Election this year for president, Congress – and Supreme Court

In picking a president and Congress this year, voters will also be picking a Supreme Court.

After the unexpected death of Justice Antonin Scalia, the Court consists of eight justices, four appointed by Democratic presidents and four by Republicans.  President Obama nominated a moderate lower court judge to fill the vacancy, but the GOP Senate leadership blocked consideration until after a new president takes office.

The Court was once seen as a non-partisan body, though hardly non-ideological.  For many years, there had been a split between conservatives and liberals, but that has become a division along party lines, between Republicans and Democrats.

Depending on which side dominates, the Court may lean one way or another.  With all nine justices, it might be influenced by a single swing-voting justice.

Congress is tied in partisan knots, so the Court has become the American super-legislature, creating some of the most important new laws of the past decade.

Since Scalia’s death, the Court has become as deadlocked as Congress itself.  The new president’s nominee will tip its balance.  It’s likely that Hillary Clinton will be elected, meaning the replacement of a conservative majority by a more liberal one.

One more step is required before that happens.  Her nominee would have to get the approval of a majority of senators.  Under Senate rules, 60 senators would have to agree to allow a vote on that approval.

When Republicans, then in the minority, denied the 60 votes to Obama’s federal judicial appointments, the majority Democrats changed the rules, eliminating the blocking vote for all federal judges except the Supreme Court.

If the Democrats control the Senate after the elections, they will be able to change the rule for the Supreme Court as well, clearing the way for a Clinton appointee.  If not, she and the GOP leadership would have to find a way to compromise on a new swing-voting justice.

A single decision by the Supreme Court illustrates both its legislative role and the importance of the election on its future.

In 1965, Congress passed the Voting Rights Act.  This law gave the Justice Department the power to halt discriminatory laws before they could be used to prevent voting by African-Americans.  In places where there had been a history of such discrimination, laws or rules would have to gain its advance approval.

As the law began to be applied, the number of African-Americans registered to vote, mainly in the South, increased.  Congress extended the law to stimulate and maintain this increase.

In 2006, it again voted an extension with strong support by both parties.  In the House of Representatives, the extension passed by a vote of 390-33.  In the Senate, the vote was 98-0.

In 2011, an Alabama county challenged the law, claiming that the high percentage of African-American registered voters showed that Justice Department pre-approval was no longer necessary.  The case made its way to the Supreme Court.

In 2013, by a 5-4 vote along party lines, the Court ended pre-approval, though the Justice Department could still bring lawsuits against discrimination.  While it recognized that “voting discrimination still exists,” it said that pre-approval could not “be justified by current needs.” 

In other words, with higher African-American voter registration, there were no longer “current needs.”

This was clearly a political judgment.  Suppose crime sweeps a city.  More police are added and crime subsides.  Can the city now cut the police force, because of reduced crime or is the presence of more police what keeps crime down?  In effect, the Court ruled the city should cut the cops.

Five justices, none of them holding elective office, overruled the huge majorities in both houses of Congress.  They substituted their political judgment for that of the elected members of Congress.  They said the Constitution required such a decision.

Right after the decision, North Carolina adopted discriminatory laws it had been blocked from passing.  One official reportedly said he understood that was the purpose of the Court’s decision.  Several other states took similar actions.

A different Supreme Court could take a new look at the 2006 congressional extension, based on the new set of facts resulting from the states’ discriminatory actions.

While this is not the only case where the Court made a legislative judgment, it highlights one of the most significant aspects of the presidential election.  But the candidates hardly mention it, though a questioner in the second debate raised it.

Blocking an Obama appointment, Senate Republican leaders wanted voters to “elect” the new Supreme Court justice.  They may do exactly that, without even realizing it.

Polls, electoral votes can differ widely

How could this week’s election in the country of Colombia tell us anything about the U.S. presidential election?

Simple.  Reputable polls there forecast an overwhelmingly favorable vote on the peace deal between the government and rebels.  The agreement lost by a slim margin.

The moral of the story for us is that American media focuses far too much on polling data about the presidential campaign.  In many national polls, both Democrat Hillary Clinton and Republican Donald Trump score in the forty percent range with only a small gap between them. 

National polls are wrong for two reasons.  First, major defects have undermined the accuracy of the surveys themselves.  Second, the president is not elected by the popular vote they try to measure, but rather by the Electoral College.

Polls have serious flaws.  Many people refuse to answer.  That throws off the random selection of participants, essential for a valid result by which the survey predicts the actions of all voters.

Pollsters adjust responses to compensate for imbalances between women and men, Republicans and Democrats, old and young, north and south.  Some pollsters do better than others, but the results are never just right.

