Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Sunday, February 17, 2008

The Legacy of Bush v. Gore

There was a time when the Democratic party could choose its nominee as it saw fit. Time was when people would shrug and say, "Well, that's the rules of the game." This was arguably still somewhat true even as late as 1984, when neither Hart nor Mondale could muster a majority of pledged delegates, and the superdelegates handed the nomination to Mondale without any public uproar. And there are still terribly arcane rules by which votes are awarded to state delegations. But two things have changed since Bush v. Gore.

[I know this is a very lengthy post--but I hope you will read it thoughtfully and take it in the good-natured spirit it is written. Given the horse I'm backing in this race, my conclusion may surprise you...]

I'll state the first change now, and get to the last at the end of my post. I'll call this the "Gore" lesson: that the public--at least, the Democratic sector of the public--will not accept a situation where they perceive that unelected delegates have overruled elected delegates. It does not matter that the "elected" delegates are selected by wildly varying processes and are not awarded proportionally. The perception that the voice of the people has been betrayed will ruin the party.

Now I'm just going to come out and say it: for that reason alone, the Democratic party must seat the delegates selected by the voters in MI and FL. Some of you may be tempted at this point just to dismiss this post because I support Hillary. So listen to the wise words of The Law Talking Guy instead... In a comment to the post, Waiting for Gardner, from November 9, 2007, LTG wrote:

I think it is shocking that the Dems (and now the GOP too) have agreed that NH,NV,IA, and SC are allowed to have polls before 2/5, and all others are punished (except Wyoming, which has its GOP caucuses on 1/5, and nobody cares). The shocking thing is that they will disenfranchise Michigan and Florida voters for doing what other voters in other states can do.

LTG also reacted in horror at the specter of Obama "winning" the pledged delegate count only because MI and FL were excluded. In a comment to the post, To Super Tuesday... And Beyond! LTG wrote,

With all the effed-up rules for delegates, superdelegates, and the rest, a brokered convention would be a nightmare. Imagine if Obama were leading in elected delegates, but won because Michigan and Florida were denied seating. Or lost because of party elders and superdelegates. Mississippi Freedom Party, anyone? [My italics]

Some will point out that Obama and Edwards withdrew their names from the Michigan ballot on October 9, 2007 (although their campaigns later encouraged supporters to vote for "uncommitted"). Furthermore, NBC quoted an Obama campaign memo saying he had wanted to pull out of Florida too.

But their decision to pull their names from the ballot was curious. After all, everyone knew there was (and still is) a good chance that the delegates would ultimately be seated anyhow. As LTG wrote in an August 8, 2007 post, Et tu, Iowa?,

The parties have tried to forbid earlier primaries by claiming they won't seat delegates, but nobody takes that threat seriously. Besides which, the main benefit of the early votes was always the public perception of being a winner, not the delegates.

The real reason Obama and Edwards pulled their names was a strategic one. CNN's early analysis of the move by Obama and Edwards:

CNN's Senior Political Analyst Bill Schneider suggested the Democrats who withdrew may have calculated that it was simply in their best political interest to do so.
"If there's no campaign, the candidate most likely to win Michigan is Hillary Clinton," Schneider said. "Her Democratic rivals don't want a Clinton victory in Michigan to count. They want Iowa and New Hampshire, where they have a better chance of stopping Clinton, to count more."

Obama and Edwards made the stategic choice to try to kill any momentum Hillary might gain from Michigan, and they certainly succeeded. But to withdraw from the ballot, reap the benefits thereof, and then argue the results should not count because you were not on the ballot seems like trying to have your cake and eat it too. It certainly seems unfair to disenfranchise those who voted for Hillary just because Obama withdrew his name. The "Gore" lesson trumps everything: failing to "count all votes" in the public's mind (especially those from Florida) just won't fly anymore.

