Various thoughts on current events with an emphasis on politics, legal issues, sports, and whatever is on my mind. Emails can be sent to email@example.com; please put "blog comments" in the subject line.
One blog that I relied on for electoral analysis predicted a 50-50 Senate (LA is not a lost cause, but 52-48 the other way seems likely) and a safe electoral vote win for Clinton. Recent remarks:
Now that we’ve had a week to digest the results of the 2016 election,
here are some observations about what happened and what the results
might tell us about the future.
The 11/9 post was aptly entitled:"Mea Culpa, Mea Culpa, Mea Maxima Culpa." Others without the specialized skills-set here are saying something along the same lines. I was rather sure Clinton would win though some of the upper-300s electoral votes predictions seemed to me rather optimistic. [The level of assurance makes the gleeful taunting nature of some of the responses rather expected, even if they come off as sore winning.] Polls before the election suggested to me that (sadly) a much closer election was possible. If only it was only that bad. Key differentials, and 50 wouldn't have been enough this time, in the Senate was PA and Feingold losing. The other best shots were Indiana and Florida, two unsavory insider types running though they were our insiders. But, Feingold? Sad.
The analysis usefully provides margins of victory. Wisconsin and Michigan are under a percent (NH went Clinton similarly by a hair); Florida (many feared a loss here) and Pennsylvania (a surprise) by a little over a percent. North Carolina seemed possible, but was by a few percentage points. Obama's success there, however, suggests future potential. The tiny percentages are balanced by significant wins in high population states, somewhat less the other way for Texas (NY/CA have over 20% differentials, while Texas has less than 10%). Absentee voting etc. means the numbers aren't clear, but HRC has over a million more popular votes. This seems to be trending up. The people spoke there too.
[Looking at the map, unless it changes, Clinton could have won Pennsylvanian and Michigan and still lost because Trump won a spare electoral vote in Maine. 270-268. "What ifs" can be cited over history, it being close multiple times. But, imagine that. Think now is bad.]
And, the differentials suggest even different campaign tactics would make it hard to change the final result. Finally, early reports aside, turnout is consistent with 2012 though a few more percentage points voted third party. How that breaks down is unclear and probably cancels out in the long run somehow. The tiny differentials in a few states still make me wary to conclude they had no effect or would not have in two states in 2000. This would warrant further support for some alternative voting system, instant run-off, preference voting or whatever.
A bottom line point to be made here is that "mandate" can be tossed around rather weakly. More people voted for Clinton and the electoral vote in the key states turned on slivers of voters. Over forty percent of the electorate did not vote. Again, who knows how they would split in the end if actually pressured more to do so. People can analyze the results to help Democrats figure out how to succeed in the future, though the basic conclusion I have is that too many felt it important not to vote for a clusterfuck. Beforehand, I basically saw it as a test -- you usually don't have to make those real hard decisions, even if you are given thought experiments. Failed the test. This looked to be a Republican year -- look at history alone as to the presidency going back/forth. Plus, an anti-establishment year. Clinton was not a great choice there. Just thought Trump was horrible enough. Mea culpa.
A final word on the Electoral College. This article critiques it though a telling tidbit was if the popular vote was more evenly apportioned, Clinton would have only won a plurality. This would have sent things to the Republican controlled House under the system in place, which sounds like a mess too. It cites this analysis of original understanding, one that tries to soft soap a bit on the anti-democratic nature. The fact the Framers didn't think the people had the information (given lack of communication provided by today's national media etc.) is a sort of positive spin. Like parents benignly being in charge of children, respecting their interests, but realizing they aren't mature enough to make choices themselves. End result in the same.
We have since then entrusted the people with much more political power, including suffrage generally and direct election of senators. As the article says, as well, the differentials in population between the states then and now greatly increased. The analysis notes one factor involved were small and slave states being concerned. Only half of that concern is of course cited these days and the result in practice turns out to be swing states matter. A few more were in play this time but it sometimes got to the point that one or two states (such as NY) decided the election. The net value of moderation there is unclear especially since there are other ways to deal with that, including the nomination process itself. Plus, we are balancing things here, especially when as much as a million and a half people more voting for one candidate isn't enough.
