Census Reapportionment Not Mattering in Obama/Romney Contest

In the last census, northeastern industrial states lost a bunch of electoral votes, and Sun Belt states gained a lot of electoral votes. Democrats tend to do better in the former than the latter. That's the kind of thing that can only matter in a close election, but we're in a close election, so the electoral math matters. Will this shift of electoral power from the left-leaning to the right-leaning parts of the country matter this time around? Well, I suppose we don't know what the actual map will look like just yet, but we can get a sense of how the states are lining up. If we make a "path of least resistance" map, i.e. assign states to each candidate in descending order of how likely (per 538's current forecast) they are to carry those states, we find that Ohio is the tipping-point state right now, i.e. for both the Obama and the Romney path-of-least-resistance winning map Ohio is the last state added to the tally. The map looks like this:

In this map, Obama has 253 electoral votes, Romney has 267, and Ohio's 18 are the tipping-point. If we give them to Romney, he wins 285-253, and if we give them to Obama, he wins 271-267. So the question is, would either scenario be changed by reverting to 2000 census figures?

Answer: no. Of the blue states on that map, Massachusetts, New Jersey, Pennsylvania, Michigan, and Illinois each lost a vote, while New York shed two electors and Nevada and Washington gained one apiece, for a net loss of 5 electors under the new figures. So Obama's 253 electoral votes in these states were 258 votes before the 2010 census; not enough for a victory. But, of course, if you tack on the 20 votes from Ohio, you've got 278, and an Obama win. So the path-of-least-resistance calculus would be identical with the 2000 numbers: if each candidate won every state that FiveThirtyEight currently considers them to be more likely to win than any state they do win (i.e., if each candidate takes a path of least resistance given the current 538 odds), it all comes down to Ohio.

We can monkey with this calculus a bit, however. Suppose Obama loses Ohio, but goes looking for backup options. His best bets are Iowa and New Hampshire, worth a combined 10 votes now and 11 votes last decade. Under the new lines, that gets him to 263, which is no good. Under the old lines, that would have been 269, good for a tie but then, almost certainly, a loss in the House of Representatives. Or what about Virginia? It's got 13 votes under both census counts, so adding Virginia to the blue states on that map gives 266 and a loss under the current lines, but 271 and a win under the old lines. Colorado's 9 votes under both censuses would get Obama to 262 or 267, neither of which is sufficient; however, under the old lines, Colorado plus New Hampshire would have done it.

Another wacky scenario would be if Obama were to win Florida, while losing some other states that look easier for him as of this instant. Tack Florida on to the map above and you get 282 electoral votes under the new lines, and 284 under the old lines--since Florida gained two votes, this reduces the difference. Obviously either would be enough for a win, but we can then peel off Obama's other marginal states: taking away Nevada gets us down to 276 new votes and 279 old votes, and then removing Wisconsin gets us 266 new votes, and a loss, and 269 old votes, and a loss-through-tie.

So in the scenario where Obama loses Ohio but makes up for it by winning either Colorado or Virginia, the 2010 census will have changed the result of the election, but in pretty much any other scenario, it won't have mattered.

Eastern Sweep Propelling Senate Democrats to Victory

Over the last few months, it has become increasingly clear that Democrats are going to sweep the Senate contests in the eastern half of the country, modulo the Deep South. Michigan, Ohio, Pennsylvania, and Florida were supposed to be competitive races with Democrats on the defensive, but really lousy Republican candidates has led to those races all being pretty easy holds (if one ignores the spate of recent polling from lousy Republican firms showing Tom Smith gaining on Bob Casey in Pennsylvania). Connecticut has been mysteriously competitive, but not quite competitive enough for wacky Linda McMahon to triumph. Olympia Snowe's retirement in Maine has led to the impending victory of Angus King, who'll probably caucus with the Democrats, creating a de facto pick-up. The blockbuster Massachusetts contest between Elizabeth Warren and Scott Brown appears to have tilted Warren's way, for another pick-up. Likewise in headline toss-up-ish contests in Virginia and Wisconsin, except that the apparently impending victories by Tammy Baldwin and Tim Kaine will result in Democratic holds.

Most entertainingly, the really idiotic comments by Todd Akin (R-MO) and Richard Mourdock (R-IN) about rape (which were only occasioned by their really unpopular policy positions on abortion) seem like they may have delivered an unlikely hold in Missouri, and an even more unlikely pick-up in Indiana. The result is that it looks like the only Senate contests the Democrats seem likely to lose among those states adjoining or east of the Mississippi River are in Tennessee and Mississippi, which are sort of as expected. And we've got three pick-ups: Angus King replacing Olympia Snowe in Maine; Elizabeth Warren replacing Scott Brown in Massachusetts; and Joe Donnelly replacing Richard Lugar in Indiana.

