Monthly Archives: November 2016

Symposium: “The Politics of State Constitutional Reform”

From APSA’s Law and Courts Section, featuring short papers by J.H. Snider, Sandy Levinson, John Dinan, and Carol Weissert.  Here’s a description:

When analyzing the consequences of elections for the development of the U.S. Constitution, scholars concentrate on elections for president and senate, on account of their role in selecting Supreme Court justices who are understood to play a key role in bringing about changes in understandings of federal constitutional provisions. But in the 50 states, voters have a wider range of opportunities to influence the development of constitutions and in a more direct fashion….

Law and courts scholars who have turned their attention to the state level have generated a number of studies of judicial elections. Legislature-referred and citizen-initiated constitutional amendments have also generated a fair amount of analysis. Yet relatively little attention has been paid to the periodic revision commission and periodic convention referendum, institutions that will be on display in a 2017 New York convention referendum and 2017 Florida revision commission and were examined in a short course at the 2016 APSA conference organized by J.H. Snider. Thanks to Law and Courts newsletter editor Todd Collins for inviting us to share some of the presentations, arguments, and conclusions from the short course.

The short course is here.

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Cottrell, Herron & Westwood on Trump’s Fraud Allegations

Here’s the abstract to their paper, “Evaluating Donald Trump’s Allegations of Voter Fraud in the 2016 Presidential Election”:

During the 2016 presidential campaign, Donald Trump repeatedly claimed that the presidential election would be tainted by massive voter fraud. Despite winning the presidency, Trump has maintained that position through November. We suspected prior to the election that fraud allegations might dominate the post-election political landscape, and to this end we initiated a research project with the objective of evaluating the relationship between election returns and potential sources of fraud in the vein of Trump’s claims. Our research focuses on non-citizen populations, deceased individuals, the timing of results, and voting technology, and we do not uncover any evidence consistent with Trump’s assertions about widespread voter fraud. Moreover, we do not observe any striking abnormalities in two sets of states recently highlighted as potentially problematic: Michigan, Pennsylvania, and Wisconsin (the subject of ongoing recount efforts) and California, New Hampshire, and Virginia (three states cited personally by Trump). Our results do not imply that there was no fraud at all in the 2016 presidential contest, nor do they imply that this contest was error-free. They do strongly suggest, however, that the voter fraud concerns fomented and espoused by the Trump campaign are not grounded in any observable features of the 2016 presidential election.

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Latest on #NCGov

From AP and NYT, which reports that the State Board of Elections’ preliminary tally has Democratic candidate Roy Cooper leading Gov. Pat McCrory by 9,813 votes, “perilously close to the 10,000-vote difference that would prohibit Mr. McCrory from demanding a recount.”

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Today’s Recount News

CBS: “Clinton Team Sees Recount Effort as Waste of Resources”

CBS: “Jill Stein’s Michigan Recount Efforts”

Detroit News: “GOP Warns Recount Puts Michigan’s Electors at Risk”

The Hill:  “What Stein is Getting from Recount”

Milwaukee Journal Sentinel: “Judge Rejects Stein’s Request for Hand Recount”

Pittsburgh Post Gazette: “Court Hearing Set to Consider Pa. Vote Recount”

Politico: “Democratic senators: No Harm in Trump-Clinton Recounts”

Politico: “7 Questions about Jill Stein’s Recounts”

Vox: “The Presidential Recount, Explained”

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How Will Congress and the Separation of Powers Function Under a Trump Administration?

Christopher DeMuth, former head of OIRA in the Reagan OMB and former President of AEI, has a long, thoughtful essay in the weekend Wall Street Journal in which he explores whether the separation of powers might see a revival in the Trump administration.

In his view, President Trump will not have “the reflexive support of party stalwarts on Capitol Hill that his recent predecessors have enjoyed.”  The revival of a more central role for Congress will follow, he suggests, from the newfound tensions within both political parties, and from the fact that Trump is more of a populist than a conventional Republican figure.

