Indiana Secretary of State Charles White was convicted of voter fraud, among other charges, this week for lying about this address on voter registration forms and voting in the wrong precinct. White apparently continued to use his ex-wife’s address for his voter registration after they split, in part, because he didn’t want to lose a modest town council salary for moving out of the district. As Secretary of State, White was the highest ranking elections official in the state.
Archive for the ‘Elections’ Category
There’s much speculation and debate over whether non-citizens and others who are ineligible vote in U.S. elections, but relatively few documented instances. That makes this report by a local television station in Fort Myers, Florida all the more significant. The station’s investigation uncovered nearly one hundred non-citizens who were registered to vote, and several admitted to have cast ballots. The non-citizen voters were discovered because they said to be excused from jury service due to their lack of citizenship. The question now is whether this report is symptomatic of a larger problem in Florida, if not elsewhere, or a relatively isolated problem.
UPDATE: As noted in the comments below, the station supplemented the report with the following comment on its story:
People seem very interested in which party these ineligible voters were for, so let’s look at the numbers we have. We found 87 people who said they couldn’t serve on a jury but were registered to vote. Of those:
33 were registered as Democrats (3 inactive).
25 were registered as Republicans (1 inactive).
1 was a registered Independent.
20 were No Party Affiliation (1 inactive).
8 were unknown.
It’s a small sampling, so trying to extrapolate these numbers probably wouldn’t give you any reliable statewide percentage breakdown. But that’s what the data show.
Nineteenth century phrenologists believed that they could discern a great deal about your abilities and personality by studying the shape of your skull. Today, phrenology is long-discredited. But many voters think they can judge candidates by making similar inferences from their attractiveness and other physical traits. Libby Copeland of Slate has an interesting article summarizing the growing body of research documenting this:
In presidential politics, does it help to look like Mitt Romney? Or, put another way, how much does Newt Gingrich’s face hurt him?
The answer will be disappointing to those who believe in the myth of the rational voter. Looks do indeed matter. But they don’t matter in exactly the way we thought—it’s not attractiveness alone that counts, but a cluster of traits people believe we can read into faces. It appears that voters, particularly those who aren’t paying much attention, don’t know much about politics, and don’t have strong partisan affiliations—which is to say, a solid number of Americans—operate like 19th-century phrenologists, believing on some not-quite-conscious level that that they can read a politician’s character by glancing at things like his eyebrows and jaw line.
Unfortunately, there is no reason to believe that voters are any better at discerning candidates’ likely performance in office from their faces than phrenologists were at predicting character traits based on skull patterns.
As Copeland notes, voters with low political knowledge levels are the ones most likely to base their decisions on candidates’ appearance. Unfortunately, relatively ignorant voters are extremely common. In this 2009 post, I described how appearance-based voting is a part of the broader problem of political ignorance and irrationality.
Although it has been pushed out of the US headlines by the New Hampshire primaries, radical Islamist parties just won the lion’s share of the vote in the final round of the Egyptian elections.
I wrote about why this sort of development was a likely and dangerous possibility in several posts going back to the very beginning of the “Arab Spring” (see here and here). If the Islamists consolidate power and make serious progress towards implementing their agenda, Egypt 2011-12 could easily join Russia 1917, Cuba 1959, and Iran 1979 as a classic historic example of a case where a bad regime was overthrown only to be replaced by one that is much worse. Obviously, the future course of events is far from certain. It is not yet clear how much power the Islamist parties will actually get to wield, and the larger of the two may be internally divided about its agenda. But developments to this point have been far from positive.
In every election year, politicians and pundits routinely attack negative campaigning, claiming that it is somehow inappropriate or harmful. This year, Newt Gingrich has been complaining about it especially loudly. But many others have said similar things.
As I see it, negative campaigning is just as useful and just as legitimate as the positive kind. In assessing candidates for public office, we need to know about their weaknesses as well as their strengths. When an employer chooses who to hire for a job, it would be foolish for him to consider only the fact that a given applicant is intelligent and knowledgeable, while ignoring evidence showing that he or she is, say, lazy and unreliable. The same goes for the process of hiring people for powerful political offices, which is ultimately what elections are all about.
Moreover, it’s important to remember that elections are comparative evaluations. We don’t just want to know how good Candidate A is. We want to know how he or she compares to opponents B, C, and D. In making such comparative judgments, negative information is just as important as the positive. Perhaps you think that Republican front-runner Mitt Romney has only modest strengths. But you might still vote for him as a lesser evil if you think his leading rivals are all truly awful. The same goes for the general election choice between the GOP nominee and Obama. You could end up preferring one of them to the other primarily because they seem to be a lesser evil than the alternative.
Obviously, negative campaign ads are sometimes inaccurate or misleading. But the same is true of positive ones. Candidates routinely exaggerate their supposed virtues and achievements. The reality of widespread political ignorance often allows politicians to get away with making false or misleading claims. But negative claims are no worse in that respect than positive ones.
Another common criticism of negative campaigning is that it leads voters to have a more negative view of the political process and to distrust government. Experts disagree about whether and to what extent this is true. But even if it is accurate, it may not be a bad thing. If voters have a more negative view of politicians and government, it might lead them to be more hesitant about entrusting those same politicians with ever-greater power. The dubious nature of most politicians is one of the reasons why it is important to restrict the size and scope of government.
UPDATE: I should mention political scientist John Geer’s 2006 book finding that negative ads actually give voters more useful information about candidates’ issue positions than positive ads do [HT: VC reader Joshua Spivak, who wrote a nice 2010 Forbes article describing some of the benefits of negative campaign ads].
This year’s election was supposed to be something new and different. However, Rick Santorum, the big winner in this year’s Iowa GOP primary is remarkably similar to the big GOP Iowa winner of 2008: Mike Huckabee. Like Huckabee, Santorum is a hard-core social conservative whose big government proclivities extend far beyond social issues. I covered Huckabee’s record in this December 2007 post. Santorum is remarkably similar, perhaps even worse. For the details on Santorum, see this post by David Boaz [HT: co-blogger David Bernstein], and Jonathan Rauch’s thorough review of Santorum’s 2005 book laying out his political philosophy. As Rauch noted, Santorum rejects what he once dismissed as “this whole idea of personal autonomy,” not to mention “the idea that people should be left alone.” He doesn’t just think that freedom should be heavily regulated; he’s against “the whole idea” on principle.
