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Deborah Pearlstein dpearlst at yu.edu
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Alice Ristroph alice.ristroph at shu.edu
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David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The 2006 Election is not over. This Associated Press article says at one point that eight races are undecided, and at another point that the Democrats lead in two undecided races while the Republicans lead in seven, for a total of nine.
The media is paying less attention to these races because it is clear that both the House and Senate will be controlled by the Democrats. Nevertheless, the difference between a House majority of 230 and a potential House majority of 238 (or 239) can be quite important. For one thing, it gives House leaders a greater chance to form majorities on close votes. For another, it insulates the majority party from attrition in subsequent elections. As I noted before the elections, the Republicans never held more than 232 seats in the House after their 1994 victory. This made it easier than it would otherwise have been for the Democrats to retake control in 2006.
Think of House seats as a sort of random walk. Some years, because of contingencies, one party gains 10 seats, another year, the opposite party gains 10. These variations won't change control of the House if the initial majority is large enough. But the Republicans never had a very large majority judged by historical standards. For example, in 2006, the Democrats had to gain 15 seats to regain the House; that is not a very large margin historically. During the long period of Democratic dominance, the majority party usually had at least 250 seats, and often considerably more.
Gerrymandering can help keep majorities in place, but gerrymanders work more like an insurance policy rather than a guarantee. The more undecided seats that Democrats take in the next few weeks, the more likely they can weather the expected swings in future years.
And, for what it is worth, there are allegations of voting irregularities reminiscent of 2000 in the Thirteenth Congressional District of Florida, where the Republican candidate has claimed a narrow victory to succeed Katherine Harris in spite of the fact that some 18,000 votes seem to have disappeared from the electronic talley (and, of course, there is no paper record). Democrats should be demanding a new election in that district.
I can't help but think that there must be some other way to record the vote separately that doesn't involve paper. The move towards paperless elections, while frustrating in the face of problems with the machines, does present certain environmental benefits.
Maybe a confirmation machine that is separate from the original voting machine that is installed by an independent election oversight organization of some sort? The voting machine transmits your choices to the confirmation machine by cable, you verify that it's true on the confirmation machine. Both machines record your vote, but each machine is managed by a different organization, thereby increasing the difficulty of hacking the boxes. At the end of the night, the vote tallies from both organizations are compared to ensure consistency.
It's not perfect, but it might save some trees--assuming the system is not dumped the year after it's purchesed.
Neither party is likely to get a heavy majority ala the GOP after the Civil War or the Dems after the Great Depression/WWII unless we have the combination of a cataclysmic event paired with outstanding leadership during that event.
Additionally, today both parties poll and market like Proctor & Gamble to give the voters what they want with a slight spin left or right. Our parties are far closer than comparable left and right parties in other democracies. The Dems who took the seats in this cycle often sounded the same themes as their GOP counterpart with the only difference being that they were not part of he status quo. This is the marketing equivalent of placing the phrase "new and improved" on the same old bottle of detergent.