The Electoral College is not popular (many simply don't really understand it) though an amendment is a long shot since it is not so unpopular that a requite supermajority is present to replace it. Another path is states deciding to allot their electoral votes matching to the winner of the popular vote if their total is enough to get to 270. It is useful to remember that the winner take all policy for electoral votes state by state is not constitutionally required. There are a couple exceptions now, and back in 1796, spare electors seems to be why Adams won. I read once Madison (fwiw) actually supported a district allotment. How that would actually change things is unclear and would average things off too. IOW, some districts will skewer toward one candidate, while another barely so. Both would mean one electoral vote, leading to population vote imbalances being possible there too.
The federalism appeal cited by the Trump side is checked by those who argue "the point" (as if there was just one) was to avoid unfit leaders that are result of misguided unmediated masses (see, e.g., Federalist No. 68). One way to do that is to try to protect the interests of all states, so a regional tyrant would not win. Another is to have people vote electors, who ideally would have the judgment that might not be present in the masses as a whole. Consider the old rule where state legislators, possibly pledged beforehand, voted for senators. But, some independent elector not tied to a specific person really never really was how things worked. It surely doesn't work that way now and the Supreme Court basically accepted it.*
A few are appealing to electors, mind you partisan Republicans though perhaps in various cases not loyal Trump voters (cf. Bill Clinton is an elector in NY), to be "faithless" here. This apparently is being loyal to the Electoral College. Others wish to strengthen rules in place to prevent this sort of thing, of course assuming state power warrants it. Regardless, the first group is a rather forlorn hope, in large part because we didn't set it up to have electors really show independent judgment. Juror nullification is not really supposed to be a thing, even if the inability to challenge a verdict (generally speaking) makes it possible. But, it is still recognized jurors are not supposed to be automans, blandly following the will of judges. Electors are quite different here and it seems quite possible the Constitution warrants giving states express instructions, even setting up fines or only giving electors the limited power to vote for one person.
Anyway, I doubt push comes to shove it would matter -- a few stray electors have yet to actually decided a contest. A differential in electoral and popular vote could have had been itself avoided in 2000 if Florida's votes were counted in a better fashion. This year, like in 1888, the difference is just blatantly in place, no realistic (though some will fear hacks etc.) chance Clinton really won the popular votes in the relevant states to win the electoral vote as well. I somewhat relieved that somewhere between one and two percent differential is involved, different voting systems likely to result in imperfect results. Consider a plurality where a majority is against the winner, but in the end it balances out that way.
I'm not as passionately against the Electoral College as some but am inclined to go along with the popular vote. Why are tens of thousands maybe of vote in even three states worthy of beating the wishes of millions? Region is a rather imperfect way to address interests that simple majority might not offer you. Plus, states still benefit in our system in various ways, even if you ala Madison's druthers had a one person, one vote system in the Senate (a truly fair approach there would cross state lines or more than triple the senators we have now, given some states have less than a million in a country of over 300).
Anyway, we have our system, and too many voted for Trump.
*Ray v. Blair in the 1950s dealt with an elector being required to take an oath to vote for the nominee, but unlike the dissent, broadly honored state discretion here. It did hedge:
However, even if such promises of candidates for the electoral college are legally unenforceable because violative of an assumed constitutional freedom of the elector under the Constitution, Art. II, 1, to vote as he may choose in the electoral college, it would not follow that the requirement of a pledge in the primary is unconstitutional.
The opinion cited history regarding early practice as well as a 19th Century ruling that would come up in Bush v. Gore too:
Doubtless it was supposed that the electors would exercise a reasonable independence and fair judgment in the selection of the Chief Executive, but experience soon demonstrated that, whether chosen by the legislatures or by popular suffrage on general ticket or in districts, they were so chosen simply to register the will of the appointing power in respect of a particular candidate.
This is an interesting case of "expectations" alone not being the test though it was careful to note that even if "the constitution has been found in the march of time sufficiently comprehensive to be applicable to conditions not within the minds of its framers ... subjects expressly embraced within it" must not be revoked. Just what that means is the rub, especially when it includes certain things that are not literally expressed in the text.