Santorum does have chutzpah. Despite his record, he just gave a victory speech where he emphasized that the main issue in this campaign is “freedom.” If that’s really what it’s about, Santorum’s campaign will end up the same way as Huckabee’s did. I’m no great fan of any of the other remaining GOP candidates. But none of them is as much a big government conservative as Santorum is.
UPDATE: There is one important difference between Huckabee’s success in 2008 and Santorum’s today. In 2008, Huckabee’s win seriously hurt Mitt Romney by preventing him from emerging as the main “conservative” alternative to John McCain until it was too late to stop McCain from winning the nomination. This year, Santorum’s success actually helps Romney by ensuring that his most prominent rival in the next few states will be a candidate who many Republicans see as unserious and unelectable against Obama.
UPDATE #2: Michael Tanner has more on Santorum’s big government version of conservatism here.
The Republican primary in my home state of Virginia is becoming ever more ridiculous. First, the state GOP’s byzantine signature-gathering rules prevented all but two of the candidates (Mitt Romney and Ron Paul) from getting on the ballot. Now the state GOP has decided to require all primary voters to take a loyalty oath pledging to “support the nominee of the Republican Party for president” in the fall. The pledge is not legally enforceable, but state GOP leaders hope it will deter Democrats and independents from voting in the primary. They can’t simply limit the primary to registered Republicans because Virginia has nonpartisan voter registration.
Be that as it may, the oath is still stupid. Even if you’re a hard-core Republican partisan, there are surely some circumstances where you might choose to vote for another party’s candidate, or simply abstain. What if the eventual GOP nominee has a massive scandal (e.g. – after he gets nominated, evidence emerges proving that he’s a murderer or a child molester)? What if you believe that he or she is incompetent or ideologically abhorrent?
It’s no secret that the potential GOP presidential candidates with the greatest appeal for libertarians either stayed out of the race or haven’t done very well. Mitch Daniels and Paul Ryan fall in the former category. Gary Johnson, whom I praised here, has failed to gain traction and looks like he may drop out soon. Ron Paul, of course, is still in the race. But it seems unlikely that he will improve much on his 2008 performance, when he failed to win even a single primary. And, for reasons I explained at length during the 2008 campaign, Paul has many shortcomings as a libertarian protest candidate (see also here).
Given this state of affairs, some libertarians and pro-limited government conservatives are taking another look at Jon Huntsman. Here is George Will praising Huntsman in a recent column criticizing the GOP front-runners. Athough Will is a conservative, his reasons for preferring Huntsman are all based on libertarian issues:
Jon Huntsman inexplicably chose to debut as the Republican for people who rather dislike Republicans, but his program is the most conservative. He endorses Paul Ryan’s budget and entitlement reforms. (Gingrich denounced Ryan’s Medicare reform as “right-wing social engineering.”) Huntsman would privatize Fannie Mae and Freddie Mac (Gingrich’s benefactor). Huntsman would end double taxation on investment by eliminating taxes on capital gains and dividends. (Romney would eliminate them only for people earning less than $200,000, who currently pay just 9.3 percent of them.) Huntsman’s thorough opposition to corporate welfare includes farm subsidies. (Romney has justified them as national security measures — food security, somehow threatened. Gingrich says opponents of ethanol subsidies are “big-city” people hostile to farmers.) Huntsman considers No Child Left Behind, the semi-nationalization of primary and secondary education, “an unmitigated disaster.” (Romney and Gingrich support it. Gingrich has endorsed a national curriculum.) Between Ron Paul’s isolationism and the faintly variant bellicosities of the other six candidates stands Huntsman’s conservative foreign policy, skeptically nuanced about America’s need or ability to control many distant developments.
Eduardo J. Lopez-Reyes of the Republican Liberty Caucus recently wrote his own “Libertarian Case for Jon Huntsman.” Libertarian political scientist Jason Sorens put in a plug for Huntsman back in May.
What do I think? I am not sure. Huntsman is nowhere near as libertarian as I am, and probably also significantly less libertarian than Gary Johnson. On the other hand, Huntsman is clearly much more libertarian than Mitt Romney and New Gingrich, the current Republican front-runners. And unlike several of the other candidates he seems knowledgeable and competent. I think it’s also pretty obvious that he’s more libertarian than President Obama. It’s unrealistic for libertarians to expect a viable presidential candidate who agrees with us down the line. What is realistic is seeking one who will make federal policy significantly more libertarian than it is today.
Should Huntsman reach the general election, he should also be able to well. He’s less likely to scare moderate voters than Gingrich, Rick Perry, or Michele Bachmann, and as far as I know he doesn’t have any embarrassing scandals on his record. A candidate who is scandal-free, seems knowledgeable, and doesn’t scare moderates, would have a good shot against an unpopular incumbent saddled with a bad economy.
The key question about Huntsman is whether he has any real chance of winning the GOP nomination. So far, he hasn’t done well in the polls. His big problem is that people perceive him as a liberal or moderate Republican similar to Mitt Romney, even though on most fiscal and economic issues he’s well to the right of Romney and sometimes Gingrich too. To date, Bachmann, Perry, and Herman Cain have all foundered in their efforts to emerge as the conservative alternative to Romney. If Gingrich, the current anti-Romney of the month, falters as well, perhaps Huntsman will get a shot at the spotlight. Obviously, however, time is running short for him.
Conservative columnist Rich Lowry has an interesting piece on Herman Cain’s ignorance about major public policy:
At a meeting with the editors of the Milwaukee Journal Sentinel, Cain was asked whether he agreed with Pres. Barack Obama’s handling of Libya. You would think he had been asked who is the president of Ubeki-beki-beki-beki-stan-stan, Cain’s joshing description of a prototypical gotcha foreign-policy question. What ensued was the longest five minutes of an editorial-board meeting ever.
Cain paused. Then he asked for a lifeline by trying to confirm with his questioner that President Obama supported the Libyan uprising. He started to say why he disagreed with Obama, but stopped after realizing, “No, that’s a different one.” He hesitated again. “Got all this stuff twirling around in my head,” he explained.
