Dayton and GOP-led Legislature should act on what works, not ideology and wishful thinking

My latest blog is an piece published in Minnpost. It can be found here.

Dayton and GOP-led Legislature should act on what works, not ideology and wishful thinking
By David Schultz | Friday, Dec. 10, 2010

Emmer Concedes: The Futility of Going to Court

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

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 He had withdrawn almost all of his frivolous and non-frivolous ballot challenges, and there appeared to be no other place to add to his totals.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

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

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

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

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

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

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

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

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

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

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

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

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

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

Politics:
The Gubernatorial Recount

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

D-E=G

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

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

Where
N= Number of ballots removed in reconciliation.

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

D-E=G
60-40 = 20

1/100 (N +G) =8770

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

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

D-E=G
50-45= 5

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

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

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

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

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

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

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

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

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

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

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

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

Spelled out in more detail:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

My Upcoming Video Chat- Online 'Seats' Available!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Why Vote. . .and How?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Poll Predictions and Calling a Winner (Dayton)

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

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

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

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

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

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

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

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

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

Thus, here is my first calculation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

14 Days to Go

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



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

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

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

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

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

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

Eyewitness to History: The Minnesota Gubernatorial Debate at Hamline

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

The Context

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

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

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

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

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

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

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

The Debate

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

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

Dayton:

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

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

Emmer:

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

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

Horner:

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

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

And the Winner Is?

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

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

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

A Tale of Two People: Tom Emmer and John Yoo

Media depictions of personalities often contrast with reality. While in some cases the camera or microphone (or now YouTube) capture who we are, often there is a contrast between our real being and how we are presented. This dichotomy came home to me recently as I thought about two individuals who I know personally–Tom Emmer and now John Yoo.

I remember in 1992 while teaching in Texas Bill Clinton had won the primaries and would be the Democratic presidential candidate. He had yet to pick a VP. My university president called me one day and asked if I would mind opening up my class to a U.S. senator who was doing a book tour and he wanted to visit a couple of political science classes. I agreed and we combined two or three classes together to create a room of about 65 students.

For the next 90 minutes the senator captivated me and students. He was engaging, funny, witting, and demonstrated a brilliance and grasp of policy issues I seldom see among elected officials. I also shook his hand, had him autograph his book. Overall, he was one of the nicest and most compelling people I had ever met. I went home, told my wife about him and said Clinton should make him VP. Clinton did that. The senator was Al Gore.

But the Gore I saw in class that day was the not same Al Gore I saw on television and as vice-president. As VP, and then presidential candidate, he was wooden, stiff, and generally failed to demonstrate any of the charm I knew he had. I often wondered and asked: “Will the real Al Gore please stand up.” There were two Gores I saw–one up close and personal–the other through the eyes of the media, and reconciling them was difficult.

I tell the Gore story because it reminds me of my personal experiences with two other people in the news.

Tom Emmer
Tom Emmer is the Republican nominee for Minnesota Governor. I will skip all the media depictions of him. Instead me let describe how I know him.

When he first got elected to the Minnesota House of Representatives he called me. I had no idea who he was and he was just starting off his political career. He wanted to meet. He told me he was interested in campaign finance reform and concerned about money in politics. He told me a story. He said he had been at some event where the conservative pro-life Minnesota Citizens Concerned for Life (MCCL) had said something to the effect that they had the votes of a whole bunch of legislators because of all of the money that had been raised or channeled to candidates. Emmer told me: “I may vote with the MCCL, but I do not like the idea that they think they can buy me with their money.” Tom was sincere, he wanted to do something about cutting off money in politics. He was told I was a past president for Common Cause and had consistently testified for Senator John Marty and others seeking to limit the role of money in politics.

Emmer asked me if I had any ideas for bills. I gave him my wish list. It included a state version of McCain-Feingold, limits on contributions to political parties, new disclosure laws, and more. Tom introduced all of the legislation. Against the wishes of the Republican majority that controlled the House and the MCCL he pushed for the bills. He fought DFL resistence too. The bills did not pass, but for at least two years he fought hard and I testified for him. His bills got farther on campaign finance than any others in Minnesota since 1994.

I have no idea where Emmer stands today on campaign finance. However, then I never doubted his sincerity on the issue.

Emmer and I stand opposite on other issues. He once supported a bill that would require the public positing of names of state judges who issue judicial bypasses for minors seeking abortions. I testified against the bill arguing that it would damage the judiciary. We also testify on opposite sides of voter photo identification bills. I mention all this because I have come to know Emmer as a person. In all the times we have worked together or opposite one another he has treated me with respect and I see something in him that does not come out in the media.

