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Monday, April 06, 2020

Election "fetishism"

"Elections are the fossil fuel of politics."  This incendiary sentence comes form a fascinating book, Against Elections, by David van Reybrouck.  What he is attacking is what might be termed a certain kind of "fetishism" that views our standard reliance on certain forms of election as the one true way of selecting leaders in a "representative democracy.'  To be sure, Reybrouck can be read in part as a critic of "representative democracy" in favor of more direct democracy, as seen in America in such different states as Maine or California (with lots of others as well).  But I think the real importance of his argument, and what makes it worth discussing in a far greater context than the debate about direct democracy versus representatives democracy is that he accurately suggests that our present system of elections is not even the best way of producing truly "representative" leaders.  For starters, they are snapshots taken on a given day of the constellation of pubic opinion of those who show up and vote for a restricted list of candidates.  We could obviously discuss at length the degree to which the restricted list generates truly "representative" candidates, given the role played by money or well-located interest groups.  That's the subject for other postings.  Rather, let's assume for the moment that the candidate-selection process is acceptable, and we're concerned only with how we should structure the choice by the citizenry of who should occupy the offices in question.

I read van Reybrouck to suggest, a la Jim Fishkin, whose work both he and I deeply admire and believe should have far more impact than it has had up to now, that the actual choice be determined by a process of genuine deliberation among a random sample of the American electorate, chosen in accordance with the most advanced methods by which Gallup and other respected pollsters do their own polling.  The actual voters would be less likely to meet the objections raised by Ilya Somin and others about the palpable "ignorance" of many voters.  If, for example, they that they were part of a carefully chosen (albeit random) group of, say, 2000 Americans, to pick the next president, and if in addition there were "hearings" at which the candidates would speak and be subject to careful cross-examination concerning their views, there is every reason to trust that the choice would be well within the "margins of error" that we in fact accept, albeit without giving any genuine thought to it in our "ordinary" election process.

Such an approach to elections would immediately obviate the kind of all-out partisan warfare now occurring in Wisconsin and, many people fear, that is on the horizon and Donald Trump and his GOP minions will do almost literally whatever they think it will take to hang on to power in November.  It would also render close to irrelevant the role of big money at least following the nomination process.  So what's the problem?

The quick and dirty answer is that this exposes the chasm between "thinking like a social scientist" and "thinking like a layperson."  I.e, I am assuming that any and all trained social scientists would agree that a well-chosen representative sample will produce more "representative" outcomes, whether one is testing the distribution of public opinion or, as in the hypothetical case the selection of a president, than does the baroque process by which we conduct elections.  The laity, on the other hand, I suspect would be appalled at this suggestion because we have built up over the years a true mystique about elections per se.  Instead of a truly serious discussion about what a "republican form of government" requires of all of us, we instead have sacralized the particular process as a form of social communion.  WE all believe that we're better citizens because we get up early and stand in long lines or stand in long lines at the end of a days work, perhaps with children in tow who are told that this is the very essence of "American democracy."  That is an epic piece of false consciousness, with extraordinarily important consequences for the actual reality of what we ideologically label "American democracy."

We are told that we ought to grant legitimacy to the winners of any and all elections.  But why, exactly?  If and only if we truly have a reason to believe that the election process is truly fair in sufficient respect.  There is good reason to have more and more doubt as to whether that is true in the US today, in part thanks to obtuse decisions by the US Supreme Court.

There is a perhaps paradoxical connection between van Reybrouck's (and Fishkin's) arguments and some of those that originally justified the electoral college.  (There are no good arguments that justify the current operation of the electoral college.)   That is, it was thought desirable to place selection in the hands of a group of people who would presumably exercise better and more informed choices than the people at large.  The difference is that this defense of the electoral college is elitist through and through.  There is nothing elitist in Fishkin's and van Reybroucks arguments, however.  A random sample, a "national citizen jury" in effect, would be full of the hoi polloi.  There would obviously be some elites within the overall sample, but they would play no special role.  It would truly be a one-person/one-vote system where the voting pool would be, of course, a minuscule percentage of the national population.  For me that is no problem.  I suspect that many of you would find it a fatal defect.  But the question is why.

72 comments:

  1. But, if they are knowledgeable, well-informed individuals, how can they truly represent the American public?

    OK, that's snarky -- but the problem I would have with the methodology proposed is that it places too much power in too small a group of mandarins -- the people who would decide on how the select group would be chosen, by which I mean not the people choosing the methodology, but the people who would actually carry out the operation.

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  2. Good question. Asked frequently, in many forms.Many answers or arguments, but one right now:

    There is no system or regime, where the the voters or people voting, can really influence every decision, every policy, or, each action taken by the government. The best thing, is referendum. Yet, the latter, can be put, only for certain major issues, nothing more than that.

    So, what is the advantage actually ? We must shift then, to sentiment. Typically, we ignore issues have to do with sentiment, and rather observe: efficiency, rationality, and morality. Yet, sentiment has huge impact:

    People voting, feels, that they have their own say here. They are not little fishes, eaten constantly by great sharks. They can shape and re-shape things all around. They can " punish " representatives, deviating from desirable conduct, or " reward " when the day comes, the one who acted faithfully.

    This is not at all, negligible thing.

    Thanks

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  3. WE all believe that we're better citizens because we get up early and stand in long lines or stand in long lines at the end of a days work, perhaps with children in tow who are told that this is the very essence of "American democracy."

    I never had to get up early or stand in a long line to vote in my life. To the degree this is a necessity in certain areas, it is a bit of a travesty.

    Voting is the "very essence" of American democracy but that is snapshot. I had a couple comments in the last SL thread to point out the various ways the average person [and only some are limited to citizens) can and should take part in democracy. Voting a few times a year is about as satisfying there as going to mass for Christmas and Easter is for being a good Catholic.

    If and only if we truly have a reason to believe that the election process is truly fair in sufficient respect.

    We provide a certain amount of "legitimacy" to degree some borderline level of fairness is provided. What is "truly fair"? Would ANY election in this country warrant respect if that is taken to its logical conclusion? So, I think realistically, legitimacy comes on a continuum. Plus, just because it is on some narrow level legitimate doesn't mean the winner has some unlimited "mandate" or something.