Cain hadn’t been asked about an obscure conflict or one distant in time. We’re not talking the War of Jenkins’s Ear or the Second Peloponnesian War. He seemed to all but have missed that there had recently been a Libyan War that had taxed the capacities of NATO, created an intense conflict with Congress over presidential war powers, teetered on the brink of failure, and divided conservatives….
His typical answer on national-security questions is that he would consult the experts, a thinly disguised dodge. What if the experts are wrong (as they often are) or disagree (as they often do)? Because Cain has no independent knowledge base or bearings, he would be entirely a creature of others on foreign policy.
It’s not as though he’s a wonk on domestic policy, either. He’s tied himself in knots on abortion, contradicted himself on an electrified border fence, and demonstrated an unfamiliarity with the basics of Medicare policy. Even on his signature issue, 9-9-9, he relies on repetition and assertion more than detailed argument.
It’s easy to find examples of Democratic politicians who demonstrate comparably egregious ignorance. But that does not excuse Cain. If you want to be president of the United States, you should have at least a basic knowledge of the issues the office is responsible for.
One can argue that Cain will simply bone up on the issues after taking office. But any such expectation is highly unrealistic. Presidents work under tremendous time pressure, especially early in their tenure, which is when they have the greatest chance of implementing major changes in policy. There is little time for study at that point. Most of the public policy knowledge a president uses in office is knowledge he brought there with him.
Cain’s defenders could also claim that his ignorance is irrelevant because, once in power, he can just rely on the advice of experts. Obviously, every president must rely on advisers to a great extent. But in order to make effective use of those experts, a president needs to have at least a basic understanding of what they’re talking about. That’s especially true in the many cases where experts disagree and the president has to decide whose advice to follow.
Cain’s shortcomings in this respect are reminiscent of Sarah Palin’s troubles in the 2008 election. There is, however, a crucial difference. Palin didn’t know that she was going to be nominated for VP until shortly before it was announced. Before 2008, she had little incentive to study national issues; as governor of Alaska and mayor of Wasilla, she only needed to be familiar with local and state policy, which by all accounts she knew reasonably well. By contrast, Cain has been running for president for many months, and presumably knew that he was going to enter the race months before then. Moreover, he also ran for a Senate seat back in 2004. So he has had far more opportunity than Palin did to study up on the basics of national public policy issues. The fact that he hasn’t chosen to do so is telling.
As in the case of Palin, there is an important difference between ignorance and stupidity. Cain is a successful business executive, and clearly has more than enough intellectual ability to understand the basics of public policy, including Obama’s Libya policy. The problem is not lack of ability, but lack of effort.
The New York Times Room for Debate Forum has an interesting symposium on the role of religion in presidential elections. In his contribution, polling expert Andrew Kohut cites a 2007 Pew survey showing that atheism is viewed more negatively by voters than virtually any other possible trait of a presidential candidate. A whopping 63% of respondents said they would be “less likely” to vote for a presidential candidate who “doesn’t believe in God” (3% said they would be more likely_. This easily exceeds the percentages who say they would be less likely to vote for a candidate who never held elected office (56), a Muslim (46), a homosexual (46), a person who had “used drugs in the past” (45), or a Mormon (30). Opposition to female, black and Hispanic candidates is several times lower (ranging from 4 to 14 percent, though some racists and sexists probably hid their true attitudes from the pollster). A more recent 2011 version of the same survey gets very similar results when it comes to atheists (61%), though there is less hostility towards gays (33%).
By contrast, 39% in the 2007 survey said they would be more likely to vote for a Christian candidate, compared to only 4% who said they would be less likely. However, many voters apparently don’t want a candidate who seems too closely associated with religion. The same poll found that 25% would be less likely to vote for a candidate who has been a minister, while only 15% said they would be more likely to support him. The questions about Christians and ministers were not repeated in the 2011 study.
The data cited by Kohut reinforce other evidence showing that atheists are by far the most widely hated religious or ethnic minority in modern America. The evidence suggests that hostility to atheist candidates is primarily the result of bigotry rather than information shortcuts (e.g. – opposing an atheist candidate because one assumes that he’s probably a liberal), though the latter is certainly a factor for some voters. In this 2006 article, I explored some of the reasons for that hostility and also explained why it isn’t justified.
In 1980, one of the major party presidential nominees opened his general election by delivering a speech in a small town in the Deep South that just by coincidence happened to be the national headquarters of the Ku Klux Klan. That same candidate had previously complained about federal housing policies which attempted “to inject black families into a white neighborhood just to create some sort of integration.” He argued that there was “nothing wrong with ethnic purity being maintained.” That candidate was President Jimmy Carter, the Democratic nominee.
Carter kicked off his general election campaign with a speech in Tuscumbia, Alabama. Although the Klan’s headquarters were located in that small town, Carter was not appealing to the Klan vote, but was instead hoping to win the votes of the more than 40,000 people who saw him speak at the town’s annual Labor Day fair. Perhaps Carter chose to start his general election campaign in rural Alabama because he recognized that Reagan might take away some of the southern states that had been crucial to Carter’s win in 1976. As things turned out, Carter was right to be concerned; he ended up losing Alabama by 1%.
After the Republicans nominated Ronald Reagan in Detroit in July, he gave his first post-convention speech in New Jersey, near the Statue of Liberty. While the informal opening date of the general election campaign is traditionally Labor Day, Reagan continued to campaign during August, and on August 3, 1980, spoke at the Neshoba County Fair in Mississippi. The Neshoba Fair is large and popular, which probably explains why Democratic Senator John Glenn campaigned there in 1983, when seeking the presidential nomination, and why Democratic presidential nominee Michael Dukakis spoke there during the 1988 general election campaign, shortly after being nominated by the Democratic Convention.
Seven miles away from the fairgrounds is the town of Philadelphia, Mississippi, where three civil rights workers were murdered in 1964. Unfortunately, it would be difficult to find many places in Alabama or Mississippi which are not within seven miles of the scene of some infamous past act of racial violence, such as a lynching.