John Yoo
John Yoo is famous for being the Bush Administration attorney who penned the legal opinions for the War on Terror. He authored the critical opinions that supported presidential power detain prisoners at Gitmo without trial and to torture. In the media, he is attributed with drafting the “torture memos.”

In my own writings, including a paper at Oxford University and two scholarly articles, I criticized Yoo. He has been hammered in the media, subject to demands to prosecute for war crimes, and investigated for legal ethics violations. He is picketed where ever he speaks. He must be a monster!

I met Yoo this past Thursday at the University of St Thomas Law School. We were both invited along with others to speak and give papers at a University of St. Thomas Journal of Law and Public Policy conference on presidential war powers. The journal and conference are student operated and they did a great job on Thursday. I was privileged to be on the panel with great names. The conference was loaded with conservatives and I was the token.

There were demonstrators present in and outside. Collen Rowley, a former FBI agent featured on the 2002 Time magazine, was there to protest. Security was tight.

John and I spoke a lot that day and had lunch together. We did disagree on topics, but we also shared observations. His talk on George Washington and presidential power was terrific even if I disagreed. Finally at the end of the day we talked baseball–he a Philly fan me a Yankee–and we discussed the prospects of a 2010 repeat of the 2009 World Series.

I walked away from the day thinking how nice Yoo as a person was. I cannot explain how or why he came to his conclusions in 2002 about presidential war powers, and I will not discuss why I think his arguments were flawed. I will simply say that for the day I met him I saw someone different than I had previously read about or saw from a distance.

Demonizing Teachers: Simplistic Solutions for Education Reform (or why most policies for reforming K-12 will not make Johnny read gooder)

Barack Obama did it in a recent speech as did Tom Emmer at the Humphrey Institute. Both of them along with scores of other politicians and think tanks heap all of the failures of American education on the backs of the American teacher.

For all of them, the reason why Johnny and Jane cannot learn and why some schools are failing is that there are too many bad teachers. Variations of this argument are that unions protect bad teachers, we do not hold them accountable enough, that we need pay for performance, or that we need other measures to improve the quality of teaching. If only teachers taught better, it seems, our educational problems would be solved. This is a large part of the logic of Bush’s No Child Left Behind, a policy that Obama has largely left in place, of Minnesota’s Governor Tim Pawlenty, and of Tom Emmer who is running for governor.

Were this the cause of our educational failings it would be nice and simplistic and perhaps the solutions would be obvious. Yet educational reform is far more complex than simply seeking to hold more teachers accountable. This approach really demonizes teachers, and it misses the complex reasons for understanding why American K-12 works and fails.

I write about K-12 today for several reasons, First, education reform is front and center in the Minnesota governor’s race. The three candidates offer contrasting views on education reform with Emmer mostly taking the demonizing approach. Second, instead of talking about the horse race and polls, education policy is something worth examining. Third, I am an educator who sees the product of K-12 in my classroom. I first walked in the classroom at age 20, giving me more than 30 years of experience teaching. Unlike most college professors who have never taken education classes, I have. I originally wanted to teach high school history but changed to college. Yet I regularly visit high schools and talk to students. I have some sense and knowledge about teaching and learning.

My first observation is that demonizing teachers solves nothing except to demoralize them and drive away the best. If the focus is on attacking them, nothing will change.

My second observation is one from one of the first education classes I ever took. My teacher drew a triangle on the board and on one corner wrote school, and then home and community on the other two corners. He then said that students are educated in all three places–school, home, and community–with teachers, parents, and others all working to educate. His point was to drive home that schools and teachers at best are responsible for one-third of all the learning that takes place with students. Teachers cannot teach unless parents and other reinforce what they do and what their children learn in school. Clinton may have caught the idea of this years ago when she wrote It Takes a Village.

How can teachers be so responsible for student learning when students go to school only a few hours a day and for barely 180 days? They are being asked to take full responsibility for the success or failure of their students when they see them so little. We are perhaps asking teachers to do the impossible–to do too much–often without parental support.

My third observation is that public K-12 has to take students as it gets them. Teachers receive students at age five, and in all states of preparedness for school. As Jonathan Kozel has demonstrated in Savage Inequalities (a book everyone in America should read), we have a dual educational system in the US. If you are white, middle class, and affluent, the system works well, if you are Black, Hispanic, Indian, another person of color, or poor, the system is a failure. Child poverty is huge, many students come to school ill-clothed, ill-fed, and ill-housed. The crisis of American education is that for too many students they cannot learn because of the poverty they endure.

