Wednesday, November 06, 2002

Not only does Campus Watch now have special disclaimers on its University of Chicago reports here and here. Now it has added a little thumbs-up icon to recommended articles (to distinguish them, in part, from all the pieces it links to by the scholars it criticizes)-- and on the University of Chicago survey page, it declines to even recommend its own campus reports.

Again I'll say: if they've figured out that they should be embarrassed by those reports, then they ought to take them down and apologize, not just downplay and disclaim them.
One more post-election point. I've blogged here several times on when it might make sense to vote for your local pro-gun Democrat, even though he'll deliver control of a chamber of Congress to an anti-gun party, or for your local pro-choice-Republican, even though she'll deliver it to a pro-life party. The voters have now had their say, and they seem less willing to overlook party in Congressional races than they used to be, and less willing than they are in gubernatorial ones (which is rational, as discussed earlier). New York and all of New England now have Republican governors, and at least five of those seven are moderate-to-left Republicans. But Connie Morella lost her attempt to get to the House on the basis of an "I don't agree with my party" platform. Max Cleland didn't make it, either. The gubernatorial map now looks very mixed; the House-and-Senate maps now look pretty sharply red-state/blue-state divided. Voters figured out that party control matters in Congress, and voted accordingly. Zell Miller and Lincoln Chafee are going to start to feel pretty lonely.

This results in the loss of some useful caucus-dissent; and may encourage the sort of majority-party-overreach that contributes to electoral see-sawing. As I've said, I want there to be pro-choice, pro-gay Republicans, and anti-tax, pro-trade Democrats. But today we're one step closer to something like parliamentary responsible-party government, as both Congressional parties look increasingly internally homogenous.
THIRD PARTY OUTCOMES: On the third-party questions below: Yep, there was a break away from 3rd parties after all. In South Dakota, the L, even though he had withdrawn and thrown his support to Thune, exceeded the R-D gap. But I think that was the only Senate seat tipped by one third-party candidate. In Missouri, neither the G nor the L exceeded the Carnahan-Talent gap, though both combined did (meaning that if Carnahan had somehow managed to get both those groups in her camp she could've won). In Minnesota, neither the Indepedence nor Green candidates (though, again, both combined) exceeded the Mondale-Coleman gap, and that's in a state that, for the moment, has both a senator and a governor from the Independence Party. NH Senate: the L is close to but not at the Sununu-Shaheen gap. It's actually striking how many Senate races were blowouts (look here for the tallies). There are R-D gaps of 5 points or less in only MN, MO, SD, NH.

Less of a 3rd-party collapse in gubernatorial races, suggesting that voters understood that their decisive Senate vote might become thedecisive Senate vote. For governor: L solidly bigger than the gap in Alabama; the Republicans can fairly think that the Ls cost them that one assuming even a slight R-over-D preference among southern Ls. Arizona governor: Mahoney twice the size of the gap, costing R Salmon the race-- though Mahoney's listed as an independent and I don't know where his support came from. California governor: Neither G nor L, though both combined, bigger than the gap. That means that California's not as much in play for Republicans as they might briefly think; they were hardly going to get that 5% G vote, and even the 2% L vote is likely out of reach because California Libertarians are a much more pro-choice, pro-gay, pro-drug group than are southern guns-and-taxes Libertarians. Maine: G (9%!) greater than the gap, but it's unlikely the losing R could have picked them up under any circumstances. Mass: it would have taken not only G+L but also the votes of "other" Johnson to make up the D-R gap. MN governor is a special case; Independence candidate and former Congressman Tim Penny exceeds the gap, but 16% isn't very impressive considering his resume and the fact that he's from the incumbent governor's party. NY: even had every last Golisano voter gone to McCall (unlikely!) it wouldn't have tipped the race. Incomplete results make it look likely that an L tipped Oregon governor to the Ds. An "other" tipped OK to the Ds. An "other" tipped Vermont to the Rs. L Thompson, Tommy Thomspon's brother, tipped Wisconsin to the Ds. The L is within a hair's breadth of the gap in Wyoming, but the D would have scraped it out even if every L had gone R.

