an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
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 princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
It appears that John McCain is the anointed (at least by the press) nominee of the Republican Party, not least becasue he carried a number of Northeastern states in which he basically stands no chance of winning in November and because he won 33% of the vote in Missouri and, apparently, 44% of the Republican vote in California. As to the former, the winner-take-all feature had been engineered to slingshot Rudy Giuliani into the lead. Obviously, things changed. (California is not winner-take-all for the Republicans.) Missouri is also a winner-take-all state, which means, by definition, that a candidate rejected by 67% of the relevant electorate can nonetheless "win" because of being first-past-the-post. Perhaps McCain might have won in a run-off or alternative transferrable vote, but there is certainly reason to doubt this in Missouri.
I obviously wasn't watching all of the channels and assorted pundits, but my impression is that most of them, like most of the press in general, are hopelessly addicted to horseracing, where indeed first-past-the-post is everything. But isn't it a bit odd that the candidate for one of the major parties might well not represent a majority of his party, especially in the states where he will inevitably have to concentrate his fall campaign? (I would, of course, much prefer to eliminate the electoral college, but that's irrelevant. The campaign will be structured by the electoral college, which means that McCain will not be spending much time in New York or, I suspect, California.) Democrats, of course, have eliminated winner-take-all contests, which means, I'm delighted to say, that, among other things, the Texas primary will matter, for the first time in many years. (Though I confess I don't expect to see the eventual Democrat nominee spending much time in Texas during the fall campaign itself.) Still, the winning candidate, whoever he or she may be, will probably be able to demonstrate the support of a majority of the Democratic voters, which is no small thing. Of course, the wild card is if Sen. Obama has both a delegate lead and a popular-vote lead, but the "superdelegates" decide to throw the nomination to Sen. Clinton. That, I think, would be a serious mistake, though, of course, it would be "within the law." Perhaps we can also look forward to an extremely bitter floor fight over counting the Michigan and Florida delegates that Sen. Clinton will claim to have won fair and square. In any event, we are certainly being led to understand exactly how important formal voting rules are for both parties. And we're getting a good "natural experiment" on the consequences of different rules.
I not convinced that McCain cannot beat Clinton in California, maybe not New York. Vera Drake is about the only thing standing between me, an Obama voter, and casting my ballot for McCain.
Hey, on the international stage, her self-righteousness on international gender and labor issues is just as dangerous as his gun boat diplomacy.
But I'm also not sure that by definition, majorities are so important. that race had three distinct contenders. he did what he had to do--win.
as a [d]emocrat, my concern is not for majorities, per se, it is for voices and persons appearing in public spaces, like the ballot. I could just as easily say the more the better, even if that means no one wins a majority.
You know, supposed progressives at Yale and in the ACS have been going on and on about changing "liberal" to "progressive," reaching out to the people, winning back the south and midwest for progressive democratic candidates. Obama is actually doing all of that now, and it seems like the back-room "machine" might quash it.
If the superdelegates ignore yet another grass-roots candidate in favor of Clinton II, isn't democratic politics dead forever? How many elections do you have to lose before you collectively figure out that this is a democracy and the people won't sit for enlightened elitism.
Lawyers (and law professor pundits particularly), need to ask themselves hard questions about why they prefer voting rule gamesmanship, convention floor fights, and enlightened superdelegates to gras-roots stump speeches and engagement with voters. Have we all pursued rationality so far that we are incapable of democratic moments?
The purpose of winner take all rules in the primaries and the electoral college is to give individual states greater power rather that relegating them to being a mere reservoir of voters.
The "moderate" GOP in NE states which adopted this system wanted a greater say in a nomination process which has been tilted toward the South for some time now. The argument was that this would nominate a more moderate candidate who had a wider appeal in the fall.
Well, the NE states appear to have nominated a more moderate nominee, albeit not the one which they intended - Rudy. Given McCain's appeal to independents, I would argue that he places states like NH, PA and maybe others in play.
The question now is whether a nominee which appeals to independent swing voters can still win if he cannot rally the conservative base. For example, could Obama actually start poaching some southern states if white conservatives who voted for Huckabee stay home and African Americans vote in inordinate numbers?
This election is going to be a fascinating expriment on a number of levels.
McCain doesn't represent a majority of the party, but he certainly represents a plurality. Even if the rules were different, he'd still be the nominee. What would change, however, with more proportional allocation of delgates is the status of the other two campaigns. Romney actually outpolled Huckabee something like 30-21 last night, but because Huckabee won more states, he's now moved into second place.
redwood: as a [d]emocrat, my concern is not for majorities, per se, it is for voices and persons appearing in public spaces, like the ballot. I could just as easily say the more the better, even if that means no one wins a majority.
I am with redwood on the importance of ballot access and the need for many voices. But the multiplicity of voices only conflicts with majority rule because of our antiquated and unfair plurality voting rule. The alternative vote (instant runoff voting) would make them compatible.