When in the 60s school lunch programs and Head Start began, it was recognized that kids cannot learn on empty stomachs or when for the first five years of their lives they endured poverty. One cannot compete in an educational 100-yard dash if everyone else begins the race at the starting line and you are ten yards back initially. No one, including Obama, or the major gubernatorial candidates in Minnesota, seems to recognize the real crisis is the context of race and poverty that encompass K-12. Ken Pentel, one of the minor party gubernatorial candidates, talks about this but no one listens.

My fourth observation is that teachers need to teach. They need discretion to use their skills and work with students. Too much of K-12 is prescribed by accountability tests that lead to teaching to the test and hamper the ability of teachers to do what they know to do. I find it ironic that politicians, few who are teachers, are drooling out ideas about education and why students cannot learn when they have no experience or knowledge about teaching and schooling. Ludwig Wittgenstein, a famous philosophy, once said: “That of which you have no experience you should remain silent about.” Good advise.

Finally, over the years I tell my students that learning is a cooperative venture. I will work hard but they have to do the same. The same is true for K-12. Students have to do their share, requiring parents and the community to provide the resources and encouragement to motivate students.

Thus, where should we start with real education reform?

• Address the race and poverty issues enveloping schools. Fund quality preschool (as Art Rolnick urges) and quality day care. Fully fund Head Start and address the other social needs of students.
• Lengthen the school year by considering year round school.
• Free teachers up to teach.

Finally, get elected officials out of the business of writing curriculum and tests. I grew up in New York with a Board of Regents–experts who did education standards for the schools. I find it nutty that Minnesota legislators write standards. They know little about education and the product of their efforts is a political compromise. Turn education over to those who know something about it–the teachers who you want to demonize instead of wanting to support.

Poll Wars and Horse Races: Why We Need Less Polls and More Policy

(This is my second blog today so please look at this and the other one).
So what’s in a poll? Over the last two weeks four polls on the Minnesota governor’s race have been released, offering different interpretations of who is ahead or behind. The main news story has thus become the horse race, and the results of these polls may impact the fortunes of the different candidates.

As far as I am concerned the polls have become a distraction and we would be better off if we spent less time on them and more time on the substantive public policy proposals the different candidates have broached.

Ok, I will confess to have gotten sucked into the polling frenzy. Several weeks ago I criticized one MPR-Humphrey Poll and in the last week I have also commented on the Rasmussen Fox 9, Star Tribune, and now the most recent MPR poll. Some of my blogs address polling methodology issues and last Tuesday I discussed polling issues on Fox 9 at 6PM.

All of this polling is problematic on several scores. First from a geek point of view (of which I may be one), they may be giving inaccurate pictures of the race because of their basic methodological flaws, differences, or assumptions upon which they are based. My core criticism of the most recent MPR poll–and Steve Schier has said the same thing in a recent e-mail–is that it makes assumptions about what the electorate looks like that are wrong.

I agree that there is no way that the percentage of people who identify themselves as DFLers has grown in the last few weeks, and also would argue that there is no way that the percentage of individuals who identify themselves as DFL is equal to or greater than it was four years ago. Their numbers have shrunk, as have those who consider themselves Republicans.

To state again what I have been arguing for several months, here is my estimate of the partisan alignment in MN.
DFL 35%
GOP 30%
Independence Party 10%
Unaffiliated 25%

These numbers reflect a disenchantment and disaffiliation with the two major parties and an increase in those who are unaligned. Some unaligned are fringe right and left but most are centrists or moderates.

These percentages are my best guess based on previous elections and assumptions about trends this year. They should be treated as approximates. If the polls do not accurately capture these percentages the polls will over, under, or misrepresent candidate strength and support.

Moreover, to be accurate, polls also need to weigh other issues such as clarify who is likely to vote, balance among critical subpopulations such as Iron Rangers, suburbanites, and those in Minneapolis and St. Paul, and then give a better read on who the swings are. Minnpost pieces have done a good job recently discussing some of these issues.

However, beyond these geek issues, there are two other problems with the polls. First, they have come to replace substantive coverage of the three candidates. We no long hear of where candidates stand on jobs, education, or the deficit. This displacement of substantive policy with political strategy has a place, but it should be limited. Voters are not well served with this focus. Second, if voters are simply making their decisions based on polls this is not good. Should Tom Horner be judged as a contender based simply on how he is doing in the polls or should he be judged by the merits of his proposals? The same should be asked of Mark Dayton and Tom Emmer. The question that should be asked is not “Can you win based on the polls?” but “What do you plan to do if elected governor?”