A quick scan of CNN's list of the competitive House races: L greater than the gap twice, G greater than the gap twice, other greater than the gap twice; but Colorado 7 is all three, so these six thrid-party candidates were in just four districts. But G did well in a district that went D, L did well in a district that went R. Continuing to assume that Ls break more for Rs than for Ds, no L actually tipped a race. The Green tipped Colorado 7 to the Rs (though R+L>D+G).

G alone greater than the gap: Maine gov (but the Ds won). L alone bigger than the gap: SD Senate, Alabama, Oregon, Wisconsin gov (each of which the Ds won, meaning that the Ls at least arguably tipped them). Other or independent greater than the gap: Arizona Vermont, Minnesota, Oklahoma gov. No more than four House races, and probably only two, affected by the presence of third-party candidates.

The Dems seem to have neutralized the Green threat this time out. The Republicans still have a Libertarian problem; but unlike in 2000, it didn't cost them the Senate. It didn't even cost them their gubernatorial majority. The party Perot began and the one Ventura spun off from it are now basically dead.

Note: Most of the above makes the disputed-by-Greens assumption that all Green voters would otherwise be Democrats; (except where noted) the genuinely-false assumption that all Libertarian voters would otherwise be Republicans (I know this is false, because it was certainly false for me for Illinois governor); and the probably-false though I think not-terribly false assumption that all third-party voters would have gone to the polls, or could possibly have been motivated to go to the polls, in the absence of the third-party candidates. I’m well aware of the arguments around these claims. But from the perspective of major-party strategists, I think these are the working assumptions, i.e. Democrats think that every Green voter is someone who would vote for their candidate if there were no Green in the race.

UPDATE: The Alabama figures are in flux, and the R may pull it out.
I get to rightfully claim a) that my predictions were less wrong than Dan Drezner's and b) that I was one of not many people who said that Sununu would beat Shaheen. (Another of those people, Chip Griffin in NRO's Corner, is a New Hampshire hometown acquaintance of mine.) But I'll renounce bragging rights, since I had the big story wrong-- and even went out of my way in the middle of the day yesterday to say that I didn't believe there was a late Republican surge...

Tuesday, November 05, 2002

Larry Sabato senses a last-minute GOP drift in the Senate. "Suddenly, a 50-50 Senate (Republican-controlled) looks as likely as a 51-49 or 52-48 Democratic Senate." And TNR has collected several recent pieces into a "how the Democrats blew it page. Sabato and TNR are much closer to being insiders than I am and presumably have information I don't. But I'm sticking with: House GOP +2, Senate no change. UPDATE: Turns out that last minute GOP surge was real after all. Check out Kaus' funny pbservation that the NYT had the big story over the weekend but couldn't bear to believe it. But I won't gloat at the NYT, since I didn't believe it either. (Neither did Kaus, who blogged it yesterday as the "phantom surge."
One minor but interesting indicator to keep an eye on tonight: third party votes. No one believed that the 2000 election would be so close. Everyone believes that the 2002 elections willbethiscloseorcloser. How many of Nader's 2000 voters will feel driven back to the D column? How many Senate races are tipped by Greens or Libertarians? Look for the L vote to exceed the D-R gap in NH Senate, Mass governor, GA Senate, MO Senate, but maybe not SD Senate since the L suspended campaigning and endorsed Thune. Look for significant D defection to the Greens in CA gov, as disaffected lefties decide that Gray has a lock on the race. Golisano in NY gov & Penney in Minn gov are special cases; their vote totals are going to be big and therefore, for current purposes, uninteresting. Keep an eye on those 1%-5% candidates. In general, we have a test of the idea that voters feel pressed to vote major-party when the election is close. Those who vote third-party today are either really determined, or really convinced that the two majors don't differ enough on the issues important to them. The SD dropout shows that not even all candidates are that determined; but a lot of voters still are.