Of course, the questionnaire itself may be biased and the questions used by one pollster may not be the same as those used by another.  And the quality of the pollsters from one state to another is likely to vary.

Some polls are conducted by recording machines, not real human beings.  So pollsters do not know if the person responding is the person they wanted in the sample.

State-by-state polling reduces the error built into national polling, but polling defects can deny us an accurate picture of the election.

The U.S. uses the secret ballot in elections for good reason.  Voters may not want to reveal how they are voting and may even wish to misdirect others about their intentions.  There’s nothing wrong with providing a less than truthful answer to a pollster, and it is likely that some people do.

Such misdirection may also apply when panels of supposedly undecided voters are assembled to ask candidates questions or rate how they did in debates, often in what are known as “focus groups.” 

There’s no way of knowing if those selected are truly undecided or campaign plants.  It’s suspicious when voters, after hearing sharp differences, say they are unmoved by a debate.

Finally, some so-called surveys are conducted among participants who select themselves.  These polls are hardly “scientific” and are meaningless as a gauge of voter sentiment.  They are often used by the candidates themselves.

The result of all these weaknesses in polling, given the great daily attention by the news media, is that voters, who may be influenced by the results, are almost certainly misinformed.

Even worse, the media and many voters are influenced by national poll results, but there’s no nationwide election.  The presidential election is conducted state-by-state. 

According to the Constitution, voters don’t cast their ballots for president, but vote for Electors, people who will cast votes for president on behalf of each state.

The Electors form what is known as the Electoral College, reflecting the original constitutional compromise that recognized both population and the individual states.  Each state gets a number of electoral votes equal to its number of members of the U.S. House of Representatives plus two, the number of senators.

In 49 of the jurisdictions – 48 states plus the District of Columbia – all the electoral votes go to their popular vote winners.  It does not matter if the winner had a one-vote margin or a half-million-vote margin.

Maine has four electoral votes.  Two are allocated to the statewide winner.  Each of the other two is selected in one of the two congressional districts.  So the Maine winner may gain three or four of the state’s votes.  Nebraska, with three congressional districts, adopted the Maine plan.

The Electoral College undermines the validity of national polling results.  Clinton may win by a big margin in California and Trump by a big margin in Texas, but their excess popular votes cannot be used elsewhere.

The system works exactly as intended – to help small states count in presidential elections.  It gives Maine almost twice the weight as population alone would give it.

In Colombia and in the recent British vote on Brexit, the polls were wrong.  These were both major, national elections.  The polls may also be wrong here as well.

Most likely, it’s advisable to decide on voting without allowing yourself to be influenced by questionable polls.

Rank-choice voting revealed: costly, complicated, undemocratic

Supporters of ranked-choice voting have revealed two important facts about the proposal.

First, they believe that using it will change voter behavior and make us get along better politically with one another.

Second, they implicitly acknowledge it is complicated and unprecedented by running a series of mock elections to select people’s favorite beer.

But they have missed two important facts.  Ranked-choice voting is more expensive than either the current election system or any accepted alternative to plurality elections in which the candidate with the most votes wins.

And the proposed system is undemocratic and far more vulnerable to tampering than the current system.

Let's take a closer look.

In order to win a ranked-choice election, a candidate might need the second- and third-place votes from supporters of other candidates.  Supporters think that candidates will go easy on one another to pick up those votes.  That would bring a change in the political atmosphere, they say.

But today’s deep partisan divisions are not likely so easily to give way to political peace.  It may prove difficult for ideological candidates to gain back-up support.  Portland’s non-partisan mayoral race is a poor predictor of party politics.

In fact, if candidates line up deeply divided on the issues, it is far from sure that in critical elections voters will even cast second-choice votes.

The state needs a system that will produce compromises, but that won't happen because of what is essentially a vote-counting gimmick.  Forging compromises is a question of leadership.

The complexity of ranked-choice voting is obvious.  Instead of simply voting for the candidate you prefer, each voter must have an election strategy.  They have to guess at what will happen to their back-up votes.

For example, in a four-way race, a voter who had supported only the first two candidates eliminated would then be stripped of any role in the ultimate election.  To have their votes count in the last round, they would have had to vote for their first- and third-favorite choices, skipping the second.  Confusing?  Absolutely.

Proponents forecast a change in human behavior because of their system.  But using such forecasts as the main argument in favor of a proposal is risky.

Then, there's the higher cost of ranked-choice voting.  According to the Maine Secretary of State, the cost to the state of such an election would be about $910,000, compared with $248,000 under the current system.

If Maine allowed a run-off election between the two highest vote getters, the cost would be only twice the current amount.