Here is my suggestion of a compromise, which feels the most in line with "counting all the votes" without letting an unelected clique overrule the people. The Democrats should seat the full delegations from Michigan and Florida as is--superdelegates, uncommitted delegates, and all--but then they should not permit any superdelegates from anywhere to participate in the first ballot. Using LTG's useful numbers, that means a vote by 3,584 pledged delegates, of which 1,792 would be needed to secure the nomination. If neither candidate can secure that magic number, then and only then would the voting would proceed to the second ballot, where superdelegates would be able to vote and break the tie. And yes, there is a possibility that the first ballot would not be determinative since there are 26 Edwards delegates and at least 55 uncommitted delegates from Michigan.

But Hillary has not suggested this path. She is focused on the number 2025. And that, I believe, is because of that second lesson from Bush v. Gore I alluded to earlier. I will call it the "Bush" lesson: that the first person who can reasonably claim to victory by the rules, even if they are unfair rules, often wins anyway--possession being 9/10 of the law. So long as it seemed to the public that Gore was trying to overturn a victory that had already happened, he had little chance of succeeding. I believe this is precisely what Hillary hopes to accomplish by racking up the superdelegates early and talking up 2025. And this saddens me.

Although the compromise I suggest likely favors Obama--as LTG explained in the last post of his I referenced, Michigan and Florida are not really the "ace in the hole" Hillary supporters might hope for--I feel it is the most democratic thing the Democrats can do. Whichever candidate wins needs to win the "Gore" way, not the "Bush" way. Given the history, this is more true for the Democrats than anyone else: it's not just who wins, but how they win. Here's hoping (wishful thinking, I know) that the Democratic Credentials Committee recognizes both lessons from Bush v. Gore, and heeds the right one.

15 comments:

freeridersupermonkey said...

DrS, I don't agree with your compromise. The one important pro of written rules is that people can trust them; overthrowing those rules in whatever way would exactly give people the impression you want to avoid, namely that some party bigshots give the nomination to whoever they like, independent of voter's opinions. Thus, in my opinion, superdelegates should have a vote while MI and FL should not. I totally agree with you that Obama and Edwards made a strategic choice about MI and FL, but to me that's beside the point. Also, I agree with you that it would be problematic if the superdelegates hand the nomination to the loser of the primary/caucus race; therefore I think each superdelegate should think very hard about the effects of not support the voter's choice. However, in the end each superdelegate still has to make an individual decision and if they change the outcome of the delegation process then it's just proof that they are there for a reason(if you expect them to follow the popular vote or any other of rule, why would there even be superdelegates?). I think it would be much more acceptable than changing rules ex post.

Dr. Strangelove said...

You are correct that I am proposing to change the rules after the contest has already begun. And I agree that this is, in its own way, an unfair thing to do. But that's where I think the legacy of Bush v. Gore may overshadow the process. Before the 2000 election, I certainly believe you would have been correct, that using the rules as is would be more acceptable than changing the rules after the fact. Now, however, I personally believe that Democrats in particular are really sensitive to (a) votes not being counted due to some technicality, and (b) a small group of unelected people deciding an election.

Nevertheless, I think your view will probably prevail. I think they will stick with the current rules--if only because changing them will be so tough. I hope that the margin of victory among pledged delegates is such that MI and FL would be irrelevant, and I hope the superdelegates will not overturn that decision.

You said that, "if you expect them to follow the popular vote or any other of rule, why would there even be superdelegates?" And I answer: they were a mistake then and a disaster after Bush v. Gore.

freeridersupermonkey said...

"[Superdelegates] were a mistake then and a disaster after Bush v. Gore."

I totally agree with you on this one. Guess I didn't make that clear before.

I also agree with you on this:
"I hope that the margin of victory among pledged delegates is such that MI and FL would be irrelevant, and I hope the superdelegates will not overturn that decision."

These rules certainly need some work to avoid trouble in the future; for this year, in my opinion, the damage is done and it's best to stick to it.

The Law Talking Guy said...

Two things.
First, Florida and Michigan are different. Obama wasn't even on the ballot in Michigan, so there are different arguments that can be made about Michigan's delegation. Those can be resolved, somewhat, by allowing Obama to claim as pledged all the 55 "uncommitted" delegates. If this is done, then seating the delegates gives HRC only a net 68 delegate gain. Edwards gains another 13 delegates, making his total of pledged delegates 25 (he has some superdelegates still, but they are unlikely to do as Edwards tells them).