    Take a winner who blatantly lied and held back key info. Plus, the person is an incompetent. I speak purely thereoticlaly. Seriously. The election process was fair as far as it goes. And, it was a state election so the problem of the Electoral College didn't pop up. Not trusting the person more so than others isn't exactly bad policy.

    sample

    My problem here is that I think each citizen has a specific role in our system of government appropriately so and just selecting some sample would alter the dynamic in troubling ways. Finding some "sample" would be difficult. It surely is rather imperfect as to juries, which to me is not the same thing as choosing people representing us. Anyway, it would be not merely be some change in our federal constitution, but the laws of every single state in the union as well. It is the rankest thought experiment.

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  4. Mind you, fetishes are okay. To each their own.

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  5. I'm pretty skeptical of the random sample proposal. Even if it worked -- I don't think it will as I explain below -- it would lose us the buy-in that we get from citizens knowing that they got to participate (assuming they think the result accurately reflected the vote). The stability of any polity depends on acquiescence to the outcome. I don't see why anyone would acquiesce to the proposal.

    Moreover, I seriously doubt it would work. Almost half the country lives in the Fox "News" bubble. They believe conspiracy theories and preposterous facts. Attempting to inform them won't change that. In fact, social science pretty consistently shows that demonstrating the falseness of a belief actually causes people to reaffirm it. In my view, the random sample will be just that, a sample of the existing electorate. It won't be more educated, it won't be more informed, it'll just be smaller. That's not an improvement.

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  6. Sandy:

    A random sample of Americans is more likely to be ignorant than our current system where only the motivated turn out.

    Given a random sample of Americans will include a large share of the politically ignorant and unmotivated, how do you propose to compel them to sit through or pay attention to candidate hearings? Who would be doing the "careful cross examination?"

    Presumably, the parties are still nominating candidates, so I am not seeing how the process will be less partisan.

    Candidate and party supporters will still seek to communicate with your 2,000 select. This will either require far less or potentially far more spending on political speech depending on whether your select are anonymous.

    If their names are public, partisans will deluge the relatively minuscule number of select with every form and avenue of political speech. It won't cost much money, but the harassment factor would be huge. Can the select quit to avoid the never-ending attention?

    If they are anonymous and no one manages to discover their names, then partisans will have to substantially expand the current reach of political speech and spending to reach the select. Currently, political operatives know who are most likely to vote and concentrate their communications on that group's needs and wants. To reach a truly random sample, political speech will now have to target the politically ignorant and unmotivated and raise the volume of the speech to reach those who traditionally ignore politics.

    Finally, how do you convince the "layity," the 99.9% of the current voters you are disenfranchising, that the select are randomly chosen and actually represent their interests? I know for a fact that the politically ignorant and unmotivated you intend to make roughly 40% of the new electorate of the select are extremely unlikely to represent my interests.

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  7. A previous work along these lines: "Franchise" by Isaac Asimov, in the collection "Earth is Room Enough", 1957.

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  8. I think the worst flaw in a system like this is the potential for fraud. Right now voter fraud consists mostly of morons like Sniffles trying to show how easy voter fraud is, and because they're morons they get caught. A system with only a few thousand voters dramatically increases the chances that someone can bribe enough of them to buy an election.

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  9. I wonder if this isn't a bit of a sly joke by Sandy, re: our current electoral system at the federal level already 'really' consists in a tinier, less representative and less justifiable (by social scientific standards) sample which chooses our President: the electoral college.

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  10. Another thing that comes to me in reading Sandy's OP here is that it suggests the point to me (I don't know if it's intended or not) that one problem with old Constitutions (yes, yes, we can amend ours, but a big part of Sandy's message for a long time is have fetishized the Founders and their ideas) is that they do not utilize all the tools of social science that have been developed in the couple hundred years plus since the Founding, the same tools that other institutions in a modern, industrial economy/polity (businesses, political organizations, etc.,) use regularly with success.

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  12. Sandy:

    Speaking of voter fraud. how do you propose to select the random 2,000 voters?

    The census would be the logical source, but about 7% of that pool would be ineligible non-citizens. Verifying eligibility to vote before the selection would be nearly impossible because the Dems have so far blocked a citizenship census question and a significant number of illegal aliens would likely lie in response to such a question.

    What about eligible, but mentally incompetent voters? You clearly expect the select to intelligently participate in candidate hearings.

    You could have a random selection from the census with alternates, allowing the post-selection identification and removal of the ineligible and incompetent.

    The politics of adopting this system are interesting.Which party would be most benefited by the the addition of the politically ignorant and unmotivated? Both Obama and Trump used cults of personality to convince significant numbers of these to cast ballots for them. Given the ineligible and incompetent are party base voters in places like CA, I suspect the Democrats would appose their post hoc removal as suggested above.

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  13. I can't see this working. There are many problems with it.

    First, polling isn't pure math from end to end, it has a large "black arts" component, which is one of the reasons polls have what is termed a "house effect". There are a lot more 'knobs and dials' that can be manipulated to change the results than you seem to recognize. Knobs and dials no human pollster could resist tweaking. Normalizing the sample, for instance. The sample basically always fails to be representative of the population on some metric of concern, but as soon as you start manipulating the sample, it ceases to be genuinely random.

    Second, you're not proposing a normal random sample poll, which is the purest, most objectively grounded form of polling. You're proposing a panel. A specific group of people presumably random to begin with, who are then extensively propagandized before questioning them for their opinion. Panels are well known to not return representative results, because the interventions involved contaminate the sample, rendering it non-representative.

    Yes, you don't your "hearings" as propagandizing, but that's precisely what they'd be. Who would chose the participants and contents? Why would any group excluded regard the result as legitimate? And some group WOULD be excluded, inevitably, and you'd doubtless have some justification for doing so, which a large part of the electorate would (correctly!) view as BS.

    Basically what you're proposing is to take a manageable number of voters, cut them off from the unregulated free speech of the campaign, and then curate what they hear. Why? I suppose because you can't get away with curating what the general electorate hear. But it's only an improvement from the perspective of the side that gets to do the curation.

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  14. "I wonder if this isn't a bit of a sly joke by Sandy, re: our current electoral system at the federal level already 'really' consists in a tinier, less representative and less justifiable (by social scientific standards) sample which chooses our President: the electoral college."