In addition to more vigorous competition between the branches, De Muth also sees Trump as perhaps generating a more bargaining-oriented approach to policymaking, in contrast to the “spectacles” produced by our hyperpolarized, intensely ideological and symbolic politics.  I appreciate his recognition of the way many of us have been trying to insist on giving Congress and congressional leaders tools to create more possibilities for a transactional kind of politics:

Spectacles such as these have given rise to a new school of political realism, led by Jonathan Rauch, Richard H. Pildes, Frances E. Lee and other scholars. Their essential argument, in Mr. Rauch’s words, is “that transactional politics—the everyday give-and-take of dickering and compromise—is the essential work of governing and that government, and thus democracy, won’t work if leaders can’t make deals and make them stick.”

The realists vary in their personal politics. They are united in understanding that, in a nation of diverse and conflicting views, civil peace and productive government require more than trumpeting one’s own positions and seeking to defeat one’s opponents at the ballot box. They also require accommodation through dialogue, negotiation and practical compromise.

As the essay puts it: “In combination, candidate Trump’s audacious policy positions, belligerent rhetoric and zest for deal making seem designed to establish his bona fides as the people’s own Washington wheeler-dealer.”

De Muth acknowledges that “transactional politics and interbranch rivalry are no guarantee of happy outcomes, which depend ultimately on the constitution of the participants.”  His claim is that these are necessary elements of successful democratic governance, even if not sufficient.  All speculative at this stage of course, but provocative speculations about large structural issues in our governance system and well worth a read.

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The New Political Realism: Transactional Politics and Earmarks

Last week, Chris Cillizza of the Washington Post reported that there was “significant support” within the House Republican conference for bringing back earmarks.  Republicans eliminated earmarks when they took the House majority in 2010 as part of “political reforms” that would end “corruption” in Congress.

Cillizza’s piece argues, as many of us have also suggested, that this ban is one example of the misguided pursuit of “political purity” that has contributed to making the political process more dysfunctional.  Of course, voting in favor of restoring earmarks would be political dynamite for any individual member; it’s no surprise that Speaker Paul Ryan has vetoed the proposal for now.  But the fact that the issue even has significant support within the Republican conference and that journalists like Cillizza are pressing the case for restoring earmarks is noteworthy.

Here are some excerpts from his essay:

But politics — real politics — isn’t a theoretical discussion among political scientists. And if you believe that Congress works better when it, um, actually works, then you should be rooting like hell that Ryan changes his mind if/when the possibility of a return to earmarking comes to the floor for avote. . . .

Politics works best when compromise is incentivized, not scorned. Earmarks helped to do just that. They were a lever to pull on the way to the presumed end goal: dealmaking. Without them, compromise became a dirty word, and the GOP leadership — Boehner chief among them — paid a price. His decision to step down from the speakership (and Congress) was fueled by an inability to rally the bulk of the Republican Conference behind proposals he supported. He couldn’t do that because he was, effectively, fighting with one hand tied behind his back because of the earmark ban.

Cillizza references this conclusion, from political scientist Diana Evans 2004 study of earmarking, Greasing the Wheels:  Using Pork Barrel Projects to Build Majority Coalitions in Congress:

‘The irony is this: pork barreling, despite its much maligned status, gets things done.’ ”

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Recount Roundup

ABC:  “Everything You Need to Know About the Election Recount Efforts”

CNN: “Green Party presidential nominee Jill Stein defended her recount efforts Monday, even though she admits there is no evidence of fraud at the ballot box.”

Detroit Free Press: “Michigan presidential recount? Here’s what we know”

The Hill:  “Annoyed Dems Dismiss Recount as a ‘Waste of Time'”

New Yorker:  “The Recount Road to Nowhere”

NPR:  “Trump Officially Wins Michigan As Possible Recount Looms”

Politico:  “Clinton team shrugs off recount effort”

Salon: “Jill Stein sues Wisconsin to go through with vote recount”

Slate:  “Jill Stein Requests Recount in Pennsylvania but Has No Evidence of Fraud”

WaPo: “Jill Stein tries to force recount in Pennsylvania”

WSJ:  “The Recount Hail Mary”

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