hold conservatives responsible they will never win. Missing is the courage of their convictions.

Fourth, conservatives understand how to make structural reforms and policy changes that both benefit their supporters and enhance their power. Tax cuts and cuts in regulation are simple ways to benefit supporters, but there is more. Voter ID disempowers their opposition, attacking union rights undercuts labor support for Democrats and opposition to business in the workplace, and gutting regulations on money in politics strengthens corporations and rich individuals. Obama’s biggest mistake in his first two years was his failure to act accordingly. Instead of health care reform he should have used his sizable majorities in Congress to support the Employee Free Choice Act to strengthen unions, adopt national legislation banning voter ID and permitting day of election registration in federal elections, and adopting real Wall Street and bank reforms that would have limited their power, including reauthorizing Glass-Steagall.

Moreover, Obama should have first done something to help homeowners and workers get their houses and jobs back. Reward supporters up front and they are with you for life. Furthermore, when the Supreme Court issued Citizens United Obama could have issued an executive order barring corporations from bidding on federal contracts if they make political expenditures.   Or he could have ordered the Securities and Exchange Commission to issue rules requiring shareholder assent before companies make political expenditures. Finally, to break the back of conservative news he could have embraced a reinstitution of the Fairness Doctrine to require the media to offer diverse view points. But he did not do any of this? Why?

This is the last problem. Democrats now feed at the same trough as Republicans. Obama took more money in 2008 from Wall Street than any other presidential candidate in history. Democrats are increasingly as dependent on big corporate and individual donors as Republicans and just as bought and paid for.

Progressive politics is dead so long as it is married to the current Democrat Party. Progressives need their own Tea Party revolution on the left–one that engineers a new rhetoric and takeover of the party. One that is not willing to play it safe and worry that if a few Democrats lose  that means the Republicans win. It means a willingness to fight for what you believe in. This is what progressive politics needs to be in the age of conservatism. Dead men don’t fight or win.