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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu 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 Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts The Primary Solution
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Monday, September 03, 2007
The Primary Solution
Stephen Griffin
Yesterday, the NYT had an editorial on the presidential primary mess. The system has been falling apart because of the desire of states to have early primaries. The Times mentioned some prominent solutions, which basically involve being fairer to all states. Funny, I thought the point of the nominating process was to select a candidate who has the greatest chance of winning the general election. Surely some thought should be given as to how you could design the process so as to maximize the chances this will happen. Perhaps this is asking too much of careful design, but there is a possible solution to be considered. Leaving aside the knotty question of the sensitive feelings of Iowa and New Hampshire, suppose you focused on the most important states defined in terms of the general election.
Comments:
Lederman's right. Iowa and NH have flipped between the 2 parties in the last 2 cycles, by tiny margins.
I live in California. I therefore have no vote for President, in the primary or in the general.
When proposals are made to fix this in the general (i.e., by dividing up California's electoral vote count instead of a winner take all), we get told that this would be terrible because Republicans will get some of our electoral votes. When proposals are made to fix this in the primary (by allowing California to have its primary in the same timeframe as Iowa and New Hampshire), we are told that Californians aren't as smart and politically savvy as Iowans and New Hampshirites, that our campaigns are too expensive and insufficiently personal, and that we wouldn't select a candidate who is likely to win the general. So the bottom line is, our vote doesn't count because some peoople have decided that the election would be "better" if it didn't. Pardon me if I don't find that logic persuasive. You could justify disenfranchising just about anyone based on the same arguments.
If you allow fence sitting states to choose your party's candidates, then you end up with fence sitting candidates rather than leaders.
If you want candidates who are true to your party's principles, have the most Red and Blue states go first. I am sure someone will rejoin that this leads to partisanship. I would hope so. I want the great issues of the day being openly joined, not obfuscated to avoid offending voters. To hell with RINOs and Blue Dog Dems. Let the GOP be the GOP, the Dems be Dems and let the voters have a clear choice.
The problem is that the primary electorate is different from the general electorate. Virtually everyone who votes in a party's primary is going to vote for the party's nominee...but that's not nearly enough to win the general election. And the "median voter" for the primary is going to be radically different from the one in the general election.
Consider New Hampshire. If the ability to win the state in a general election is predicted by the ability to win it in the primary, then why have Democrats historically had such difficulty there, when the winner there wins the nomination more often than not?
Perhaps we should ask whether, ala Hartz, the state-based obsession is an irrational attachment, not to liberalism, but to practices rooted in a constitutional compromise that continues to keep our thinking in a straitjacket. Does it really make sense to think in terms of states as the organic units to organize presidential primaries, except, of course, for the idiocy that is the electoral college? As long as we are constructing idealized solutions, why not eliminate the role the states in the primaries altogether. After all, parties are, as William Riker noted, endogenous institutions: they are not IN the Constitution.
My personal preference is that the primaries run in at least roughly acending order of expense of campaigning. To start with the expensive states is to place such an emphisis on initial resources and media exposure, that you might as well just conduct an audit of the candidates, and poll journalists, and leave voters out of the matter altogether...
I can think of all sorts of other reasons besides "to select a candidate who has the greatest chance of winning the general election" for why we might want to have primaries. If we just want the "greatest chance of winning the general election", why not have the general election and get it over with? Oh, yeah, because the point is for the party, those regular supporters who will be supportive again, to pick someone they like and actually want to support. That's why the number of delegates a state gets depends on the number of people in that state who voted for the party last time, not just the total number of people.
Dilan, I just moved to California from Oregon. I'm pleased as a peach that my vote counts. Oregon holds its primary in May, doesn't have enough voters to make it worth campaigning in, and is just barely consistently Democrat theses days. You (Dilan) do bring up a really important point, though. How insulting is it to be told that we "aren't as smart and politically savvy as Iowans and New Hampshirites"? Perhaps what they really mean is that we have a lot more Latino voters? It's the only thing I can think of.
From an overseas perspective, if you're going to have a primary system, why don't you have all primaries on the same day nationwide? That would eliminate the geographical campaigning incentives that derive from random (or non-random) timing decisions (and temptations) by individual states. It may make things harder for the candidates, but isn't it a more accurate reflection of Election Day itself?
Matthew Palmer
From an overseas perspective, if you're going to have a primary system, why don't you have all primaries on the same day nationwide?
Doing this would give even greater advantages to those candidates who are well-known and can generate the funding necessary for a nationwide campaign. There is an advantage to this, in that such funding will be necessary for the general election. The disadvantage is that it privileges those currently on the national stage to the disadvantage of, say, state governors or others who might not be as well-known nationally.
Leaving aside the knotty question of the sensitive feelings of Iowa and New Hampshire, suppose you focused on the most important states defined in terms of the general election.
"Sensitive feelings"? I wonder what an early primary in those states does percentage-wise to their annual income from tourism? I'm not saying they're black holes of no interest, but contrary to California or Florida, I can imagine that the primaries have significant enough impact on local economies that fighting to keep their early position might be worth it for more than tradition's sake.
Swing states are part of the problem, not part of the solution. And the main problem is the Electoral College. Scheduling the primaries is a secondary (word play intended) problem.
I can live with plans to rotate the primaries from one election to the next according to a system based on size and/or region. But I'm troubled by any plan that rotates primaries based on any political criterion. That includes swing states (Stephen Griffin), safe states (Bart DePalma), and cost of campaigning (Brett). I'm ambivalent about the last of these because I'd like to see more candidates stay viable longer, and than means finding ways to offset the advantage of having lots of money early in the season. Public financing comes to mind, combined with one national primary day. And, as long as we're dreaming out loud, a constitutional amendment adopting a national popular vote using IRV for the general election.
I would create a rule that allows no more than 2 states to go per week - and they must go on different days (i.e., Tuesday/Saturday) to create maximum media exposure.
I would also, the first go-round, have the order of the 50 states be picked completely at random. In succeeding years, the states would be divided into 2 groups: Every state that voted after there was a mathematical winner the cycle before would be put into a first group to be picked at random, and then every one else would then be put in a second group to be picked at random.
"I can imagine that the primaries have significant enough impact on local economies that fighting to keep their early position might be worth it for more than tradition's sake."
Ding Ding ding. Give that man a star for the day. Backing up NH in its determination is the Mass, Maine and Vermont TV media and all politicians in those states who want friendly TV coverage or with presidential hopes of their own. That last category includes every Massachusetts politician who wins a statewide election as well as Vermont governors. Nearby states with overlapping TV coverage get heavy advertising and campaign visits to get on the 6 o'clock news before the NH, not their own primaries. The federal election financing includes state by state primary spending limits. So, advertising on Boston TV covers Southern NH and the Bangor and Portland Stations are viewed in the more northern areas. All the while, the money is not being spent on NH for election law purposes. So there is serious money riding on a NH primary in four states with eight very self-interested Senators, four very self-interested governors, and a whole host of senior democratic congress critters. P.S. Has anyone EVER gone to Iowa as a tourist? (Driving through on the way to somewhere else doesn’t count).
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