Reagan’s Neshoba speech was 33 paragraphs, consisting almost entirely of remarks about economics and jokes about Jimmy Carter. In the middle of the speech, he discussed his experience with welfare reform as Governor of California. He began by rebutting the idea that people on welfare are lazy and don’t want to work. To the contrary, said Reagan, they were just trapped by bureaucracy. Welfare, education, and other programs would work better for their beneficiaries if they were managed by state and local governments, rather than federally:
“I don’t believe stereotype after what we did, of people in need who are there simply because they prefer to be there. We found the overwhelming majority would like nothing better than to be out, with jobs for the future, and out here in the society with the rest of us. The trouble is, again, that bureaucracy has them so economically trapped that there is no way they can get away. And they’re trapped because that bureaucracy needs them as a clientele to preserve the jobs of the bureaucrats themselves.
“I believe that there are programs like that, programs like education and others, that should be turned back to the states and the local communities with the tax sources to fund them, and let the people [applause drowns out end of statement].
“I believe in state’s rights; I believe in people doing as much as they can for themselves at the community level and at the private level. And I believe that we’ve distorted the balance of our government today by giving powers that were never intended in the constitution to that federal establishment. And if I do get the job I’m looking for, I’m going to devote myself to trying to reorder those priorities and to restore to the states and local communities those functions which properly belong there.”
A rather mainstream sentiment, even if some devotees of federal centralization might disagree with it. Indeed, the bipartisan welfare reform law signed by President Clinton carried out Reagan’s vision, by returning much of the control of federal welfare programs to the states.
Some ignorant people claim that “state’s rights” is just a euphemism for racism. The phrase certainly has been sometimes been misused that way, but it is false to claim that the phrase is necessarily racist. Rep. Barney Frank (D-Mass.) introduced the “States’ Rights to Medical Marijuana Act” in the 107th, 108th, and 109th Congresses.
Reagan ended up winning Mississippi by 1.4% of the vote. Both Reagan and Carter were politically smart to take the opportunity to speak before large audiences in the rural South in states where the election would be close. It would be false to say that Carter was appealing to racists because he kicked off his campaign in a town that was the current home of the Ku Klux Klan, and it would be equally false to say that Reagan was appealing to racists because he mentioned his lifelong theme of state’s rights at a county fair several miles away from the site of an infamous crime 16 years earlier. Today, columnists and commentators who tell you that the ”kick off” for Reagan’s general election campaign was an appeal to racists are demonstrating that they don’t bother to check the facts before they make extreme allegations. People who are making coded appeals to racism don’t tell their audience that the “stereotype” of welfare recipients is wrong, and that “the overwhelming majority” of them want to work.
Tags: kick off, Mississippi, Philadelphia, Reagan
Will Wilkinson of the Economist has written a thoughtful response to my argument that Gary Johnson is both more libertarian and more politically viable than Ron Paul. Will seems to agree with me that Johnson is preferable to Paul on the issues, and he also praises Johnson’s record as governor of New Mexico. But he argues that Johnson is less politically viable than Paul precisely because of the very things that I see as his political negatives:
[N]either full-blooded libertarians nor allegedly liberty-loving tea-party enthusiasts really care much about governing. Libertarians, accustomed to dwelling on the margins of American politics, participate in elections without hope of electoral success, if they participate at all. For them, presidential campaigns offer at best an occasion to preach the libertarian gospel to the wary public, and the more table-pounding the better. As for the tea partiers, they seem less interested in practical policy solutions to America’s problems and rather more interested in fighting a culture war over what it means to be authentically American…..
The elements of Mr Paul’s past and creed that Mr Somin, Ms [Shikha] Dalmia, and I find objectionable are not really liabilities. They are an important part of what makes “Dr No” a candidate capable of generating surprising amounts of enthusiasm and campaign cash, if not votes. Mr Paul and the tea-party movement are each in their separate ways creatures of Cold War-era conservative-libertarian “fusionism”, which remains a powerful ideological and institutional force on the right. In contrast, Mr Johnson comes off as a post-fusionist, libertarian-leaning fiscal conservative. The very existence of such a creature heartens me, but it remains that there exists in our culture no popular, pre-packaged political identity that celebrates and defines itself in terms of these laudable tendencies.
If the issue is “table-pounding,” it’s hard to deny that Johnson is more than willing to pound the table in denouncing big government and statist politicians in both parties. The question is whether libertarian-leaning voters will find the table-pounding more appealing if it comes from a candidate who can’t easily be portrayed as a conspiracy-monger tainted by past associations with racism (both political weaknesses of Paul’s that I discussed in my earlier post). The data suggest that roughly ten percent of Americans are libertarian in the sense that they generally want to reduce government intervention in both the economic and social realms. Overall, these people have significantly higher education and income levels than the average citizen (see here and here). People with that profile are likely to be repulsed by racism and conspiracy-mongering rather than attracted to it.
It is true, of course, that conservative voters whose main objective is to fight a “culture war” are unlikely to support Johnson and would probably prefer Paul over him. But, realistically, such voters probably won’t support any candidate whose main cache is being known as a libertarian. Conservative culture warriors will have lots of options in the Republican primary that look more attractive to them than either Paul or Johnson (Michele Bachmann, Rick Santorum, Sarah Palin if she runs, etc.). Yet Will is wrong to assume that all or most Tea Partiers (a group distinct from libertarian-leaning voters, though there is important overlap) are primarily culture warriors. Such people certainly are well-represented in the movement. However, survey data that I compiled in this article show that some 51% of Tea Party activists endorse the view that “Government should not promote any particular set of values,” compared to 46% who say that “Government should promote traditional family values in our society.” Other polls I cited in the same piece show that a surprising 40% of self-identified Tea Party supporters agree with the Supreme Court’s decision in Roe v. Wade, and 57% endorse either gay marriage (16%) or civil unions (41%) for gays. Thus, there is a large minority, by some measures even a slight majority, of Tea Partiers who are more libertarian than conservative. Given the choice, these people could well prefer Johnson to Paul for some of the same reasons as I do. Those Tea Party activists who are primarily conservative culture warriors, by contrast, are unlikely to choose any libertarian-seeming candidate over a conservative one.