If today we end up with a 48-48 nation instead of Kaus' 50-50 nation, then Ds & Rs come under immediate strategic pressure to get those third-party votes; and this is tricky to do while keeping overall positions near the median. (The Ds can't go green, or embrace L drug legalization; the Rs can't swing very far toward L posiitons on taxes and spending.) There were Rs who noticed this in 2000 and blamed the Ls for costing them the Senate. This time either Ds awill blame Gs or Rs will blame Ls for costing them the Senate; and the major parties will start to devote staff and resources to neutralizing these threats to their flanks. Bad news would be D-R collusion in tightening of ballot access requirements, as happened after John Anderson's 1980 campaign. Useless news would be denouncing the third parties, as the Ds have been doing to Nader for two years now. (Today's third party voters aren't going to be swayed by denunciations; they'll be alienated by them.) Interesting news would be major parties trying to co-opt selected minor-party issues that they don't think will be noticed by or scary to centrist voters.

Monday, November 04, 2002

A few more words, and a second thought, on Mark Kleiman's express-voting idea. Mark wonders at the possibility that it could be a denial of equal protection to speed up everybody's voting (thereby allowing more even of the non-express-voters to vote) instead of preventing many thousands of people from voting at all because there are too few fancy new voting machines.

"Note that the proposal would advantage, rather than disadvantaging, voters taking the slow option. Their wait in line becomes shorter as large numbers of other voters were diverted to the fast line. Clearly, the people choosing the fast line who were slow voters would be disadvantaged compared to the people choosing the fast line who were fast voters, but each of them (though not all of them) would have the option of avoiding that disadvantage by waiting in the slow line.... But if it's a denial of equal protection to allow some voters to vote in return for their promise to vote quickly, what is it to deny hundreds of thousands of people the opportunity to vote at all? I think the technical term is 'Straining at gnats and swallowing camels.'"

Under the circumstances I have a lot of sympathy for Mark's proposal. But I still think there's a problem with this particular gnat. Denying hundreds of thousands of more or less randomly selected persons the opportunity to vote at all is going to raise fewer equal protection/ VRA questions than will a procedure that makes it more likely that any given person will be able to vote-- but allows a bigger increase in that chance for literate English speakers and straight-ticket voters than for others. In a democracy with a different history I think literacy tests for voting would be a fine idea. In our democracy, they're considered particularly constitutionally odious, and for good reason. (Someday, perhaps, Jim Crow will be far enough in the past that literacy could be reintroduced as a relevant consideration; but we're not there yet.) And equal protection/ VRA questions demand that one look at relative changes, not only absolute ones.

So if this were a Broward-only-election, I think that would be the end of the story; express-voting would be impermissible. The catch is that it's not. If we were to resurrect the avowedly one-time-only equal protection claims made in Bush v Gore, then the variation across counties might outweigh the variation within Broward. That is, the unfairness to Browardites relative to the rest of the state could count for more than the unfairness to less-literate Browardites relative to more-literate ones. If Broward is more black or Hispanic than the rest of the state (which I assume but don't know) then the VRA might push the same way, meaning that we wouldn't need the Bush v Gore argument at all.

So, on reconsideration, I think it's at least legally plausible that express-voting might be permissible. Administrative personnel and government officials have an obligation not to knowingly act in violation of the constitution, even if what they want to do is reasonable and democratic, and even if a court wouldn't be able to stop them in time. (That, I take it, is InstaPundit's point.) But if there's room for legitimate legal and constitutional doubt, the officials' own best understanding of the constitution can allow them to try things, even if a court might later disagree with them. And, having had an extra day to think about it, I now think there would be such doubt. That means that I think I side with Mark; this would be a reasonable thing for Broward officials to attempt, under the circumstances. The best interpretation of equal protection and the VRA might rule the experiment out; but this is not so certain as to require constitutional bad faith on the part of those who might attempt it. [Final note: Mark implies that I'm a law professor, which I am only in the minor way that I've taught some courses that were cross-listed with law-- constitutional theory, philosophy of law. I don't have a law degree, and I don't have an appointment in the law school, only in political science. I'm a serious student of constitutional law, but not really a scholar of it.]
As is the case for InstaPundit (see link immediately below), some of the demands of my academic day job have gotten in the way of blogging-- so I'm delinquent on part 3 of my Kaus vs. Judis series and so I was too late to supply Mickey Kaus with ammunition for his radio debate with Judis' co-author. Sorry about that! But some of what I'm going to say is already in this review of the Judis-Teixeira book.
InstaPundit has a very nice post on the life of the professor. Check it out...