    Heh. Now I'm thinking this may very well be the case.

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  15. Brett:

    Selecting voters by poll would be a complete non-starter. Putting aside the games Democrat media pollsters play with their respondent populations to oversample Democrats, polls have an enormous non-compliance rate, which disproportionally includes conservative voters. See the Shy Tory effect. I am Exhibit 1.

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  16. Bart:

    If this proposal were to be legally implemented, which would require a constitutional amendment, (Spoiler: It's not going to happen.) there would obviously be compulsory process involved, similar to jury selection. So, while I think the whole proposal is wildly unrealistic, I don't see THAT particular concern as a genuine issue.

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  17. Brett:

    Voting as jury service?

    I can hardly wait for the myriad of excuses to get out of voting service.

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  18. "We are told that we ought to grant legitimacy to the winners of any and all elections. But why, exactly?"

    You want a cynical answer?

    Elections are (civil) war games. Instead of holding a real civil war to decide who rules over whom, we hold war games at regular intervals, and let the winner of the game do the ruling, without the bloodshed.

    Campaigns and elections are mock civil wars. You've got numbers, resources, strategy, intelligence gathering, motivation... Everything from a war except the killing.

    This is why countries with functioning democracies, where the elections aren't rigged, don't have civil wars: Because the winning side has already demonstrated they'd win that civil war.

    Elections don't really provide legitimacy, fairness, good decisions, or any of that nonsense. They provide a way to cut to the chase without a bunch of people dying.

    But, that's pretty valuable, isn't it?

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  19. "War is not merely a political act, but also a real political instrument, a continuation of political commerce, a carrying out of the same by other means."

    General Carl von Clausewitz, On War

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  20. As to how serious Sandy Levinson is, well, didn't he support some random sample being chosen to create a new Constitution? Sorta think he is being serious.

    Either that, or like GM, he wants to find something where people can agree that he is wrong not along the same lines.

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  21. "Given the ineligible and incompetent are party base voters in places like CA, I suspect the Democrats would appose their post hoc removal as suggested above."

    This is, of course, like most things Bircher Bart says, ridiculous krazy kooky konspiracy. This is how Bircher Bart rolls. He says inane, indefensible krazy kooky konspiracies and then runs tail tucked twixt his legs from them when the absurdity of them is pointed out, just to try to fling the next silliness in the hopes one sticks. He lacks integrity as he will not defend his own words. In that vein, a chance for Bircher Bart to prove that he has some scintilla of integrity:

    You recently confidently argued that the prosecutions of Michael Cohen and Lev Parnas were politically motivated prosecutions designed to stack charges against these Trump associates to force them to tell embarrassing information about the President. The prosecutor overseeing these actions is, in fact a Trump appointee, a Trump donor, and a volunteer on the Trump transition team. We have to know we are not wasting our time with dishonest and un-serious men. Please defend this argument or retract it and admit that you are prone to making such conspiracy theories before anyone responds to the substance of what you are saying now.

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  22. "a significant number of illegal aliens would likely lie in response to such a question. "

    This is more krazy kooky konspiracy theory, offered up confidently as fact with no evidence to back it up. In other words, typical Bircher. It's what he does, for example when he confidently and with no evidence offered up the theory that the prosecutions of Michael Cohen and Lev Parnas were politically motivated to push them to 'spill' harmful information on Trump. After a second of looking on the internet it was determined that the theory confidently asserted by Bircher Bart and Brett was patently laughable: the prosecutor in question was a Trump donor, appointee and campaign volunteer.

    Now, it's one thing for a person to make such a laughable error. But Bircher Bart and Brett do it *consistently.* And when they do it, they *never* man up and own up to the mistake and engage in reflection about why they made it. They just appear at another thread or switch topics in thread and act like the goofy gaffe never occurred.

    Look, these two men are either incredibly incompetent (why else make such gaffes and then, what, forget them over and over and over?) or they *are not serious, honest discussants.* Because what they are doing is not what serious and honest discussants do.

    Let readers take note that this it their consistent pattern, one they can't and won't even try to defend. They're either deranged partisans or purposeful propagandists.

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  25. To the merits, as opposed to correcting partisan trolls, whatever the faults of Sandy's proposal (and like I said, I think it's a bit of a joke on his part), selecting the sample would not be one of them. Apart from Birchers feverish krazy kooky konspiracy theories and ignorant musings (Bircher Brett knows from bumpkiss about polling and sampling would be my confident bet), this kind of thing is done all the time by organizations whose success or failure depends on doing this right. Political campaigns, businesses, non-profits, etc., are out there using social science to locate and poll samples key to what they are doing, and the successful ones are...doing it successfully! This is just 'well, what's all those confusing numbers and fancy talk, shucks I don't trust it all' anti-intellectualism of the GOP base in further evidence here.

    As to the krazy kooky konspiracy theory re: 'illegals' participating, this can be shot down easily as the claims of voter fraud in our current system would be. Common sense would tell you that no undocumented alien wants to draw attention to themselves by doing something like voting, especially when there is virtually *no benefit* in a secret ballot election. Getting confused and checking a box to register to vote at the DMV, that's one thing, and I imagine that happens with some frequency. But it stretches the credulity of the non-krazy kooky konspiratorial to think any rational alien would weigh the non-existent benefits over the heavy likely costs of committing voter fraud in either our actual or Sandy's hypothetical system.

    And, again, without explaining the joke, however lacking in exact representation this hypothetical sample would be, *it would be leaps and bounds more representative than our current EC system.*

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  26. Bircher Brett's comment re: civil war is equal parts sloppy reasoning and extremist cynicism, in other words typical Bircher Brett.

    Sloppy reasoning: wars have 'numbers, resources, strategy, intelligence gathering, motivation' and elections have the same, so they're the same! (By this logic marketing, sports, religious revivals, are all the same as wars and elections).

    Extremist cynicism: Of course Bircher Brett can see no distinction worth noting behind the giving of the consent of the governed via majority rules and an establishment of dominance like Fury Road. When his family or friends talk and vote about where to eat tonight surely he will hold his face in his hands and scream 'oh the humanity!'