Now, the Western half of the country is not likely to be as friendly. The Democrats can be pretty sure of contests in Hawaii, California, Washington, and New Mexico. They could lose every other race, though, which would include losing seats in Montana, North Dakota, and Nebraska. But even then, with three pick-ups in the East against three losses in the West, we're holding our position, with 53 Democratic Senators, and a more progressive caucus at that. And the North Dakota, Montana, Nebraska, and Arizona races all feel at least somewhat toss-up-ish, even if the general partisan gravity tells us Republicans kind of ought to win them.

Democratic strength in the Eastern Senate races, in other words, means that we get to play offense in the West. Any success there will give us a bigger majority than we entered the cycle with. And given how much ground we had to defend this cycle, that would be just plain fun.

Early Returns on the Debate Look Good

The day or so after a major news event is a really frustrating time for poll-watchers. There's a sense that the event has probably shaken up the political landscape, but because all the polling being released was conducted before that event, it doesn't reflect it yet, not even one tiny bit. The first indications you start getting are the movements of tracking polls on the second day after the event, and even this is tricky because you have to try and guess at single-day samples from the trendlines. Still, since it's the first evidence you get, it's worth giving it a go until better evidence comes along.

So, with that in mind, Barack Obama gained two points on the margin over Mitt Romney in both the registered-voter and the likely-voter models of Gallup's tracking poll today. That would be the poll that's shown wildly better results for Romney than any other for a good long while. Obama's taken a 1-point lead in the RV model, while still trailing by 3 in the LV version, but it's two points of improvement on either end. Now, this is a seven-day tracking poll, which means among other things that getting into the weeds of the one-day samples is extra treacherous, but the simple math suggests that a 2-point shift from a new one-seventh part of the sample means a net 14-point improvement yesterday over the day it replaced, last Tuesday. That's, um, big. Even with the enormous error bars on that estimate, it's a really good sign.

Even better is the fact that Obama's net approval went up by 5 points today. Since that's a three-day tracking poll, unlike the head-to-head, the simple math suggests a 15-point improvement over the day being dropped. That's basically the same number. So we have two different data points suggesting a roughly 15-point improvement for Obama over the status quo ante. If the actual shift was one-quarter that size, it's a huge deal.

In other words, today's Gallup tracking poll results are a big deal, and they're massively bullish for Obama.

Lochner: Definitely Wrong, but for What Reason?

The Supreme Court's decision in Lochner v. New York (1905), as the representative of the various other cases in which the Court used a similar principle around the first third of the twentieth century, is one of those cases that everyone loves to criticize. In that case, the Court held that state maximum-hours laws for bakers were unconstitutional because they violated the Fourteenth Amendment's Due Process Clause. That involved, first, holding that the Due Process Clause includes substantive limitations on what kinds of laws legislatures can enact, and second holding that the life, liberty, and property interests protected by that Clause include some sort of protection against maximum-hours laws, typically referred to as the "right to contract." The Court used similar "substantive due process" logic to strike down a whole bunch of left-wing labor laws around the same time.

This "Lochner era" is really, really unpopular. Most people tend to criticize it on the grounds that the "right to contract" is a fiction, a bit of political ideology that the Justices at the time happened to like and decided to read into the Constitution where never it was truly to be found. A lot of people, quite rightly, deny that "substantive due process" is valid at all, although some of us who deny its validity argue that the Privileges or Immunities Clause, directly on the other side of a comma from the Due Process Clause, provides a perfectly legitimate vehicle for doing anything you might want to do under substantive due process. New Deal liberals, subsequently joined by a certain kind of conservative, argued that the problem with the Lochner Court was its activism and lack of restraint, its failure to show deference to popularly-elected legislatures. Liberals, who might not entirely reject the idea of the Court being activist and not particularly deferring to legislatures, might just say that the "right to contract" is just the wrong unenumerated substantive right, not that the whole business of finding such unenumerated rights is illegitimate.

But I wonder whether the truth isn't that the Court invented the right to contract but rather that it exaggerated it. Is it really plausible to say that there is no right to contract protected by the Constitution? If one accepts the logic that says that, yes, the Constitution offers protections for contracts, but it only protects existing contracts against being set aside by the states, and after all one cannot contract to do something which is illegal, then why shouldn't the state be able to pass a law against all contracts? That wouldn't impair the obligation of contracts, after all, only prevent new contracts being created. Or maybe just a law against one person agreeing to do work in exchange for another person's giving them money. Or a law against such labor contracts but only when it comes to, say, the medical profession?