Why then, Will asks, haven’t libertarian-leaning voters flocked to Johnson’s standard? The obvious answer is that most of them don’t know who he is. This March Gallup poll shows that only 11% of Republicans say they recognize Gary Johnson’s name, while 76% recognize Paul. The 11% figure probably overstates Johnson’s true name recognition because some survey respondents are loathe to admit ignorance to pollsters. Even many of those who have heard of Johnson may not be familiar with the differences between him and Paul. Given widespread rational political ignorance, Johnson’s low level of recognition is not surprising. Paul has the advantage of a previous presidential run in 2008 that got a lot of media coverage and he has been a fixture on the national political scene for over twenty years (albeit a relatively minor one). By contrast, Johnson is still little-known outside New Mexico.
As I admitted in my original post, it’s quite possible that Johnson’s candidacy will wither on the vine simply because most of his natural constituency will remain ignorant about him. On the other hand, the comparatively high education and political knowledge levels of libertarian-leaning voters makes it easier to reach them than many other groups. For that reason, I continue to believe that Johnson has a real chance to surpass Paul if, as I said in my earlier post, “libertarian activists, donors, and intellectuals become aware of the ways in which [he] is the superior candidate.” If these opinion leaders spread the word, libertarian-leaning voters might well follow. As a well-known libertarian writer himself, Will can potentially help solve the the very problem that he laments.
With Indiana Governor Mitch Daniels choosing not to run, there are now two libertarian-leaning presidential candidates in the GOP field for 2012: Ron Paul and former New Mexico Governor Gary Johnson. Which is a better standard-bearer for libertarianism? I think it’s Johnson by a wide margin. He’s both more libertarian than Paul on the issues and likely to be a more effective candidate.
I. The Issues.
Turning to the issues first, the difference between the two is strikingly large. As I explained back when Paul ran in 2008, he has very nonlibertarian positions on free trade, school choice, and especially immigration. He also believes that Kelo v. City of New London was correctly decided because he thinks the Bill of Rights does not apply to the states. The latter is theoretically compatible with being a libertarian; one can believe that the Constitution should protect us against various forms of oppression by state governments, but simply fails to do so. But Paul’s position is at odds with most modern research on the original meaning of the Fourteenth Amendment, and with the views of virtually all libertarian constitutional law scholars. It also bodes ill for the nature of his judicial appointments in the unlikely event that he actually wins the presidency.
On all of these issues, Johnson is clearly superior to Paul from a libertarian point of view. He supports school choice and free trade agreements, he’s as pro-immigration as any successful politician can be, and he believes that the Bill of Rights constrains the states as well as the federal government. On the other hand, I can’t think of a single issue where Paul is more libertarian than Johnson, though I’m open to correction by people who know more about their records than I do.
I don’t agree with Johnson on everything. For example, I’m significantly more hawkish than he is on foreign policy. But as a political standard-bearer for libertarianism, Johnson is about as good on the issues as any remotely mainstream politician is likely to be at this point in time.
II. Political Viability.
Johnson is also probably more politically effective than Paul. That’s because he doesn’t carry any of the negative baggage that Paul does. Unlike Paul, Johnson never published a newsletter with racist and anti-Semitic content, or signed on to a political strategy of appealing to white racial resentment against minorities, as Paul did in the early 1990s. As I said during the 2008 campaign, I don’t believe that Paul is a racist. But his record of insensitivity on racial issues dogged him in 2008, and is likely to resurface in 2012 if his candidacy becomes at all successful. Paul also has a record of endorsing weird right-wing conspiracy theories, such as the mythical “North American Union.” This too was seized on by the media in 2008, and could be a problem again. If Paul becomes the public face of libertarianism in 2012, there is a risk that the movement as a whole could be tainted by association with these dubious elements of his record. By contrast, Johnson has no comparable problems, as far as I know.
Finally, it’s worth mentioning that Johnson, whom I saw speak at the Students for Liberty conference, is much more articulate and charismatic than Paul, who isn’t especially impressive in either department. I would not say that Johnson is a truly great public speaker. But he’s pretty good, which is more than can be said for Paul.
The big advantages that Paul has over Johnson are that he has more money and greater name recognition. But if libertarian activists, donors, and intellectuals become aware of the ways in which Johnson is the superior candidate, they might rally around him and possibly give his campaign the boost it needs to take off and surpass Paul.
Realistically, neither Johnson nor Paul has a strong chance of actually winning the GOP nomination. But if his campaign gets off the ground, Johnson will have better odds than Paul does because he’s more appealing to voters and the media, and less hated by the GOP establishment. More importantly, he’s certainly a far superior libertarian protest candidate and public face for the movement. The chance that either candidate can win the presidency in 2012 is remote. But Johnson is the one more likely to serve as an effective spokesman for libertarianism, adding new supporters without unnecessarily alienating people.
Many times in politics, we face a choice between a candidate with better political skills and one who is better on the issues. Johnson trumps Paul on both counts.
So holds Minnesota Citizens Concerned for Life, Inc. v. Swanson (8th Cir. decided today). (The decision was unanimous this point, though the panel split 2-1 on another matter.)
I think this is the right result, even though I think Citizens United, which upheld corporations’ and unions’ right to engage in independent expenditures, is also right. I don’t think that corporate contributions to candidates by big businesses are likely to be particularly corrupting, among other things because (under Buckley v. Valeo) contributions to candidates by anyone — individual or corporation — can already be limited. Thus, for instance, Minnesota law limits contributions to $500 to $2000 in an election year, depending on the office (and less in other years). 3M or the Service Employees International Union is not going to be able to materially influence a candidate by contributing $2000. If anything, corporate and union influence is much more likely to come from individual contributions by corporate employees and union members, which can indeed add up to much more money.
Rather, the problem with corporate contributions is that they provide an avenue for evading individual contribution limits; if I want to donate $20,000 to a candidate instead of the $2000 limit, I could set up nine corporations, and then donate myself and also have those corporations make similar donations. Few people would do that, but some people who want to be big political players might. Nor can this easily be dismissed as a supposed “sham” and be thus distinguished from “legitimate” corporate contributions. Say some pro-life or pro-choice advocate, for instance, sets up several advocacy groups, perhaps one per city or one per county; nothing wrong with that. But then the advocate, who may be the dominant force in the groups (as well as a major contributor), might easily be able to give money to all those groups, and then have those groups give money to a candidate. That might well be quite consistent with the groups’ institutional goals, and be hard to clearly identify as a “sham.” But nonetheless the contributor would be able to evade the contribution limits through this means; and given the constitutionality of the contribution limits, the government may reasonably prevent such evasion by banning corporate contributions.