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  27. "Of course Bircher Brett can see no distinction worth noting behind the giving of the consent of the governed via majority rules and an establishment of dominance like Fury Road."

    Consent of the governed is a legal fiction, and like most legal fictions, is more of a legal lie. The winners consent, (Why wouldn't they?) the losers acquiesce knowing that they'll be made to suffer if they don't.

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  28. The Electoral College was not actually the selection of 538 independent actors in practice & never really was. The possibility of "faithless electors" is subject of two Supreme Court cases that were postponed. People put out original understanding or other arguments on how leaving open independent electors is a good idea or at least constitutionally protected, both a dubious matter in principle and by practice.

    The proposal, whatever the seriousness, is to actually rely on a small sample to vote. And, campaigns use polls to influence its methods and messaging, but in the end, the voters still decide. Usage of that sort of thing to some extent can be useful, but to take it to the fullest extent is a bad idea.

    Different comments, in their own ways, provided examples why. Ultimately, bottom line for me, voting as well as other things shouldn't be something for some small other [which as suggested by more than one comment will likely be picked in some arbitrary fashion] that maybe (maybe) you would take part in once in a blue moon. "Voting" here would bring with it all of the other things, such as studying the candidates, engaging with them in various ways & so forth as I discussed in a past thread.

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  29. Mr. W. raised the issue of COVID-19 rules and things like churches in another thread.

    Sandy Levinson with Eric Segall discussed the issue:

    http://www.dorfonlaw.org/2020/04/forced-closing-of-houses-of-worship.html

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  30. For any group there are going to be times where a decision must be made. Even children get the basic logic that if everyone counts equally then everyone should get an equal say and the decision with the most says behind it should be the one for the group. That's not 'civil war' by another name it's the logic of democracy.

    Bircher Brett is the kind of person whom, when at a wedding overhearing 'it's so nice to see them get married, they seem to love each other so much, taking comfort and pleasure in each other's company and wanting to work together as a team to make their shared life better' scoffs 'hrumph, more like they've got a biological imperative to promote the maximum number of healthy offspring who can pass down their genes and a naturally selected per-disposition to favor the qualities in each other indicating health, fertility and other factors likely to maximize this result' (well, that might be Bircher Brett without all the fancy words and with some social darwinian hyperbole tossed in).

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  31. Thanks joe, I'll check that out.

    Like I said before, there's lots of interesting potential constitutional issues triggered by our 'interesting times.' In addition to the first amendment cases regarding church and other religious closures there are the ones I mentioned about states classifying some enterprises which involve rights (such as abortion clinics, gun stores, etc.,) as non-necessary and therefore closed.

    And, like I said before, the quarantine power, a power long recognized in Anglo-American common law, is one of many nails in the coffin of the silly idea of some 'classic liberal' mythological past where governments recognized un-abridgeable fundamental rights. For a long time before 'progressives' in any sense existed the quarantine power has been recognized as arbitrating nearly every fundamental right in the name of combating serious harm. The only distinction between these mythological 'classical liberal' and what might be called more modern, progressive polities is what they consider and not consider harms that can trigger governmental intrusion/restriction.

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  32. "Even children get the basic logic that if everyone counts equally then everyone should get an equal say and the decision with the most says behind it should be the one for the group. That's not 'civil war' by another name it's the logic of democracy."

    Yes, that's the surface logic of democracy, and exposes the fundamental mental block people who support the expansion of democracy suffer from: Why assume the decision has to be the same for everybody in the group?

    Sure, IF everybody has to go with the same thing, it makes sense to have majority rule. But, for the vast majority of topics, everybody doesn't have to go with the same thing. We don't have to vote on what flavor of ice cream everybody will eat, and everybody eats vanilla and darned well likes it. We can go to Baskin Robins and each person makes their own choice from 31 flavors.

    People who think of democracy as a good thing, in and of itself, tend not to get this: If you're voting, you've already decided that somebody isn't going to get what they want; Was it really necessary that they not get what they want? Was it really necessary that the whole group do the same thing?

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  33. BD: "a significant number of illegal aliens would likely lie in response to such a question. "

    Mr. W: This is more krazy kooky konspiracy theory, offered up confidently as fact with no evidence to back it up.


    Because illegal aliens would never lie to the government? Just like they never lie to the SSA with stolen Social Security numbers?

    A couple years back, the anti-illegal immigration group, Immigration Reform Law Institute, used FOIA requests to force the Obama administration to admit, between 2012 to 2016, there were “39 million instances where names and Social Security numbers on W-2 tax forms did not match the corresponding Social Security records.”

    Of course, many of these discrepancies can be due to innocent name changes, especially after marriage. However, before this period, pro-illegal immigration groups brought suit against the government for sending employers "no match letters" notifying them when the name of their employee did not match the actual owner of the SS number. During the 2012 election year, Obama stopped the letters.

    But, of course, Democrats do not think of illegal aliens as undocumented Democrat voters and pro illegal immigration groups were not bringing suit on behalf of the millions of illegals committing Sociai Security fraud. Along these lines, I previously provided you with several links to evidence conterning illegal alien voting and the CA vote harvesting scams, including gathering votes from nursing homes.

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  34. "Why assume the decision has to be the same for everybody in the group?"

    Because some things are. To use the example, it's true that there are 31 choices at Baskins Robbins, but if your family is deciding whether to get ice cream or smoothies, then unless you're going to break away from the family outing then you have to face the possibility you and they are going to to Tropical Smoothie where, if ice cream is what you wanted, you're going to not get what you wanted.

    This is what voting is for: the decisions that have to be made at the group level. And every group will have those decision. And the logic of democracy demonstrates that the best, most fair way to make those decisions is majority vote.

    That's a million miles from a civil war. That's just the talk of a person who, like my eight year old, just can't stand the idea what they vote for won't win all the time. She talks in the same hyperbolic way about how the family decisions are 'unfair' and (she even uses this word) 'tyranny.'

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  35. "Just like they never lie to the SSA with stolen Social Security numbers?"

    This person (I won't say 'man,' my traditional self can't use that term for someone who hides like a scaredy cat at his own absurd claims) is actually serious. A serious dolt.

    Don't ask this person for an apple, he's likely to give you a typewriter. His powers of distinction are a bit dull.