Another solution would be to have all candidates run in a single primary with the top two running in the general election.  Used in California, that system would cost a bit less than today.

Though the focus is on the governor’s race, at any one election there could be as many as 190 ranked-choice races to count:  the governor, a U.S. senator, two U.S. House members, and 186 members of the Maine Legislature.  Any single voter could face a ballot with five ranked-choice votes.

One of the reasons for the higher cost of ranked-choice elections is the need to transport all ballots to a single counting location.  They would then be run through a computer.  Contrast that with more than 450 voting locations today, where the votes can be checked by direct viewing and the results easily totaled.

A single computer would be far more vulnerable to tampering.  And any foul play would be invisible and might not be discovered for months or years after the election.

Finally, there’s the matter of democracy itself.  In the current system, a run-off or a top-two primary, voters can understand the consequences of their choices.  In ranked-choice voting, voters cannot foresee the effect of their second- and third-choice votes.

Ranked-choice voting is not used in any federal or state election.  Plurality voting, as in Maine, is used in 39 states.  The rest use some form of run-off. 

The reason is simple.  In any currently used system, voters know the consequences of their votes.  By contrast, ranked-choice voting is a costly shot on the dark.

(Column in Portland Press-Herald 9/30/16)

Why many voters ignore Trump’s negatives

Donald Trump is an egomaniac, a racist, a liar, and a cheat, and he has no idea of public affairs or foreign policy.

So say his critics and opponents, some of them members of the party that has nominated him for president.  The media has uncovered his misdeeds, some of them possibly illegal.

If that's true, why do the numbers crunchers find that he has anywhere from a 14 to 44 percent chance of being elected?  Apparently, many people simply deny his negatives or they don’t matter to them.

There seems to be several, overlapping reasons for his unexpectedly good chances.

First, there are die-hard Republicans, who sound like the old “yellow dog Democrats.”  They were said to be willing to vote for a yellow dog on their party's ticket rather than any Republican.

These voters worry about the long-term survival of the party if it were wiped out in a national election.  They may not like Trump.  They only need him to do well enough not to ruin the GOP brand and harm its other candidates running this year.

Then, there are Americans who worry about the passing of the old order in which white men dominated government and the private sector.  They may think equal treatment of women and minorities is merely “politically correct.”  Even worse, they may be racists who believe they have at last found their public spokesman.

Trump may be a demagogue, but he sends these people signals that he would be a president who would listen to their concerns.  When says he will “make America great again,” they tell the BBC that they hear “make America white again.”  These are the voters Hillary Clinton ill advisedly called “deplorables.”

Estimates of the number of voters holding these views range from five to 25 percent.  Add them to the die-hard Republicans and Trump can starts counting votes from a good base.

And some voters dislike Clinton so strongly they will vote for Trump as the lesser of two evils.  Many of them can be found in the first two groups. 

She has not reduced the problem.  Clinton comes across to many as untrustworthy, mainly because she reveals so little of herself.  She is far too much a lawyer, using arguments and excuses that might work in court but don't convince voters.  Trump tries to make Clinton’s greater experience work against her.

The Democrat might be more open about herself, her specific actions when in office, and her mistakes.  A more revealing and humble candidate, giving off less of an aura of superiority to the rest of us, could reverse some mistrust of her.

She has a problem with the media.  As Trump's faults pile up, the media seems determined to match them with her errors.  That kind of reporting is what passes for being fair and objective.  Some voters accept the supposed equality of error as true.

Lacking much positive to say about Trump, the media says little positive about Clinton's record in helping youth and serving in public office.  That kind of reporting balance is inadequate and unfair.  The debates may force change in how s is covered.

Finally, frustration with the failures of the federal government to free itself from total partisanship and to find compromises has led to many believing that only radical change would work.  With Sen. Bernie Sanders gone from the race, only Trump offers the prospect of such change.  The news that no Fortune 100 CEO supports Trump is probably a plus for him.

Trump has no clear policy to bring about change and end gridlock.  He seems not to understand that he cannot use his negotiation practices and bravado to overrule Congress or to get other countries to acquiesce in his foreign policy.

Still, the political situation seems so desperate to many voters that they are willing to give Trump a blank check.  They don't know what he would do, but they see it as a certainty that he would end Washington's business as usual.

If Trump can avoid offending some of these voters by racist outbursts, they could add significantly to his support.  With them, the polls show he closes the gap in the popular vote.  Plus Trump believes that some voters will not divulge their support for him to pollsters.

Trump’s shortcomings may not matter to his supporters, and hammering on them won’t change their view.  The result is this is turning out to be an election that Clinton is trying to save, but could be Trump's to win.