Balkinization: Jim Hoagland can't quite connect the dots

Comments:

Keep in mind that Jim Hoagland was an active enabler for George W until only quite recently when a little of the light of reality entered his right wing tunnel vision that perhaps mistakes were made. Hoagland, as many other right wing pundits who have recently (but reluctantly) abandoned George W, seems to want to make the transition more difficult for President Elect Obama, perhaps with a view to benefiting the GOP in 2010 and 2012. So Jimbo may provide a modicum of faint praise for Obama from time to time, but his heart really isn't in it. It's sad that Jimbo has almost fully eroded his one-time foreign policy credentials in his long support of George W.

# posted by

Shag from Brookline : 1:55 PM

How is the transition period hardwired in? The only thing the Constitution sets is the inauguration date. If the Congress wanted to, it could set Election Day later. Ergo, shorter transition period.

In any event, I continue to agree with Bart DePalma and Jack Balkin and disagree with Sandy Levinson regarding the length of the transition-- Obama is still picking his people and putting together his agenda, and Bush is consulting with him before major decisions. I don't see what the problem is.

# posted by

Dilan : 2:25 PM

Dilan, I nearly posted similar comments about the length of the transition, but I think it's fair to call the transition time "hard-wired" because the existence of the EC effectively mandates a longer transition than a simple election and vote count would. It's possible to shorten things a bit by statute, but we saw in 2000 that it's essential to leave some space for contested elections in individual states. The extent of the problem depends in substantial part on how short one thinks the transition time should be.

I continue to agree with Prof. Levinson that it should be much shorter than it is now, too short to accomodate and EC.

# posted by

Mark Field : 3:35 PM

Mark:

Wouldn't you still need time for contested national recounts? Indeed, you'd need MORE time if we were recounting the country instead of Florida?

The Electors meeting and voting takes 1 day.

So I would tend to think the Electoral College doesn't slow things up at all.

# posted by

Dilan : 4:00 PM

The reason you'd need less time in a straight popular vote is that the odds are so low of the vote count ever being close enough. When there are 130 million votes cast, even a .17% margin (the closest presidential margin ever) amounts to 221,000 votes. No recount could possibly change that.

Look at MN today -- the margin was 215 after the initial count, out of 2.9 million, .00741% -- 229 times closer than Kennedy/Nixon. While Franken might pull it out, even that's no better than 50/50. A nationwide recount at that level would mean a gap of just 9600 votes or so. Not very likely.

In contrast, the current (and historical) split in the nationwide electoral vote makes it much more likely that a single state would tie up the rest of the country.

# posted by

Mark Field : 4:58 PM

Damn, lost a decimal point in there. "229" should be "22.9".

# posted by

Mark Field : 5:03 PM

Congressional terms expire on January 3. I would think that it would be administratively challenging, at the very least, to have the election after Christmas and nobody would stand for having it right before Christmas. So the latest that you could have it would be the second Tuesday (or whatever) in December, meaning it would fall between the 8th and the 14th. This would leave enough time to certify the election of Senators and Representatives (there always being the possibility that a few races will be undecided), have the electoral college meet sometime in early January, and transmit the results to Congress before January 20. I dont see why the remote possibility of a 2000-type situation should preclude such a schedule.

Of course, I wouldn't want to be the politician explaining to people why we should hold the election in the middle of the holiday season.

# posted by

mls : 5:05 PM

Mark:

Wasn't the Bush/Gore popular vote in 2000 close enough to require a recount? Ford/Carter in 1976? Nixon/Humphrey in 1968? Nixon/Kennedy in 1960?

And even if your answer is no to all of those, what would you do if you DID need to do a national recount, and you have no time?

# posted by

Dilan : 6:17 PM

The answer in all cases is no. Recounts change very few vote results (vide Franken/Coleman or even Bush/Gore). In none of the cases you mentioned was there even a remote chance that a nationwide recount would have changed the result. The closest was 1960, where the margin was more than 112,000 votes. Recounts can't overcome that large a gap.

I agree that there is a potential problem in the event of a national recount (though this is mostly a hypothetical objection IMO), but that depends on (a) the transition time; and (b) the method of voting.

As for the former, even I don't recommend the 10 days or so that seems to be the rough norm among parliamentary democracies. I'm thinking more like 30 days. That would leave the election at its current date and the inauguration in early December.

A good voting system makes this timeline very plausible. Scantrons with a paper trail can be counted very quickly, and recounted pretty quickly as well (MN is taking more time than necessary and was delayed getting started).

In fairness, I'd note that a nationwide standard of voting would speed up EC counts also and thus leave open the potential for that to remain in place. I'd favor eliminating that on other grounds.

# posted by

Mark Field : 7:19 PM

I don't think the reason why recounts take so long is the method of voting. Rather, it is the stakes at issue. Presidential candidates and parties will always hire phalanxes of lawyers and do everything they can to examine every possible ballot.

With your preferred optical scan ballots, there will be challenges to every stray mark and every not-quite-filled-in bubble.

Further, 112,000 votes is clearly a recountable margin in an electorate of 120 million. It's only .01 percent of the electorate. It may seem like a lot, but that's only because we've never had a national recount.

# posted by

Dilan : 10:51 AM

112,000 votes was the margin in an electorate which was half the size. With the turnout this year, the comparable margin would be 221,000. That's at least 10 times the margin which a nationwide recount might change. I don't know of any state today which would permit a recount with a margin as large as .17%; most are in the neighborhood of .05% or less.

Yes, the stakes would be high in recount for president. Yes, both parties would behave badly in such a case. But these factors don't prove anything because they're common to ALL vote systems. A nationwide popular vote would actually reduce the chances of a close election which would give rise to such problems.

