Balkinization: Upside Down Federalism

Comments:

An interesting point is that some states, such as California, are so dominantly Democratic, that a lot of potential Republicans probably just give up on politics as futile. They weren't even allowed to vote for their own party for Senate on the 8th, for instance!

I'm guessing the electorate might look quite different if we were using some form of Proportional representation, that didn't disenfranchise and discourage voters of one party in areas where the other party is a given to win.

But, the main point? Yes, protections for the minority are also, inherently, protections for the majority. Something the Department of Justice hasn't wanted to admit the last 8 years, as it happens.

# posted by

Brett : 12:55 PM

"An interesting point is that some states, such as California, are so dominantly Democratic,"

The California governor preceding the current one was a long serving Republican. That's better than what you get in many GOP strongholds. Utah has had a GOP governor since *1985*!!!

# posted by

Mista Whiskas : 1:51 PM

"Something the Department of Justice hasn't wanted to admit the last 8 years, as it happens."

For the oxen you want gored. It has repeatedly protected the interests of both the majority and minority. There have as usual been disputes on specifics.

Anyway, the usual strategy is to focus on what you have, temper the losses of what you don't have. So, the 2016 elections will affect strategy some. And, the courts do generally protect minorities including against the states. There are some important cases involving the federal government (including an upcoming immigration case -- see SCOTUSBlog) but a myriad of these cases involve states and localities.

# posted by

Joe : 2:07 PM

But Mike Lee actually had to run against a Democratic opponent, while in California Democrats arranged for only Democrats to be permitted to run for Senator, and many of the House seats.

I don't know of any Republican leaning state where Republicans don't even let Democrats have a candidate in the general election.

# posted by

Brett : 2:11 PM

in California Democrats arranged for only Democrats to be permitted to run for Senator, and many of the House seats.

Huh? "Democrats" did no such thing. The party opposed the initiative which led to that result, and sued to stop it from taking effect.

# posted by

Mark Field : 2:23 PM

Louisiana has a "jungle primary" too and it turned out the top two candidates for the upcoming run-off are different parties. But, that isn't like a rule. If two Republicans won, in the second round there would be only two Republicans. And, both parties were represented in the first round in CA as well.

# posted by

Joe : 2:39 PM

Interesting. I'd known the top two primary had a horrible effect on everyone but Democrats. I hadn't known that the Democratic party had opposed it.

# posted by

Brett : 3:33 PM

"They weren't even allowed to vote for their own party for Senate on the 8th, for instance!"

Brett, I agree with sort of the ultimate point you are getting at (the "popular vote" is a meaningless figure in our system), but this isn't a good argument. California's blanket primary actually is BETTER for Republicans. The reason is under the partisan system, a Republican has zero incentive to go to the polls for the general election because all the contests will be routs. Whereas in the blanket system, you get contested elections, which means that even though it may be two Democrats one may be more conservative and both have at least some incentive to go after conservative votes.

# posted by

Dilan : 4:10 PM

Gerard: There is also the thought that states'-rights protect geographically concentrated minorities (think Quebec) or allow minorities to sort themselves into places that protect rights that are important to them but are not guaranteed nationally.

If defined as limiting the national government to policing interstate and international affairs, granting all other government power to the states, and allowing people and their businesses to travel and trade freely; federalism does indeed allow minorities to govern themselves free from direction from majorities or more likely pluralities in other states.

The current operation of the Electoral College, the Senate, and (maybe) the House of Representatives raises another possibility--federalism exists to protect the majority from the minority. Most people voted for President voted for Hillary Clinton, but she carried only twenty of the fifty states (plus DC) and did not carry the combination of twenty states needed to win.

Clinton has nothing near a majority of the popular vote. Depending on whether you believe the CA's weeks long count of provisional ballots cast by people who were not properly registered for various reasons (like not being American citizens), Clinton earned a razor thin plurality of the popular vote, over half of which was provided by just three states - CA, NY and MA.

If the minority controls the national government, then where are the protections for the majority?

Under the Constitution as written, the people represented by a majority of representatives, senators and the president will almost always constitute a supermajority of the population. It is almost impossible for a minority to rule under this separation of powers; which, of course, was the purpose of this design.

Of course, we do not operate under the Constitution as written. An unelected bureaucracy decrees most law, increasingly in facial violation of laws of Congress, which it selectively enforces, granting dispensations to the politically favored and punishing those who are disfavored. Under this system, election of the president becomes far more important that it should be.

# posted by

Bart DePalma : 4:52 PM

"(like not being American citizens)"

Bart, show us any evidence from non-right wing fever swamp sites that my state is systematically letting non-citizens vote.

I'm really sick and tired of conservatives defaming my state with this false garbage.

# posted by

Dilan : 5:26 PM

"It is almost impossible for a minority to rule under this separation of powers;"

This bit of silliness derives from your wanting to read into the idea of rule that blocking government action can't be 'rule.' This is particularly amusing given your history of whining about how the majority of the country is prevented from rolling back progressivism because the Founders system has so many countermarjoritarian points at which such rollback gets foiled.