    "Common sense would tell you that no undocumented alien wants to draw attention to themselves by doing something like voting, especially when there is virtually *no benefit* in a secret ballot election."

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  36. Bircher Bart is peddling his krazy kooky konspiracy theory of the day. He's prone to that. What kind of wacky stuff does a krazy konspiracy kook think up? Well he (and Bircher Brett btw) recently confidently and with no evidence offered up the theory that the prosecutions of Michael Cohen and Lev Parnas were politically motivated to push them to 'spill' harmful information on Trump. After a second of looking on the internet it was determined that the theory confidently asserted by Bircher Bart and Brett was patently laughable: the prosecutor in question was a Trump donor, appointee and campaign volunteer.

    Now, it's one thing for a person to make such a laughable error. But Bircher Bart and Brett do it *consistently.* And when they do it, they *never* man up and own up to the mistake and engage in reflection about why they made it. They just appear at another thread or switch topics in thread and act like the goofy gaffe never occurred.

    Look, these two men are either incredibly incompetent (why else make such gaffes and then, what, forget them over and over and over?) or they *are not serious, honest discussants.* Because what they are doing is not what serious and honest discussants do.

    Let readers take note that this it their consistent pattern, one they can't and won't even try to defend. They're either deranged partisans or purposeful propagandists.

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  37. Mr. W: Bircher Brett's comment re: civil war is equal parts sloppy reasoning and extremist cynicism

    Read some history.

    For example, before the British started electing Parliaments, who took over nearly all powers from the monarch, civil wars between competitors for the throne were very common.

    Yes, elections for representative governments are an effective alternative to political wars.

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  38. Consent of the governed is a legal fiction, and like most legal fictions, is more of a legal lie. The winners consent, (Why wouldn't they?) the losers acquiesce knowing that they'll be made to suffer if they don't.

    The law is often treated with disdain (unless it's useful) but the basic concepts tend not to only apply to the law.

    A "legal fiction" is generally something accepted as legally true for the purposes of the question. But, this isn't unique to the law. A call in a baseball game might be deemed final. A "hit" is in the scoreboard. Instant replay suggests the trouble with finding what "actually happened." So, certain things are granted. To call such things "lies" is a rather exaggerated use of a weighted word.

    The "consent" here cannot be absolute in all respects since that is simply impossible. But, there is quite accurately, no lie, a form of consent. The people agree to an overall constitution & then vote for those who govern under them, at times directly voting for measures or serving as jurors.

    They have some actual choice, unlike slaves, to live a certain place. Surely, freedom of movement is not absolute, so libertarian "voting with your feet" arguments are silly at some point. But, it's a real thing. People live here and by doing so agree to the rules in place. This brings obligations as well as benefits (such as not dying if they don't have money for basic necessities).

    The "losers" of a particular election aren't total losers. They still get a range of things for living in such and such a place as compared to let's say Iran. The "winners" don't have carte blanche either.

    And, since we live in reality, this all is imperfect and various red flags should be addressed to deal with inequities and injustices as far as possible. At some point, "consent" is not present. If women cannot vote, e.g. But, that isn't quite what is being asserted or argued here.


    ===

    As to a later comment, yes, we vote only over certain things. We leave a range of things to individual choice. The average supporter of democracy realizes this. In fact, many on "the Left" would think things like choosing ice cream flavors already out there is a right to privacy. The stupid "brocolli horrible" relied on that when eating brocolli wasn't the point of insurance (with a tax opt-out).

    We don't have pure majority rule over everything. In fact, we don't have it even over public things. I'm not sure what people aren't getting exactly.

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  39. Btw-re Bircher Brett's comment. There very well may be things that shouldn't be voted on (meaning that government shouldn't get involve on directly*) because it will mean that some people have a chance of having to live with not getting what they want about how this will be dealt with (or not dealt with). But these are really *very few and far between.* People like Bircher Brett elide this reality by playing a little game like this: they say, well, why do we have to have a law saying everyone must drive this speed limit, or that no one may discriminate based on X? Why not have each person decide how fast to drive and only punish those that cause accidents, or let each business decide whether to discriminate or not. What they elide is that 1. we often institute general rules because they promote generally better outcomes and 2. when people are voting on, say, non-discrimination on characteristic X laws they are really voting on 'will we have *marketplaces* where people can be denied service based on X, or will we not?' This is because many people, reasonably, think the harm is in *allowing this choice to happen at all.* For someone from an unexamined privileged position, like Bircher Brett, it's easy to entertain a hypothetical where if one business denies him service he can just walk to the next one which may not. But we have an empirical history whereby those members of groups who actually faced that kind of thing can tell you how harmful it was to them, both materially and in terms of their general dignity.

    Note too that *not passing such a law* is a choice that some will 'have to live with.' If we pass a non-discrimination law then those who wish to discriminate will not get their way as a result, but if we don't pass such a law it's not that everybody lives hunky-dory in a world of abundant choices-in fact we've seen historically that what it means for many people is they face what MLK spoke of in his I have a Dream speech, "heavy with the fatigue of travel, cannot gain lodging in the motels..."

    So, we're either going to have a government that does or *does not* do something, and *either way* someone's going to be benefit and be happy or negatively affected and unhappy, the question is: how will we make that choice? Treating all says equally and letting the majority of says have their way (while making it so the losing side is always free to persuade the winners to change later) is the logic of democracy, the fairest way, and a million miles from 'a civil war.' It was really just the typical kind of facetious hyperbole to be expected from the source.

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  42. Mr. W:

    Anger management: 10 tips to tame your temper

    Keeping your temper in check can be challenging. Use simple anger management tips — from taking a timeout to using "I" statements — to stay in control.

    By the Mayo Clinic Staff


    Your welcome. Best of luck to you.

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  43. "before the British started electing Parliaments, who took over nearly all powers from the monarch, civil wars between competitors for the throne were very common."

    Before people had cars, they rode horses. And people often fought over who got horses. Therefore letting people buy their own cars in free exchanges is just like horse raids. I mean, they both involve two sides, information, planning and deciding who has the transportation, amirite?