This rationale does not, however, justify bans on corporate independent expenditures. First, the government is not allowed to limit the size of individual independent expenditures (as Buckley v. Valeo also held), so there’s no “prevent the evasion of individual expenditure limits” justification. And, second, a ban on independent expenditures would dramatically limit speech without leaving open ample alternative channels — a ban on contributions, on the other hand, does leave open the alternative channels of independent expenditures.
For more on why I generally support the constitutionality of contribution-expenditure distinction, see Part III of my my Freedom of Speech and Speech About Political Candidates: The Unintended Consequences of Three Proposals (2000). Thanks to Prof. Rick Hasen (Election Law Blog) for the pointer.
A new report from Ohio Secretary of State Jon Husted found that over 18,000 dead people are still registered to vote in the state. (The AP reports here.) The report is being given to local Boards of Election who are to investigate further and remove the deceased from the voter rolls. The report only looks at voter registrations, not whether any of those reportedly dead have voted in recent elections.
James L. Huffman, former Dean of Lewis & Clark Law School and the 2010 Republican nominee for Senate from Oregon, has an op-ed in Monday’s WSJ explaining how his experience as a political candidate convinced him that mandatory disclosure of campaign contributions is a bad idea.
The reality is that public disclosure serves the interests of incumbents running for re-election by discouraging support for challengers. Here’s how it works.
A challenger seeks a contribution from a person known to support candidates of the challenger’s party. The potential supporter responds: “I’m glad you’re running. I agree with you on almost everything. But I can’t support you because I cannot risk getting my business crosswise with the incumbent who is likely to be re-elected.” . . .
Disclosure makes threats possible, and fears of retribution plausible. Within weeks of a contribution of $200 or more, the contributor’s name appears on the public record. Contributors know this, and they know that supporting the challenger can, should the challenger lose, have consequences in terms of future attention to their interests. Of course no incumbent will admit to issuing threats or seeking retribution, but the perception that both exist is widespread.
The reality of that perception alone should give us pause about disclosure requirements. And it would be naïve to believe that the perceptions have no basis in reality.
He makes some good points, but I am not entirely convinced. There are strong arguments for disclosure. Among other things, it gives voters additional information and could make it easier to assess corruption claims. Huffman argues that since federal law caps campaign contributions at $2,400, disclosure does not do much to prevent corruption, but does discourage support of challengers. More to ponder.
After some looking around, I’ve settled on the Milwaukee Journal-Sentinel, and @daveweigel to follow for tonight’s Wisconsin Supreme Court election results. With 17% of precincts reporting, Prosser and Kloppenburg each have 50%.
Folks interested in Justice Prosser’s record on right to arms issues can find some information in my article, The Licensing of Concealed Handguns for Lawful Protection: Support from Five State Supreme Courts, 68 Albany Law Review 305 (2005) (analyzes recent decisions in New Mexico, Missouri, Ohio, Wisconsin, and Rhode Island) (short answer: according to Prosser’s majority opinion, the Wisc. RKBA includes the right to unlicensed concealed carry in one’s home or business, but not automobile).
UPDATE: For those folks who follow out-of-state judicial election returns via the Internet, this has been quite an exciting night. Lots of lead changes. At various points, each candidate had a substantial lead, and then the race reverted to 50/50. That’s the situation now, with 95% in, and Prosser coming from behind to open up a 6,000 vote lead, which just fell to a lead of fewer than 2,000.
MORE: Two lead changes within a minute. First Kloppenburg up by 1,500; now Prosser up by 4,500, then lead falls to 2,500 two minutes later. 97% in. Greatest Wisconsin state supreme court election night ever for non-Wisconsinites!
Bluman v. FEC, a district court case that will be heard in May by a three-judge panel in D.C. (consisting of D.C. Circuit Judge Brett Kavanaugh and District Court Judges Ricardo Urbina and Rosemary Collyer, asks: (1) Do non-permanent-resident non-citizens have the First Amendment right to contribute to candidates’ campaigns? (2) Do non-permanent-resident non-citizens have the First Amendment right to speak — in ways that use money, as most effective speech does — in support of or opposition to candidates, even independently of the candidate’s campaign?
A federal statute currently bans both contributions and independent expenditures by non-permanent-resident non-citizens (except those who can use the “media exemption,” which covers “any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication”). The question is whether this is consistent with the First Amendment. Here are the briefs in the case:
- FEC’s motion to dismiss.
- Plaintiff’s motion for summary judgment, and opposition to FEC’s motion to dismiss.
- Amicus brief of the Illinois Coalition for Immigrant and Refugee Rights, supporting plaintiff.
- FEC’s opposition to plaintiff’s motion for summary judgment, and reply.
- Plaintiff’s reply.
For more on the constitutional rights of non-citizens generally, see this post (as to the First Amendment) and this one.
Although votes were cast on November, the race for juvenile court judge in Hamilton County, Ohio, has yet to be resolved. At last count, one candidate led by 23 votes, but a slightly higher number of miscast ballots were counted, and several hundred more remain in dispute. As I noted here and here, the election has spawned litigation in both federal and state court raising both state law and federal equal protection claims.
Last week, the U.S. Court of Appeals for the Sixth Circuit weighed in with Hunter v. Hamilton Country Board of Elections, concluding 2-1 that the Board’s decision to count some miscast ballots but not others may have violated 14th Amendment’s Equal Protection Clause as applied to ballot counting in Bush v. Gore. As OSU’s Ned Foley explains here, this decision is likely “the most significant application of Bush v. Gore in the decade since that precedent was decided,” and (if not overturned or modified by the Sixth Circuit en banc or the Supreme Court) could influence how other courts handle future election challenges, particularly those involving challenges to election official decisions to count some ballots but not others.
One of the central issues in the case is whether the Hamilton County Board of Elections offered a sufficient justification for deciding to count some ballots cast at the wrong precinct due to errors by election officials, but not others. As Judge Moore’s majority opinion explained, “the Board exercised discretion, without a uniform standard to apply, in determining whether to count miscast ballots due to poll-worker error that otherwise would have been invalid under state law.” Judge Rogers’ concurring opinion did not subscribe to this analysis and urged greater deference to state officials. As Foley notes, this opinion offers an alternative approach some courts may elect to follow, and a further reason this case could prove important should we face yet-another round of election litigation next year.