# posted by

Mista Whiskas : 6:00 PM

"Clinton has nothing near a majority of the popular vote"

She's nearer any other person that ran...

# posted by

Mista Whiskas : 6:01 PM

Doesn't Louisiana have a system similar to California's?

# posted by

Mista Whiskas : 6:03 PM

It looks like LA has a similar system but skips the first round.

CA has a primary first, then the top two run in November. LA has everyone run in November, and if necessary, there is a run-off later.

CA residents here might know about other differences.

# posted by

Joe : 7:18 PM

Dilan:

Do you really think CA is going to allow an audit of its provisional ballots where all these extra "votes" were being generated?

# posted by

Bart DePalma : 7:25 PM

BD: "Clinton has nothing near a majority of the popular vote"

Mr. W: She's nearer any other person that ran...

That and four bucks will get you a latte at Starbucks.

# posted by

Bart DePalma : 7:26 PM

States' rights protect minorities?

There is a lot that could be said on this topic, of which the mildest is that the empirical evidence in the US tends to run the other way.

# posted by

byomtov : 8:16 PM

I hadn't known that the Democratic party had opposed it.

If you didn't know the history of the system, why did you make up some BS about it?

# posted by

byomtov : 8:37 PM

I don't know Bart. But where is there any evidence that our provisional ballots are cast by significant numbers of noncitizens?

If this were actually true, some conservative think tank could obtain the evidence. The names of provisional voters are public record.

Of course it isn't true.

# posted by

Dilan : 9:36 PM

"California's blanket primary actually is BETTER for Republicans."

No, Dilan, it's not. Think of an election as like distillation. It imperfectly sorts candidates according to their popularity with a given population.

In a normal primary system, Republicans pick a candidate Republicans like, Democrats a candidate Democrats like, and so forth. Then everybody picks from among those choices.

In the blanket primary system, everybody picks two candidates. Since Democrats are a large majority, they are all going to be candidates Democrats like.

Then in the general election, everybody picks between those two. Since Democrats are a large majority, it will be the candidate Democrats like.

In a state where one party predominates, a blanket primary double-distills that party's preferences. They pick the candidates they like, then the same party picks among those candidates.

Now, you double distill alcohol, for example, some water still sneaks through. But not as much as in a single distilation. Same thing here: The regular primary system, you're not going to elect many Republicans in California. With the blanket primary system? Even fewer get elected.

The majority's preferences get applied TWICE, amplifying them.

"Bart. But where is there any evidence that our provisional ballots are cast by significant numbers of noncitizens?"

You never find evidence for things you're not allowed to look for. The present administration is actively blocking access to the necessary databases.

# posted by

Brett : 7:18 AM

Dilan:

CA Democrats passed laws providing driver's licenses to illegal aliens and automatically registering anyone with a driver's license. There is no evidence the CA Sec State's office is doing anything to prevent licenses illegal aliens from voting under this system.

"About 830,000 undocumented applicants have sought the state's driver's licenses since Jan. 2, 2015, the first day they were available following passage of a law, Assembly Bill 60"

http://www.ocregister.com/articles/dmv-698896-licenses-undocumented.html

Then there is CA's extremely easy provisional ballot system which allows you to vote even though you are not registered, then it is up to the local (usually Democrat) elections officials to determine if you are eligible to vote.

# posted by

Bart DePalma : 9:58 AM

The blanket party to my understanding is an attempt to put forth a more moderate general election candidate.

If one party dominates in a state, there is no real need for the party to moderate its candidates. You will have a token opposition in the fall. It might look nice that they are not of the same party, but the net effect is the same. We saw this in the "straight South" for decades. And, if someone wants the right to vote for a person of their choice as a symbolic matter, you still have it the first time.

Republicans have won state-wide offices in California in recent memory, including governors. The senator before Dianne Feinstein was a Republican. A normal primary can have a very liberal candidate win the Democratic primary & a strongly conservative Republican win their primary, the small electorate "distilled" here by those most passionately concerned with such elections (tends to be the strong ideological components).

It's quite possible to conceive of a moderate Republican winning here in a jungle primary system. Or, at least coming in a strong second if the rest of the field is split and there is no one that stands out. If a Republican can win in MA, they can win in CA in this system. Anyway, if the Democrats opposed the system, perhaps they know better than a conservative where their self-interest lies. Perhaps.

# posted by

Joe : 10:49 AM

Dilan:

IBD performed an interesting analysis of the popular vote and found that CA allegedly cast ballots for Clinton at a percentage far in excess of other blue states and, if CA cast ballots at the same rate as other blue states for Clinton, Trump easily wins the national popular vote.

http://www.investors.com/politics/commentary/outside-california-clinton-is-a-big-time-popular-vote-loser/

Something smells on the left coast.

Trump and the GOP Congress needs to require proof of citizenship in order to cast a vote in a federal election and seriously consider doing so in state elections under the Constitution's guarantee of a small "r" republican government to the states.

# posted by

Bart DePalma : 12:03 PM