    This is black hole dense. But then, someone who would put forward a krazy kooky konspiracy theory that is so absurd that he would then run scared of it day in and day out, who recently confidently and with no evidence offered up the theory that the prosecutions of Michael Cohen and Lev Parnas were politically motivated to push them to 'spill' harmful information on Trump when actually the prosecutor in question was a Trump donor, appointee and campaign volunteer, would make these kind of mental own goals regularly I guess.

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  44. "Keeping your temper in check can be challenging."

    There's no temper involved in offering you chance after change to try to retain some semblance, scintilla, scrap of seriousness, of integrity. What's amazing is how you hide with knees-a-knocking from facing *your own words.* I'll admit they are embarrassing words, laughably so. But you said them, they're archived here and on record. Your hiding from them just demonstrates that you're not in the least serious in commenting here, you won't even back up what you say. Partisan incoherent or pure propagandist.

    How else to explain your inability to own your own your own words?

    And if you could put forward a krazy kooky konspiracy that ridiculous, what would any neutral observer think about the one(s) you are offering up now? If the time is taken to prove them too as demonstrably absurd, will you simply run hiding in someone's skirts from that as well? If so, why should anyone take anything you say seriously? Heck, apparently even you don't take what you say seriously.

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  45. CNN Tweet: Lev Parnas, Rudy Giuliani's associate, said their efforts were "all about 2020." "That was the way everyone viewed it," Parnas added, disputing Trump's claim that the push for investigating the Bidens stemmed from concerns about corruption in Ukraine. https://cnn.it/2teAZdj

    “That was the way everyone viewed it”

    Here we go again. Michael Cohen 2.0. Dem prosecutor indicts Trump associate for fraud and lies, then the defendant tours the usual suspect Democrat media outlets offering hearsay, speculation and opinion concerning alleged Trump acts he did not personally observe, and we are all supposed to believe them.
    # posted by Blogger Bart DePalma : 1:57 PM

    "Here we go again."

    It has become a predictable tactic: Find somebody associated with the target, prove to them you can nail them on something serious, anything really. Then offer a plea deal where you go easy on them for that, even drop it, so long as they plead guilty to doing something bad with your actual target, and start badmouthing them.

    Doesn't even require that the "something bad" be illegal, or that you be able to prove it, since it's a plea deal. And your actual target never gets the opportunity to clear their name, because you don't indict them.
    # posted by Blogger Brett : 2:58 PM

    Joe:

    Political partisans abusing their government power to prosecute associates of a political opponent for the purpose of defaming and destroying the opponent is as corrupt as it gets.

    Do you honestly believe these prosecutors would have ever investigated and charged these targets absent their relationship to Donald Trump?

    Doesn't that cause you any unease at all?
    # posted by Blogger Bart DePalma : 6:58 PM

    https://balkin.blogspot.com/2020/01/on-eve-of-trial.html

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  46. These are not serious persons.

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  47. GM was concerned about 25A issues if Trump had to self-isolate.

    The Brits have a serious problem there and don't even have a 25A.

    https://www.lawyersgunsmoneyblog.com/2020/04/the-british-twenty-fifth-amendment

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  48. Sortition has a very important role to play in governance, but this is not that role. It can be a very useful way to choose members of a deliberative body that studies and debates an issue and the adopts a proposal to be put before all voters for an up or down vote. This is called a Citizens Assembly, at least since the one on electoral reform in British Columbia in about 2005. Even this is not perfect: assembly members can prove to be overly influenced by the choice of experts who testify and consult (and who gets to chose the experts?). And the subsequent public vote can be distorted by unequal campaign funding, and/or starving both the Yes and No campaigns of public funds. Even with those limitations, it has great promise.

    In certain circumstances -- especially in small communities -- it can make sense to select committees or councils by lot. But selecting members of an electoral college by lot only appears to address the problems of the electoral college we actually have. I think it would be a lot better to improve our electoral rules (proportional representation for legislative bodies, majority methods like IRV for executive offices, direct election of the president) than fantasize along the lines of Prof. Levinson's propsal. But his comments at least get us thinking about how dreadful are existing rules really are.

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  49. Mr. Richards, thank you for your comment. I had heard of 'IRV' or Instant Run-off Voting, but until I read your comment can't remember reading much about it. I spent the afternoon doing that, while I'm not sold on it I found it interesting and learned some things today thanks to your comment.

    My immediate concern about IRV would be that it might prove very complicated for many voters. That may be due to unwarranted cynicism on my part, however.

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  50. In the hopes that our trolls are self-isolating under their respective bridges, I'd like to focus now on Sandy's OP a bit more.

    Sandy says that he thinks the laity would object to the proposed sample procedure because 'The laity, on the other hand, I suspect would be appalled at this suggestion because we have built up over the years a true mystique about elections per se.'

    I actually think it would have less to do with a 'mystique' about voting and more about mistrust. I'm not just talking about the feverish mistrust of extremist conspiracy theorists types, though that of course is significant in our nation. But there's also going to be a much less irrational mistrust by many. For one thing, those groups that had to (and still do to some degree) fight for voting rights were often told that even though they were not participating in the vote their 'interests' were being 'represented' by those who were. For blacks, native americans and women that's a loooong history, and I think it would be quite reasonable if they held mistrust over a system that they knew didn't include them. I mean 'them' specifically, of course the system Sandy envisions would take great care, as good social scientists do to get truly representative samples, to include a representative proportion of such groups in the sample; and it's very likely that they would get *better* (more accurate) representation than the current system provides. But under Sandy's system the vast majority of blacks, native americans and women would not, personally, vote themselves, they'd have to trust that the envisioned system has empaneled a sample that represents them. And that's a big ask; much as many blacks, native americans and women today don't trust well meaning white male doctors because of the historical mistreatment of people in the former groups by people in the latter I can see a lot of people in the former groups distrusting this kind of set up. And a big factor for elections is to grant a sense of legitimacy. Granted our current system is terrible for this, what with the structural deficiencies of the EC, gerrymandering, the incredibly disproportionate Senate, not to mention the social stumbling blocks of the role of money and culture in elections.