Sunday, November 03, 2002

Those in academia or in Chicago might know, but others might not, that the University of Chicago is in a neighborhood called Hyde Park, several miles south of downtown and smack in the middle of Chicago's overwhelmingly black South Side. (Hyde Park itself is, statistically if not always socially, an exceptionally racially mixed neighborhood.) This has the odd-for-me effect that political direct mailings, presumably sorted by zip code or something similar, treat me as part of a political demographic very different from my actual one. In the last week I've gotten several Democratic mailings that were clearly of the rally-the-black-base-and-increase-turnout variety, not attempts to persuade swing voters. (As noted below, I am a swing voter in the only genuinely competitive election I'll be voting in, the dreadful race for Attorney General between an inexperienced corrupt hack an opponent of any reform in Illinois' death penalty system. I'm currently, unhappily, leaning toward the hack, even though she supports the death penalty, too; at least she's mildly pro-reform.) I've gotten robocalls from Jesse White, the black Democratic Secretary of State, and Bill Clinton who is in general being used to rally black turnout and being kept away from swing audiences, reminding me to get out and vote.

I've got no real point here, certainly no complaint. It's just a little odd. Living in Hyde Park has lots of moments like that, and as a white in America I've never before been even a local-minority in this way. I've certainly been both a partisan and a religious minority, and have often thought that I was surrounded by political advertising that couldn't possibly be targeted at me. But that was blanket television advertising, not micro-targeted mailings and phone calls. A new experience.
The always-worth-reading Mark Kleiman wonders whether the gassing of the Moscow theater violated international law. I was sure that I recalled-- from the bad old days of Waco-- that the international law governing chemical weapons explicitly allowed for its use in domestic law enforcement. I recalled correctly. The Chemical Wespons Convention reads in relevant part:

Article I Section 5: 5. Each State Party undertakes not to use riot control agents as a method of warfare.
Article II Section 7: 7. "Riot Control Agent" means: Any chemical not listed in a Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure.
[These two sections clearly allow for tear gas as a device of riot control, just not for warfare. More importantly, when the treaty bans "chemical weapons" it defnes these as]
Article II Section 1:1. "Chemical Weapons" means the following, together or separately:
(a) Toxic chemicals and their precursors, except where intended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes
[And it does on to define the key phrase:]
Article II Section 9: 9. "Purposes Not Prohibited Under this Convention" means: [...]
(d) Law enforcement including domestic riot control purposes.

I presume that the Iraqi-Kurdish case does not fall under this exception. Iraq gassed whole villages in the context of a war; the fact that they were Iraqi citizens doesn't make it "law enforcement."

[Also on Mark's page: a proposal for express-voting booths to alleviate the too-many-voters, too-few-new-machines crunch he foresees in Broward County. Undoubtedly this is a reasonable accommodation. But I doubt whether courts would permit it. It would pose genuine equal protection problems (unlike the bogus equal protection claims from an earlier Florida election). Those who are more literate, native speakers of one of the ballot's languages (I don't know how many languages the ballot is printed in, but inevitably it's fewer than the number of native languages of the voters) and those who are willing to vote a straight-party ticket would be significantly advantaged; they'd be much more likely to be able to vote. Of course, the status quo advantages those who have two hours to spare to vote. But I strongly suspect that courts would find rationing-by-queue to be tolerably impartial, or at least much preferable to rationing-by-straight-ticket-voting-or-literacy.]