So, the bottom line is that if Obama wins the pledged delegate battle by about 100 votes (he's up by about 130 now depending on the count) then they can seat Michigan and Florida with little difficulty.

The Superdelegates are becoming less of a problem. It is becoming increasingly clear that the SDs are not going to overturn the will of the voters for all the reasons we have discussed here. Nancy Pelosi is the latest to say so.

The Law Talking Guy said...

I think if neither candidate wins by 100 votes or so, the superdelegates it will be hard for either to claim that he or she is the winner. So that's why I think MI and FL don't matter too much. I foresee Obama potentially winning the pledged delegates by 150 votes or so, then making a deal to seat MI/FL and have the superdelegates endorse him as the "winner." That's my favored scenario.

If you are an HRC supporter, you want the delegate count to be so close that MI/FL will make a difference, then lean on the SDs.

It stinks, really. Whether it's from the SDs or Michigan -where Obama wasn't even on the ballot- Clinton has a built-in advantage that is just unfair. And people will be crying foul if she becomes the nominee AND further denies Obama the VP slot afterward. Worse, they will not donate and some won't bother to vote for her.

Raised By Republicans said...

I don't want to restart an old argument but I find it interesting that the debate between Freesupermonkey and Dr. S. mirrors the debate Dr. S and I had about Madison vs Plato that spunn off from our debate about redisctricting.

Essentially, Dr. S was arguing Plato's position: that it would be best to have a very wise, "non-partisan" leader or group of leaders make decisions. The difference between the debate about MI and FL and this older debate being of course that, then, Dr. S. was advocating changing the rules ex ante to ligitimize this group of Platonic guardians' ad hoc decisions.

I was arguing the Madisonian position: that rules, not people, were the best guarantor of liberty.

Anyway, I think it's interesting that we keep reprising these kinds of fundamental debates. By the way, I agree with Freesupermonkey.

The Law Talking Guy said...

I should clarify my August 8 remark. I said "nobody takes it seriously" that the delegates won't be seated. However, that changed. Obama and Edwards took their names off the MI ballot, and all candidates, including Clinton, agreed not to campaign in MI or FL (Clinton broke that promise w/r/t Florida, I think).

So, the threat was taken seriously, and the DNC ratified its decision in November to make it unmistakable. You now have a difficult situation because Clinton wants to change her position on these delegations. She would do better to publicly stand by her earlier position of supporting the DNC. The seating of the delegates to happen, if at all, as part of a compromise that Clinton is not pimping.

Dr. Strangelove said...

Obama and Edwards voluntarily took their names of the MI ballot as a strategic decision in their own political interest. Their ploy worked beautifully, just as they hoped it would: Clinton got no momentum from Michigan at all. Of course, back in October everyone thought it would be all about momentum. Now that the situation has changed, Obama regrets his decision to abandon Michigan for short-term strategic gain. Too bad. He made his bed.

That being said, if I were an "uncommitted" delegate from MI, I would probably end up choosing Obama because those who voted for me had an option to choose Hillary and did not do so. But Obama should not be awarded them for free. He has to work to reclaim them just like anyone else. (He did piss off some people in Michigan when he quit their ballot, you know.)

Regarding the Madisonian/Platonic thing, I do not see the parallel, RbR. Superdelegates are about as far away from "non-partisan" as you can get--and political cronies are no one's idea of Platonic guardians. (My notion of "non-partisan" groups may be impractical, impossible, or just plain wrong--but it's sure not superdelegates. I reject that now as I always have.)

To me, what it comes down to is this: the winner needs to win in a way that feels democratic. As LTG pointed out, if Hillary wins only because of superdelegates, or if Obama wins only because MI and FL were denied seating, the other side will cry foul--and it will sour the whole thing. That's why I suggested what I did. And I understand that move would not be in HRC's favor, the way things look today. So be it.

Dr. Strangelove said...

Maybe I misunderstood RbR's remarks on Madison/Plato... I had thought he was saying I was inconsistent, but now I am not so sure. Could you explain that thought a bit more, RbR?