Beyond the court’s application of Bush v. Gore, the case raised the issue of how state and federal courts should address potentially competing interpretations of federal law. In an earlier decision, the Ohio Supreme Court, in clarifying Ohio’s rules governing provisional ballots, was fairly dismissive of the federal constitutional claims and asserted that Ohio courts were not bound by federal district court interpretations of federal law. This earned a slight rebuke from the Hunter majority: “It is not for the state court . . . to resolve the equal-protection claim previously filed and still pending in federal court.” These issues, the Sixth Circuit held, “were not properly before the Ohio Supreme Court because they were not presented there.” As a consequence, there was no basis for the Sixth Circuit to defer to the Ohio Supreme Court’s resolution of the issue.
Judge Rogers, concurring in the judgment, viewed the Ohio Supreme Court decision somewhat differently. Noting that the Ohio Supreme Court had sought to explain how local election officials could comply with the relevant district court order, he wrote:
This was a commendable exercise of discretion in a constitutional system where federal and state courts are independent of each other. State courts and lower federal courts need not, and should strive not to be, in conflict. The law and the public interest support tailoring of federal equitable relief so as to conform as closely as possible to the Ohio Supreme Court’s interpretation of Ohio election law.
While the state courts cannot control the enforcement of a federal court order enforcing federal law, the state courts may properly direct state officials responsible for carrying out the order on the choice of options consistent with the order. This is what the Ohio Supreme Court has done, and it appears to have done so in a thoughtful and deferential manner.
For these reasons, Judge Rogers urged the district court to make a greater effort to conform any further ordered relief to the Ohio Supreme Court’s resolution of the relevant state law claims.
[NOTE: I have corrected an error in the title and the post. I wrote "probate judge" when I should have written "juvenile court judge."]
Certain kinds of electioneering materials may be banned at and near polling places on election day; that’s what the Court held in Burson v. Freeman (1992). But does this allow restraints on distributing such material at other times and places, on the theory that recipients will display (or are even intended to display) such material in the prohibited places? That’s what Common Cause Minnesota apparently argued, but a Minnesota Administrative Law Judge rejected that claim, in Common Cause Minnesota v. Minnesota Majority (Minn. Ofc. of Admin. Hrgs. Oct. 29, 2010):
The Complainant, Common Cause Minnesota, asserts that Respondents, together with the Northstar Tea Party Patriots, support a joint project called “Election Integrity Watch” that has the stated objective of “improv[ing] the overall integrity of elections in Minnesota by training thousands of voters on how to spot voter fraud and what to do about it when they do.” As part of that support, the Complainant alleges the Respondents are distributing political buttons and are encouraging individuals to wear these buttons when they go to the polls on November 2, 2010, “as a visible message to others that you are watching out for voter fraud.” The buttons state: “Please ID Me” and include an image of an open, watching eye with the word “integrity” written underneath. The Complainant contends that by providing the political buttons to be worn at the polling place on election day, the Respondents have violated Minn. Stat. § 211B.11.Minn. Stat. § 211B.11, subd. 1 provides, in relevant part as follows:
Soliciting near polling places. A person may not display campaign material, post signs, ask, solicit, or in any manner try to induce or persuade a voter within a polling place or within 100 feet of the building in which a polling place is situated, or anywhere on the public property on which a polling place is situated, on primary or election day to vote for or refrain from voting for a candidate or ballot question. A person may not provide political badges, political buttons, or other political insignia to be worn at or about the polling place on the day of a primary or election. A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day.
This afternoon the U.S. Court of Appeals for the Sixth Circuit weighed in on the Hamilton County election snafu that produced potentially conflicting state and federal court decisions. In Hunter v. Hamilton Country Board of Elections the court largely upheld the federal district’s ruling requiring the Board of Elections to investigate whether poll worker error caused the erroneous rejection of provisional ballots, but largely rejected the district court’s January order that would have required the Board of Elections to count additional ballots. Judge Moore wrote the opinion for the court, joined by Judge Cole. Judge Rogers wrote an opinion concurring in the judgment.
I haven’t had time yet to fully digest the ruling, but the court’s resolution seems sensible to me (though I might prefer Judge Rogers’ approach to the Judge Moore’s). I’ve placed an excerpt below the fold.
Continue reading ‘Hamilton County Snafu — The Sixth Circuit Weighs In’ »
I don’t envy the Hamilton County Board of Elections. This morning they have a hearing before Judge Susan Dlott of the U.S. District Court for the Southern District of Ohio at which they are to explain why they should not be held in contempt of court for failing to follow a court order. Last week, Judge Dlott issued an order directing the Board of Elections to count over 150 disputed ballots in a local election for juvenile judge. The problem is that both the Ohio Supreme Court and Secretary of State say that the ballots cannot be counted under Ohio law.
Here’s some background. The race for juvenile judge in Hamilton County is very close. After the election day count, Republican John Williams led Democrat Tracie Hunter by a mere 23 votes. But there was a problem. Due to mistakes by election officials, this count included 27 provisional ballots that had been cast at the Board of Elections headquarters for the wrong precinct. Board officials gave eligible voters the wrong ballots, but these were counted anyway — and there were just enough to cast the outcome of the election in doubt.
The legal controversy has centered on another set of provisional ballots — over 150 — that were cast at local polling places, but at the wrong precinct. (In Ohio, voters for more than one precinct may vote at a single physical location, albeit with different ballots and on different machines.) These ballots were not counted, and litigation ensued.
Hunter’s camp alleges that the Board of Elections must count the additional set of provisional ballots. To include one set of faulty ballots but not the other would violate the Equal Protection Clause, as applied to vote-counting procedures under Bush v. Gore. Specifically, they argue that the failure to vote in the proper precinct was due, at least in part, to poll worker error, and not mistakes by the voters. Therefore, to include one set but not the other is to treat the ballots is unconstitutional. As Judge Dlott explained:
To treat these groups of provisional ballots differently when they are the same for the purposes of being improperly cast due to poll worker error violates voters’ right to equal protection under the law. Because the Board has already counted certain provisional ballots cast in the wrong precinct due to poll worker error, the remaining ballots that fall in the same category must be counted.