    Even beyond those groups, post-Watergate distrust of governmental systems is wide spread. John Roberts betrayed some (feigned in my opinion) obtuse ignorance when he weighed in at the oral argument in the recent case regarding gerrymandering that the Court could not base their rules on obscure social scientific formulas ('gobbledygook') because the 'man on the street' who couldn't understand such formulas would be naturally suspicious, but there is some truth (as opposed to sense) to what he said. This would apply to Sandy's proposal as well I think.

    So, it's not so much about 'mystique' or seeing the act of voting as a valued ritual of our civic religion. I think it would be a somewhat irrational, but also somewhat understandable (especially for many groups), suspicion that this system in ways hard for the laity to detect (and therefore inducing suspicion). The losses in legitimacy here would outweigh the gains in 'representativeness.' The fact that, I think, the latter can be increased in ways not involving the former (simply getting rid of the EC, curbing gerrymandering, and taking steps to off-set the problems in the Senate), helps make the case against the proposal.

    I do agree with Mr. Richards that, as always, Sandy's offering makes us all (well, not all, but you get it) think and re-examine our beliefs, which is entirely fitting for a professor of law.

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  51. Mr. W. -- we have IRV here and have had for some years. It's only complicated if one actually takes the trouble to prioritize and vote carefully. A careless or uninformed voter can simply vote for one of the candidates, leaving the other votes blank, rendering it equivalent to the old "first past the post" method.

    I would say, based on the complaints and comments, that the complexity of it is not the primary concern for most people who don't like it. What they don't like is that it renders party endorsements much less valuable.

    If, instead of the ridiculous staggered primary monstrosity we currently use for presidential elections, instead there were, say, two or three rounds of IRV ballots to winnow the field, all rounds being held simultaneously across the country, we'd likely have a much better chance of getting someone who truly represented a careful choice.

    (Note: I assume that, in carrying out such a massive change, the EC would also be done away with as the ridiculous anachronism it is. Of course, the only way that's going to happen is is the people who are happy with the current scheme, which disenfranchises many people in the more populous states, would either suddenly find themselves holding the dirty end of the stick for a change, or else simply stop voting and let it happen. If you're going to dream, you might as well dream big.)

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  52. "A careless or uninformed voter can simply vote for one of the candidates, leaving the other votes blank, rendering it equivalent to the old "first past the post" method."

    "What they don't like is that it renders party endorsements much less valuable."

    I don't mean to be obtuse, but I'm just learning and thinking about this method, so could you elaborate on those two comments (how it works that way)? Thanks.

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  53. The mistrust that Mr. W. speaks of is a part of the issue though part of said mistrust is that the groups seek, have in some fashion fought since the early 19th Century at least, to take part on a basic American ideal of mass participation.

    Some people might have more respect for the interests of the group as compared to the individual (e.g., the Establishment Clause is not applied to tribes in order to give them the ability to honor tribal religions) but even in that respect they act individually in some basic way as part of the group. In some cases, there is even more of an appeal for group participation and agreement by consensus. Not random representatives by lot.

    (Bob Richards eloquently points to the value, as I noted, of the practice -- using a neat word -- in certain situations. Which is fine. But, not here.)

    In this respect, even those who have much less to complain about (non-poor white males) would also distrust it. The ideal is in effect seen as a myth (a "myth" tends to have truth, even if it was a myth or a "legal fiction" ... not granting it is) by the OP on some level. The Jacksonian mass democracy principle, however, is a basic good.

    As to IRV, New York City will start usage this very year, though only for certain races. I shall see how it goes. I think IRV is important. For instance, a notable member of Congress was elected by a plurality. Run-offs only go so far there since often there is a floor. So, fifty-five percent of the population might oppose candidate "x" but since the plurality winner beat the threshold of 40%, the minority wins. This is dubious. It also leads to problems where third party candidates can skewer elections.

    I think our presidential primary system is too long but would think the better approach is a shorter span (perhaps six weeks) with a few regional primaries. This would give candidates time to campaign and the people in different regions to get a sense of the candidates, including their success early. IRV can factor in here -- e.g., in NH, also rans had something like 30% of the votes and their votes were in effect not counted.

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  54. I have mixed feelings about IRV, but party primaries seem like the perfect opportunity to try them out and give people experience with them.

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  55. Yes, NYC will only use them for primaries, and then only for city races.

    https://www.cityandstateny.com/articles/politics/new-york-city/how-ranked-choice-voting-will-work-new-york-city.html

    I think voters will be able to learn to use them though there will be some learning curve as with any new voting method.

    IRV also makes sense when there are more candidates that receive a significant number of votes. A race that is split 40/38/10/2 etc. which is basically how a local Queens DA race went down not too long ago. OTOH, my city's new law doesn't apply to those races.

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  56. "I think our presidential primary system is too long but would think the better approach is a shorter span (perhaps six weeks) with a few regional primaries. "

    Do you think this is an attempt to avoid 'buyer's remorse,' in other words stretching out the nomination allows you to account for the sudden appearance of a scandal involving what was a front-runner?

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  57. I doubt concern for scandals was the main concern though having a chance for other candidates to gain support over one favored front runner probably factors in. Even there, I think we have too much time.

    I don't think on a cost/benefit basis that is a good reason anyway.

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  58. Mr. W.: It depends on the design of the ballot. In the IRV ballot we use, there are multiple columns across the page. The candidates are listed multiple times. The first column is for first choice, the second for second choice, and so on. The voter can simply put a mark in the first column and leave the rest blank.

    There's even a blank for write-ins in each column.

    Other designs are possible.

    Obviously, if there are many races, and many candidates in each race, the ballot gets long. We should not forget that in the current default method, it's possible to design a confusing ballot.

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  59. As to the question of whether IRV reduces the importance of party endorsements, that's merely a guess -- and not merely mine, as I've seen some commentary asserting that IRV weakens the dominance of the political parties in elections. Until the method is used for more than simply local elections, that won't be established.

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  60. It's nice what an interesting, civil, serious, on-topic discussion can be had here once Bircher trolls with their 'bank robber totalitarian Democrats engineered the coronavirus scare to rig elections with illegal alien votes!' nonsense propaganda have been run off.

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  61. C2H5OH, if you don't mind me asking, what state are you in that uses IRV? And you say it's only for local elections? If so I do find that interesting as, at least in my experience, local election turnout is so low and likely draws a higher proportion of interested and relatively informed voters. So I'm not sure IRV success in them assuages my concern with its potential complexity re: a lot of the electorate.