# posted by

Mark Field : 11:09 AM

It would reduce the chances of a recount somewhat, but it would increase the mess if one were to occur. And you want to shorten the transition period.

If we enacted all your desired reforms, we'd put the country on an inexorable course towards a train wreck.

# posted by

Dilan : 1:54 PM

At a DC Bar panel on the transition process yesterday, a questioner brought up the idea of shortening the lame-duck period by constitutional amendment, which apparently was proposed in a Legal Times op-ed last month. (Had someone else not raised the issue, I was going to ask it myself, with specific reference to Professor Levinson).

None of the panelists seemed to think that this was a particularly good idea. One point that each of them made (as does Hoagland in his op-ed), both in response to this question and throughout the panel, was that the formal transition period is only part of the real transition, which includes both the period after inauguration but before the cabinet official for each department is confirmed, and the period thereafter before the key lower level officials are confirmed. Shortening the formal transition would likely lengthen these informal transitions, which are difficult not only for the new president but for the agencies that have to operate without political leadership.

One idea that was alluded to briefly would be to speed up the confirmation process for cabinet level officials so that they can be confirmed immediately after inauguration. Indeed, if the outgoing president were willing to nominate these officials before the actual inauguration, there is no reason why they could not be confirmed and in place even before the inauguration.

# posted by

mls : 7:33 AM

It would reduce the chances of a recount somewhat

Actually, it would decrease the chance of a recount by quite a bit. There's not a single presidential election ever which would have required a nationwide recount of the popular vote. In contrast, we've had 3 serious constitutional crises as a result of the EC (1824, 1876, 2000), and another (1960) which could well have turned into one.

but it would increase the mess if one were to occur.

No more so than any other plan to eliminate the EC.

If we enacted all your desired reforms, we'd put the country on an inexorable course towards a train wreck.

This is hyperbole. I've no doubt people said the same when the transition period was changed from March 4 to January 20. If you had some evidence from another country, that might be persuasive.

The strange thing is, that while you're simply inventing the potential for harm, we have actual evidence of harm caused by an overly long period. We now have 2 historical examples (Lincoln and FDR) of a "real mess" caused by the delayed transition (I'm ignoring Bush for the moment). There's no such thing as a perfect system, so it's always a matter of trade-offs. Those two examples mean you need to come up with something more than speculation.

# posted by

Mark Field : 10:42 AM

Mark, the south would have seceded no matter what the length of the transition period in 1860. And once they seceded, war was inevitable.

As for 1932, there's no evidence that FDR could have really done anything to stop the depression by then anyway. Certainly FDR's people were pissed off at Hoover, but that's a lot different from actually harming things.

On the other hand, you don't know how many bad presidencies we have AVOIDED because the President has had enough time to vet and select a good team and get up to speed.

# posted by

Dilan : 2:47 PM

Dilan, I agree with you that the South would have seceeded. The point is that Buchanan made things much worse by failing to prepare for that. Just for example, he allowed his Secretary of War to loot Union arsenals and send the weapons south. That's pretty significant.

As for FDR, his policies seemed to have had a pretty quick effect alleviating the Depression. Unemployment dropped and GDP rose after he took office. I know my grandparents would have been very happy to have those things happen even a few months earlier -- living in a converted corn bin apparently wasn't quite as romantic as it sounds.

On the other hand, you don't know how many bad presidencies we have AVOIDED because the President has had enough time to vet and select a good team and get up to speed.

I'm sure the same was said about the move from March 4 to January 20.

Again, though, this is speculation. If there were evidence of this, we'd surely find it in the states and in other nations. Just for example, CA has the governor take office on the first Monday in January (roughly 2 weeks less transition time). Do you honestly believe that this time difference is critical?

# posted by

Mark Field : 3:49 PM

It isn't that any particular time difference is critical. It's just that the President-elect needs enough time to staff and get briefed and prepared. There's nothing unreasonable about a period of two months, despite what you are claiming. And for all we know, we would have even better presidents if we had kept the March date. You can't prove otherwise.

Buchanan's decisions may not have been optimal, but since the Civil War was going to happen anyway, they look pretty minor.

And with all respect to your grandparents, there is no economist who contends that FDR's policies had an IMMEDIATE impact other than the bank holiday. When economists say that the New Deal stimulated the economy, they are talking about year-to-year figures, not week-to-week.

# posted by

Dilan : 1:41 PM

It isn't that any particular time difference is critical. It's just that the President-elect needs enough time to staff and get briefed and prepared.

Agreed. What we're discussing is the relative value of the trade-offs.

There's nothing unreasonable about a period of two months, despite what you are claiming.

No, but then again there's nothing unreasonable about 1 month either. It's a judgment call either way, informed by actual experience (both historical and from states and foreign countries).

And for all we know, we would have even better presidents if we had kept the March date. You can't prove otherwise.

Perhaps they'd be better yet if we extended the transition to 2 years. Nobody can prove otherwise.

Seriously, we had two significant instances in which the March date proved to be a real flaw. Obviously people thought so -- they took the effort to amend the Constitution to get rid of it. That speaks pretty strongly.

Buchanan's decisions may not have been optimal, but since the Civil War was going to happen anyway, they look pretty minor.

I don't think you'd find many historians who agreed with this. JMHO, but I'd use a different phrase than "not optimal" to describe the process of taking one's own weapons and giving them to one's enemy.

# posted by

Mark Field : 3:18 PM

tell me which side i'm on
approaching constant failure
who's friend or foe?
between love and hate
which path to follow?
how can i keep balance in this race?
come faith i'm dying.. slowly

# posted by

AntoL-Nyo : 12:09 PM