On the Horn(er) of a Dilemma: The Fading Prospects of a Third Party Governor in Minnesota

It looked all so promising only two weeks ago. Momentum and buzz suggested Tom Horner was gaining ground and he had a real chance to be governor. Polls showed strong gains, he was ahead of where Jesse Ventura was in 1998 at this time, and rumor had it he was racking in piles of money. Horner, a former public relations person, also knew how to package his statements for the media. It all looked so good.

However, I think the window of opportunity he had has closed. Why?

First, think about the polls. Two recent polls, one last Friday by Fox 9 and Rasmussen, and then Sunday by the Star Tribune, point in the same direction. In the Fox 9 poll, Horner initially looks good, polling 18%. He gets the same 18% in the Star Tribune Poll. But then Fox 9 throws in “leaners,” asking people who they are leaning toward, and Horner drops to 9%. This is not good news.

If Horner has momentum, he should have more than 18% when the leaners are added. Instead, his 18% is cut in half. When push comes to shove, voters are leaning toward Dayton or Emmer and not Horner. This is a sign of political polarization and not a good sign for a third party candidate.

More bad news. Depending on the poll read, both Dayton and Emmer are holding their bases. About 75-80% of DFLers and GOPers are supporting their candidate. Additionally, the Fox 9 poll shows Dayton grabbing far more of the moderate vote than Horner. The latter is especially troubling for Horner. Both the Fox 9 and Star Tribune polls show 27% and 28% of the state respectively not aligned with either of the two major parties. One cannot assume all of these people are moderates but many are. Horner needs to win his base Independence Party vote (I assume this to be about 8-10%), win the majority of unaligned or unaffiliated voters, and pull disaffected voters from the two major parties. However, the polls do not support that happening.

The simple answer to explain Horner’s fate is that he is no Jesse. Jesse was a politainer, a celebrity politician-entertainer (thus politainer) who could get media attention by just walking down the street. He ran during good times in MN with a $4.5 billion state surplus and 2.2% unemployment. He did not look like Skip Humphrey and Norm Coleman who looked alike and were tired and boring career politicians. Jesse was fresh and plain talking. When he won, as one of my friends once said, it was with 37% of the state giving the major parties the middle finger. Things were going well in the state so what the heck, take a chance.

Now the state is almost $6 billion in the hole and with 7% or so unemployment. Horner looks no different than Dayton and Emmer; all three are political insiders who look and sound boring. Horner gets no instant media attention by who he is. He needs to manufacture it or buy advertising.

Here is the horn(er) of the dilemma. Horner needs media attention to get his message out. He can only do that with money. He can only raise money if he lets people know he is running and what his message is, however he needs money to do that. Horner is trapped in a cycle and he may not be able to get out of it.

But not being Jesse and not having money is only part of the problem. MN’s flirtation with third party politics runs in cycles. Third party candidates do well when the state is economically doing very well or very badly and there is high disenchantment with the major parties. Think Floyd Olson (Farmer-Labor Party elected during prohibition) and Ventura during the flush times of the 90s.

These conditions exist now. But two factors mitigate against a third party now.
First, Florida 2000. The lesson many in MN and nationwide draw from Florida 2000 is that a vote for Nader is a vote for Bush. Both parties learned the message that supporting a third party candidate may help the candidate you least like. That message was again reinforced in the 2006 Franken, Coleman, Barkley senate race in MN.

Second, the 2002 plane crash of Paul Wellstone reinforced the political polarization of that begin with Florida 2000. Prior to the crash third party candidate Tim Penny was leading or tied for lead for governor. After the crash he faded fast and finished a distant third. That crash, chats that Norm Coleman was an accidental senator, the debacle of the Wellstone eulogy, and Ventura’s pouting last year as governor, all came together to end MN’s most recent third party enthusiasm.
All of these factors are suggested in recent Fox 9 Rasmussen polls showing 47% of the electorate less likely to vote for a third party candidate now than in the past.

MN has a polarized electorate. The major candidates are holding their bases. The swings are not swinging to a third party. He has little money to message, and the structural dynamics do not favor a third party candidate in a post Florida 2000 Wellstone plane crash era. Things do not look good for Horner and I think the opportunity to change minds is closing or has already closed.
As it stands, Horner may wind up pulling in no more than the core Independence Party vote, getting numbers similar to what Peter Hutchinson got in 2006.