I think it apparent that these laws would be invalid, on the grounds of a right to contract, protected under the Fourteenth Amendment's Privileges or Immunities Clause. The reason I can say that without supporting Lochner is that these laws attack the very concept of being able to make contracts, while things like minimum-wage and maximum-hour laws are regulations created, among other things, to keep the people whose very rights are at issue here from getting screwed over, and also to stop their contracts from indirectly screwing everyone else over at the same time. So there is a right to contract, it just doesn't work to prevent any public regulation that limits the stuff you're allowed to make contracts to do. Lochner, therefore, is wrong in its interpretation of the very concept it stands for. It's right there in the decision, where they say that they can't imagine any reason for a law like the one at issue. A whole lot of people could have told them what the reasons were. Probably the lawyers in the case did tell them what those reasons are.

Incidentally, it's worth remembering that a "right to privacy" is sort of dominant vis-a-vis a "right to contract" or even a "right to property." By property, after all, we mean private property. Contracts are private arrangements between two mutually consenting people. Insofar as the Constitution has any sort of general notion of property rights, or contract rights, or what-have-you, it also has a notion of privacy rights. That doesn't prove by itself that the privacy right extends to areas of personal privacy, but I think it's an important connection to make.

Context, Please

Just now I saw a headline on the Huffington Post that a Democratic Senate candidate said that his state wouldn't elect his opponent because "we're not that dumb." The article in question reveals that this was during the debate, and the line was used in a very particular context. Republican Richard Mourdock, a veeery right-wing candidate who Tea Party'd Dick Lugar in the primary, was trying to back off of statements he had made suggesting the unconstitutionality of Social Security and Medicare. Democrat Joe Donnelly said this:

"I may have been born at night, but I was not born last night. When you meet with the Madison Tea Party and you say to them, you show me where in the Constitution it allows Medicare, and you show me where in the Constitution it allows Social Security, we're not that dumb. We know what you are implying, and we know what you are driving at. You also said Medicare should be turned into a voucher system."

This is pretty standard stuff, right? It's the idea that, look, you're trying to pull a fast one on the voters of this great state, but we're not idiots, you can't fool us. Now, if Donnelly had just said, apropos of nothing in particular, "I know Indiana won't elect Richard Mourdock because we're not that dumb," it would be a serious gaffe. It would be, among other things, deeply insulting to everyone in Indiana who planned on voting for Mourdock. This line isn't anything like that, however. He's not making any accusation against anyone based on their current intentions, just saying, look, if you think that line will work, think again, we're not that dumb.

So it's misleading to put just the "we're not that dumb" line in your headline. It could either be something really insulting that would probably deserve to damage a candidate (except that nothing except partisan affiliation actually matters, blah blah blah), or something completely innocuous like this. 

"State Fundamentals" And the 2012 Senate Contest

According to the forecast from FiveThirtyEight, Nate Silver's famous election forecasting site, Democrats are currently expected to hold 52.4 Senate seats after this election on average, a decline of just 0.6 Senators from their current position, and are given 86.4% odds of retaining the chamber. Those are some nice numbers for a year when Democrats were expected to get pretty well hammered. They've got Democrats leading solidly in MA, RI, NY, NJ, PA, DE, MD, OH, WV, MI, MN, CA, and WA, with rather robust leads in HI, NM, MO, WI, VA, CT, and FL, plus a tiny lead in IN. Republicans have modest leads in MT, ND, NV, and AZ, with a stronger lead in NE and locked-down leads in TX, UT, WY, TN, and MS. Independent candidates are projected to win in Vermont and Maine, both rather solidly. If you were to just "call" each state according to who's favored to win it, however slightly, you'd get 53 Democrats, including Bernie Sanders and Angus King, maintaining the status quo in overall caucus membership.

But digging into the numbers a bit, we find that there are a lot of important states where FiveThirtyEight is assuming that partisan gravity will play a really substantial role. In Arizona, for instance, the "adjusted polling average" has Republican Jeff Flake leading Democrat Richard Carmona by just 0.4%, but the "state fundamentals" say it's an R+8.3% state, so overall they've got Flake winning by 1.9%, and sporting a 62% chance of victory. In Connecticut, Democrat Chris Murphy's lead over Republican Linda McMahon is just 1.7% in the adjusted polling, but the +19.1% Democratic fundamentals number turns the whole race into Murphy +4.4%, 74% chance of victory. Indiana adjusted polling gives Democrat Joe Donnelly a 2.7% lead, but the fundamentals say it's Republican Richard Mourdock by 1%, so Donnelly's lead is just 0.3% in the forecast, and just a 52% chance of winning. In Montana, Democratic Senator Jon Tester holds an 0.6% lead in the adjusted polling, but Republican Denny Rehberg is favored by the state fundamentals by 8%, giving him a 1.6% lead overall, and Tester just a 38% chance of holding his seat. In North Dakota, adjusted polling shows a tied race between Republican Rick Berg and Democrat Heidi Heitkamp, but Berg takes a 4.9% lead in the forecast on the strength of a 10.5% lead in the fundamentals, and Berg is given 78% odds of victory.