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  62. Minnesota. And, yes, it's for local elections. But turnout here is generally much higher than in other locations. Turnout in the 2018 election was 64 percent.

    I can only say that there were no significant complaints about IRV complexity here.

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  63. "It's nice what an interesting, civil, serious, on-topic discussion can be had here"

    The experience with blogs and other online features (Twitter, Facebook) should cause everyone to think hard about the purpose of the 1A and how it should be applied.

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  64. Mark, true that.

    I know many people, interestingly enough most of them are women, who would be interested in what we talk about here but would very soon be put off by the partisan hyperbolic propagandist nonsense from our Birchers (note, they wouldn't be put off by more reasonable conservatives, in fact some of them lean that way in some areas). The internet does provide a lot of evidence that in such a 'marketplace of ideas' it's mainly, well to use controversial phrase, mostly 'deplorable' people and their speech that dominate and tend to turn or run off the much more reasonable folks. It's sad that way.

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  65. One very sad thing about it is how utterly unnecessary it is. My brother votes Republican. If he were on here he would say that he will vote against Biden and other Democrats generally because he values his 2nd amendment rights, is against affirmative action, thinks that immigration should operate like a dripping rather than full on running faucet, and wants his taxes to be low (heck, I myself agree with a few of those). He wouldn't go on into flimsy conspiracy theories about Joe and Hunter Biden or into how people who think the Constitution allows gun control or affirmative action are 'bank robbers' or 'subverting the Constitution' or 'totalitarians' or 'fascists.' It's just sad that the conservatives we draw are of the Bircher variety. I don't know if that's because that type increasingly dominates the party, the nomination, election and popularity of Trump certainly provides evidence that that is true, but I hope it's not the case. Either way, we deserve better here.

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  66. Blogs with good comment threads have to be moderated, and the mods have to willing to ban repeat offenders.

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  67. Mark's comment reminds me of "The Cult of the Constitution" book which this blog covered. It in part covered Internet related speech (it also covered the 2A).

    Minnesota is briefly cited in the article I linked.

    My primary is in June and New York (being sane on this subject unlike Wisconsin) postponed the presidential election to then too. My state senator and others are working to extend absentee ballot rules. My state constitution makes it impossible to simply have no excuse absentee ballots w/o going thru the extended process to overturn that. But, using if for an emergency of the sort we have now is possible.

    As to Mr. W., I know a Fox News type. I have told her that I simply can't discuss politics with her. She finds it hard to reason things out and I care about the topics too much to blandly listen to bs. I stress out and raise my voice. This does no good. But, it's sad. I like reasoning things out, including with people I disagree with. Flawed as it is, I try to directly engage with what people say such as quoting and responding. Not you know latching on to a sentence and spinning it unfairly.

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  68. Regarding my 10:43 comment: https://www.washingtonpost.com/politics/2020/04/08/trump-who-has-lied-about-voting-years-disparages-voting-by-mail-self-serving-reasons/

    Note the sloppy (absurd actually) reasoning, the inability to see self-contradiction, the partisan driven selectivity of fact, the inability to articulate a logical point (or even a complete sentence), and the paranoid conspiracy 'theorizing.' It's rotting from the head down to the tail, no doubt about it....

    I really think this has to do with the media these people engage with. Fox news (which I see, or used to see, on at the gym every day) and conservative talk radio (which I used to listen to on a commute when there was not much on the radio otherwise) are quite different than 'mainstream' media and news outlets. The latter certainly lean left in general, like most 'new class' or intellectual work occupations those in the field tend to lean left. These however tend to make an attempt to adhere to professional standards of fairness, objectivity and such. Of course their leanings come out despite this sometimes (mostly in what they choose to report on and how they frame it), but they engage in nothing like the non-stop, relentless partisan spin those source on the right I'm noting do. Whatever Republicans of the day are pushing that's basically what's being peddled on those outlets. It's like getting your news and entertainment from direct GOP TV. It's no wonder that those who rely on these outlets primarily and first ape this style of thinking.

    *I want to note here that there are respectable conservative media outlets one could choose to engage in. But what's really needed are outlets that are at least attempting to provide something *non-partisan.* People like our Birchers simply dismiss those kinds of outlets, in their world everyone is as hopelessly biased as they are and our Birchers have demonstrated time and again they can't even wrap their heads around the idea of someone or a group of people having non-partisan professional standards much less value that. And so they're just stewing in their own feverish, partisan juices all the time, and you get the type of thinking I'm talking about (note by accounts Trump, the epitome of this type of thinking, gets his news primarily from one of those outlets-Fox).

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  69. Note too that the President *could* have argued an opposition to increased mail-in voting that would have made some sense and was serious. I'm not saying one that holds such a position at all, that is opposing or reluctance to embrace expansion of mail in voting, makes one automatically not serious. He could have just said 'I'm reluctant to expand it because there's more potential for voting fraud' and left it at that. I myself don't think such an argument wins the day, but it's a reasonable, serious thing to say. But he can't help himself, he has to make an over-the-top, hyperbolic conspiratorial argument, and that's why it's so laughable and un-serious.

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  70. joe-you argue here like a professor, not a partisan. That's what makes all the difference between that approach and that of the less serious people here.

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  71. Mark, I'm not saying you're wrong but I don't know who I would trust to be the 'moderator' in the world writ large...That, of course, doesn't make the concern about how unfettered speech works out any lesser though, of course...

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  72. Right now, the Court serves as the moderator. Limiting the issue to political speech, we already know that false statements of fact aren't protected, not as fraud and not under NY Times v Sullivan. That's an easy case. Personal insults add nothing to any conversation and we don't need to protect them, though line-drawing there can be problematic. Incitements to immediate violence are already punishable and there's a lot of debate about whether the Court has drawn the line in the right place on that subject.

    But before we get into the details, we need to have a discussion about why we want to protect political speech at all (not religion or assembly, just speech). It seems to me that we protect speech because it's intrinsic to democracy -- the idea that we use speech to persuade a majority of fellow citizens. If that's the case, then we should be able to identify the types of speech which can reasonably serve that purpose just as a blog moderator might do. Just my thought, anyway.

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