A federal judge may see it this way, but Ohio officials do not — at least not now. Before she had left office, Ohio Secretary of State Jennifer Brunner had ordered the Board of Elections to count over 100 of the disputed ballots. This order was rescinded by new Secretary of State John Husted. Lest one think this is all about partisan politics (Brunner is a Democrat; Husted a Republican), Husted’s action came on the heels of an Ohio Supreme Court decision rejecting Brunner’s arguments and holding that the additional ballots may not be counted under Ohio law and need not be counted under the Equal Protection Clause.
So you can see why the Hamilton County Board of Elections is in a tight spot. The Ohio Secretary of State and Ohio Supreme Court say they cannot count the additional ballots, but a federal district court says they must. There’s no question that federal law trumps state law under the Supremacy Clause, but does this mean a federal district court necessarily trumps the state supreme court? The Ohio Supreme Court does not think so.
“It has long been settled that the Supremacy Clause binds state courts to decisions of the United States Supreme Court on questions of federal statutory and constitutional law.” State v. Burnett (2001), 93 Ohio St.3d 419, 422, 755 N.E.2d 857. But as for decisions of lower federal courts, this court has observed that “we are reluctant to abandon our role in the system of federalism created by the United States Constitution until the United States Supreme Court directs us otherwise. Id. at 424. Thus, “we are not bound by rulings on federal statutory or constitutional law made by a federal court other than the United States Supreme Court. We will, however, accord those decisions some persuasive weight.”
This sets up the possibility that Board officials could become subject to conflicting court orders. It’s a “highly complicated situation,” commented on board member, in a bit of understatement. If neither court relents, and the district court is not overturned by the Sixth Circuit, the Board could be in a bit of a pickle. As Ohio State’s Edward Foley notes here, the conflict may cause the U.S. Supreme Court to revisit Bush v. Gore (if not also Martin v. Hunter’s Lessee).
UPDATE: Earlier today, before the contempt hearing could take place, the U.S. Court of Appeals for the Sixth Circuit granted an emergency stay of the district court’s order and related proceedings pending the resolution of appeals in the case. ”Given the conflicting decisions in this case and the difficult position in which the Board finds itself, we conclude that a stay should issue pending the resolution of these appeals,” the court explained. The Sixth Circuit will hear oral argument on Thursday. (Hat tip: ElectionLaw@Moritz.)
So held the Tenth Circuit on Tuesday in Sampson v. Buescher:
Colorado law requires that any group of two or more persons that has accepted or made contributions or expenditures exceeding $200 to support or oppose a ballot issue must register as an issue committee and report the names and addresses of anyone who contributes $20 or more. Plaintiffs are residents of Parker North, a neighborhood of about 300 homes in an unincorporated part of Douglas County, Colorado, who opposed the annexation of their neighborhood into the Town of Parker. Plaintiffs had raised less than $1,000 in monetary and in-kind contributions for their cause when supporters of annexation challenged the failure of the opponents to register as an issue committee.Plaintiffs contend that Colorado reporting requirements unconstitutionally burden their First Amendment right to association. We agree that Colorado law, as applied to Plaintiffs, has violated their constitutional freedom of association. There is virtually no proper governmental interest in imposing disclosure requirements on ballot-initiative committees that raise and expend so little money, and that limited interest cannot justify the burden that those requirements impose on such a committee….
I am at least somewhat happy to see that John Kasich was elected governor of Ohio on Tuesday. Back in 2000, I was one of about six people outside Kasich’s immediate family who supported his abortive bid for the presidency. I’m pretty sure that I was the only Kasich supporter at Yale Law School at the time!
I had liked Kasich’s efforts at budget-cutting when he was Chairman of the House Budget Committee in the 1990s, which included going after farm subsidies that benefited his home state, and wasteful military spending supported by many other Republicans. By contrast I thought that both George W. Bush and John McCain were suspect on free market issues, though I still failed to foresee how bad Bush would actually turn out to be on that score. Amazingly enough, the support of an obscure law student wasn’t quite enough for Kasich to mount a serious challenge to Bush and McCain, and his campaign quickly fizzled out.
I don’t know whether Kasich would really have made a good president, or for that matter whether he’ll be an effective governor of Ohio. I haven’t followed his career closely since 2000. I will say that time hasn’t changed my view that Kasich was significantly better than Bush, though that isn’t exactly judging him by a high standard.
Some commenters on my earlier post on the election criticize my claim that the economy determined the outcome far more than the health care bill and Obama’s other left-wing policies. I don’t deny that these factors hurt the Democrats. But the economy mattered far more.
The standard economic model of midterm electoral outcomes developed by political scientist Douglas Hibbs (which has performed fairly well for many years) predicted a 45 seat Democratic loss in the House. As Kevin Drum emphasizes, the Democrats in fact did even worse than this, losing about 15 to 20 additional seats. Hibbs’ model takes account of the “exposure” of the majority party (the number of potentially vulnerable seats they held) and of income growth. But it doesn’t directly factor in unemployment, which is worse in this recession than in any other since World War II, except for that of the early 1980s. It’s possible that high unemployment (which was high even relative to the decline in income) helped account for some of those “extra” seats.
The health care bill and other instances of leftward deviation from the views of the political center probably also accounted for some of the residual. But one can’t assign the entire excess to that factor. There are a lot of other variables in play, including Obama’s seemingly aloof “elitist” governing style, left-wing voters who may have stayed home because they thought Obama was too moderate, frustration over the state of the war in Afghanistan, and so on. Moreover, as I noted in my last post, the minority of voters who cared intensely enough about health care to consider it the single most important issue facing the country actually broke in favor of the Democrats (albeit by a modest 53% margin). And the health care bill might have been more popular if better economic performance had increased the president’s popularity, which in turn might have led voters to regard his other policies more favorably.
Let’s assume, however, that the health care bill and other unpopular left-wing policies cost the Democrats 80% of those extra lost seats. It’s still less than 30% of the loss attributable to the economy. Furthermore, I think most liberal Democrats would have been happy to sacrifice twelve to fifteen House seats to achieve a long-cherished policy goal such as the health care bill. And most conservatives would have been equally willing to sacrifice the same number of Republican House seats to prevent it.