That's a lot of key Senate contests being very heavily affected by our a priori assumptions of the race. That's not to say that FiveThirtyEight is doing anything wrong by adjusting for state fundamentals, and we can see that states with more robust polling are giving less weight to the fundamentals. But it is interesting to observe. As I read the landscape, the battle for control of the Senate is being fought on Democratic terrain in the East and Midwest, in Wisconsin, Missouri, Ohio, Florida, Virginia, Connecticut, and Massachusetts. But the battleground in which Democrats will seek to expand their majority is Western Republican terrain: Montana, North Dakota, Nevada, Arizona (okay, and let's give Indiana a special exemption, even though it's not western). If you're a believer in partisan gravity, then you would expect Democrats to squeak through the one blue-state defensive contest where the polling's been a bit scary, namely Connecticut, and to pull through the toss-up races, but not to pick up the Republican-held seats out west. If partisan gravity fails to show up, though, Connecticut will be very close, although probably will still go for the Democrat, but Montana, North Dakota, and Arizona become very interesting. Tack on those three states, plus a slightly more solid lead in Indiana, and Democrats could get to 56 seats without even winning in one of the more Hispanic states in the nation, Nevada.

In one way it will be an interesting test of modelling assumptions. In another, it's a demonstration of the need for more polling. These Senate contests in small states with non-competitive Presidential contests are important. People need to be polling them. That they are not doing so is not okay.

Ron Paul Will Save The Day!

...or not.

There's an article on the Huffington Post about how hilarious, though admittedly awful, an Electoral College tie would be. It's a scarily plausible scenario, honestly, because this is a really plausible map:

That's basically the Kerry states plus New Mexico, which is looking like a virtual lock at this point, and Ohio, where Obama's numbers have held up really well. It feels like this is an actual stopping-point on a uniform-swing analysis, where you shift the margin in each state by the same amount at the same time. In other words, this could happen, on an admittedly pretty bad night for Obama. And it's a 269-all tie ballgame map. Which is scary, because Republicans are almost certain to control a majority of the House of Representatives delegations next year, even if they don't control the House which, if we've had a tied Presidential election, let's be honest, they will.

Now, one quirky thing about this is that even in a tied Presidential race year, the Democrats could actually hold onto the Senate, or at least keep at least 50 votes in it. And it's the Senate, not the House, that picks the Vice President in case of a tie. And, well, that would get us a Romney-Biden Administration, possibly with Joe Biden getting to cast the deciding vote in his own favor. But, well, the VP has no formal legal responsibilities, so except insofar as he would give the Democrats a half-vote's extra maneuvering room in trying to block Romney in the Senate, it wouldn't matter much.

But the thing I found most hilarious about that article is the fact that some Republican electors are, apparently, Ron Paul devotees, and are seriously considering acting as "faithless electors" and voting Ron Paul instead of Mitt Romney. The rhetoric about how the Founders didn't design the Electoral College to just mimic a popular-vote contest is pretty delicious as well. So we could get Obama 269, Romney 267, Ron Paul 2, or some such. Except the problem is, as amazing as it would be for faithless Ron Paul elector to hand Obama the elector, it doesn't work like that. If Ron Paul were actually running in the election and managed to pick off a few EV's, say by winning Alaska, and make it 269-266-3, we'd still go to the House, and they would still be able to do whatever they wanted, namely elect Romney. You need to get an outright majority. If Ron Paul were running and, miracle of miracles, gobbled up a whole bunch of states, so that it was something like 250 Obama, 200 Romney, 88 Ron Paul, it would be the same story. Once Obama doesn't win 270 EV's outright, the only thing that can save him is a sufficient number of faithless electors swapping from Romney to Obama himself. And, uh, I haven't heard any suggest that that's going to happen. If Romney wins 270 or 271 EVs on Election Night, however, Ron Paul's forces of darkness could turn it into a no-outright-majority scenario and send us to the House and the Senate, but that would probably only result in Joe Biden getting to stand around doing nothing for a while.

A pity, because the world in which this was how Obama won the election would just be such an awesome world to live in.