LTG: You wrote, "I think if neither candidate wins by 100 votes or so, the superdelegates it will be hard for either to claim that he or she is the winner." A word or two seems to be missing: what did you mean to say?

Actually, what I fear is that Obama will win the pledged delegate count by a handful of votes, but Hillary would have won if MI and FL were not denied seats. Those who voted for her in those states will feel terribly disenfranchised. Then imagine if superdelegates side with Hillary and give her the nomination, on the grounds that the pledged delegate count was at best indeterminate.

Ugly!

Raised By Republicans said...

Dr. S. I was absolutely NOT saying you were being inconsistent. On the contrary. In both cases you seem to put more faith in a wise compromise that would depend on how some carefully chosen and wise (presumably without conflict of interest) higher authority interprets the needs of the situation at hand.

There is a difference though and that is in the earlier debate we were advocating different institutions. Here it is a clearer question of institutions vs. ad hoc decisions by community minded authority.

I was merely pointing out that these kinds of fundamental questions keep coming up in different applications.

Dr. Strangelove said...

Oh, now I get it--thanks, RbR. At the end of my post, I said I hoped the Democratic credentials committee would see the light and fix the process. I was implicitly placing that committee in something of the Platonic Guardian role in my thinking. And now that he mentions it, I see just how shallow those hopes are. I read somewhere it is a 176 member committee. If so, then for that reason alone I expect no action.

The Law Talking Guy said...

What I meant to say was that the superdelegates will have to make a real choice if the electoral results become close to within 100 delegates or so.

I could not disagree more with the suggestion that Obama and Edwards abandoned Michigan in order to make Michigan not count. Not so at all! They did so to court IA and NH which are jealous of their special spot. Clinton thought it would not matter. All of them recognized that Michigan would not get any delegates, no matter what. That is the bed they all lay in, including Hillary.

By the way, Obama should not have to "earn" the uncommitted vote by some new contest. Everyone knows the "uncommitted" vote was intended primarily to be for Obama. Detroit's black population voted 72% for "uncommitted" - do you think they meant to vote for Kucinich? That's obvious. Put another way, not a single vote for "uncommitted" was for Clinton, because that option was deliberately rejected by those voters.

The Law Talking Guy said...

"Actually, what I fear is that Obama will win the pledged delegate count by a handful of votes, but Hillary would have won if MI and FL were not denied seats."

Don't fear that: if Obama only wins by a "handful," that will represent a failure of his campaign to catch on, a failure of momentum, and the superdelegates will be relatively empowered to make a compromise. If Obama gets 1660 pledged to her 1640, he will be hard pressed to claim "victory" particularly given the MI/FL thing and the superdelegates. Also, for it to be that close, as I said, it will represent a real stall for him.

Of course, given the delegate situation as it stands, what Dr.S says he "fears" probably represents the best possible outcome for Hillary at this point. Think about that and your own rust belt/island talk for a moment, and ask yourself if you really hope Clinton can yet gain enough of the remaining delegates to split the party, or whether it wouldn't better if Obama continues his momentum, gains a clear majority of pledged delegates, and unites the party. I assure you that all the superdelegates are hoping for the latter, knowing that it is now virtually impossible for Hillary to win a clear majority of pledged delegates!

Dr. Strangelove said...

I agree, it is virtually impossible for Hillary to win a majority of the pledged delegates. But I think it is reasonable for her to narrow the gap to 70-80 if she does well in the remaining primaries she could win.

And then, with MI, and FL, she could argue that gap would only be 20-30. Which, incidentally, would be just about the size of Edwards' delegation (39) the 13 Edwards delegates from FL are included. Which leads to some interesting possibilities I hope we never have to investigate.

But you are quite right: the only way Hillary can possibly narrow the gap is if Obama's recent victories--notably in the Potomac primaries--do not continue. Wisconsin and Hawaii will be interesting to see tomorrow.

The Law Talking Guy said...

My other question is whether it would be a good outcome for the party if Clinton were to pull that close. I don't see how it can be. The best outcome for the party is for one candidate to take a clear lead and be accepted by the public at large, therefore, as a winner. Clinton probably can no longer do this. That is another reason to support Obama now - to unify the party before the convention.