On Harry's Hindsight

Sure, Harry Reid has managed to trap himself now on the subject of Roland Burris, and is getting a lot of criticism for it. But how many of you saw his dilemma coming? At the time the Blagojevich scandal broke, did Reid and the Democrats really have any choice but to distance themselves as much as possible, and assert flatly that they wouldn't seat anyone that he nominated? Did they really have any reason to expect that a quasi-credible candidate like Roland Burris would actually accept Blagojevich's nomination (as opposed to someone like, say, Patti Blagojevich?)

I think Reid can be criticized for one thing -- for failing to advocate for a special election. But even if the Democrats had made a more earnest push to hold a special election, that would still have provided for the possibility that Blagojevich would attempt to nominate someone in the meantime. What were they supposed to have said? "You know Rod, we really have no legal grounds to block your nominee, so please pretty please with a cherry on top don't do it?"

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Shameless Self-Promotion

FiveThirtyEight is a 2008 Weblog Awards nominee in the category of 'Best Political Coverage', not that you should go and vote or anything like that.

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Palin v. Murkowski Cold War Heating Up? Polls Show Contradictory Results.

Lisa Murkowski had better hope that Sarah Palin doesn't elect to run for the Senate in 2010. That's because a Research 2000 poll conducted two weeks ago for Daily Kos has Murkowski trailing Palin 55-31 among Republican primary voters.

Sarah Palin had better not be so foolish as to challenge Lisa Murkowski. That's because a Dittman Research poll for the local blog The Alaska Standard shows her losing to Murkowski 58-31 in a prospective primary matchup.

Huh?

Alaska is perhaps the most difficult state in the country to poll. Its residents are in a strange time zone and keep strange schedules; it has very high rates of cellphone usage; it has highly unusual demographics. Several pollsters, including Research 2000, had no idea that Don Young would hang on to defeat Ethan Berkowitz in November, nor that Ted Stevens would come so close to Mark Begich.

Nevertheless, I think this is pretty unprecedented. Two polls of the same race show a 51-point gap between them, with one having Murkowski leading Palin by 27 points and the other having her trailing her by 24. Which one is right?

Actually, I'm not sure that this one is too hard to adjudicate. The Alaska Standard is an attractive and engaging blog, but its lead author, talk show host Dan Fagan, is most definitely not a fan of Mrs. Palin. In fact, although Fagan is a staunch conservative, virtually all of his posts are anti-Palin in some way, most recently regarding some controversy surrounding Levi Johnston.

Fagan very much is a fan, however, of Lisa Murkowski. Not only that, but Murkowski has written an article for this website, and is listed as one of its contributors along the side panel. The pollster, David Dittman, is also listed as a contributor.

So you'll excuse me if I don't find it terribly shocking that when this website decided to conduct a poll, it contained GREAT NEWS!!! FOR LISA MURKOWSKI!!!

I don't know whether Murkowski was directly involved with commissioning the poll in any way, but will presume that she wasn't. Nevertheless, the Dittman poll should be regarded the same way that a "leaked" internal poll is, which is to say very dubiously. And if Murkowski was for some reason involved in the creation of the poll, the fact that she feels the need to start spinning 18 months before a primary against an opponent who has yet to declare for the race and probably never will suggests to me that she's very scared of the 'Cuda indeed.

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Senate Rankings, January 2009 Edition

In the wake of Jeb Bush's surprising announcement today that he will not run for Senate in Florida in 2010, this seems like an appropriate time for the monthly refresh of our ridiculously premature 2010 Senate Rankings.

To review the basic ground rule: the races are ranked in terms of their likelihood of changing parties. In some cases, the ranking is the result of an incumbent being vulnerable, and in other cases, because the incumbent may retire -- we try our best to mesh these things together into some inkling of probability. Away we go:

1. Florida (R-Open)
Without Bush in the race, the field is wide open on both sides. Given an open seat and one of the purplest purple states in the country, that means this race meets the very definition of a toss-up.

2. Nevada (D-Reid)
No, the Republicans don't really have a credible opponent yet, but one thing the past few weeks have made clear is that Reid is going to be a focal point for criticism -- from both the right and the left -- and there's a strong likelihood that someone will come out of the woodwork. I also think people may be underrating the chances that Reid gets sick of it all and retires.

3. Pennsylvania (R-Specter)
Looking more likely that Specter may face a primary challenge, but the general election remains his central concern. The Chris Mathews rumors have cooled off some, but it's not clear whether that's good or bad news for Specter.

4. Ohio (R-Voinovich)
5. Kentucky (R-Bunning)
6. Kansas (R-Open)
Remains an overlooked race; if Kathleen Sebelius wants the seat, she probably has a leg up. But there are rumors that she'll become chancellor at the University of Kansas rather than running for Senate.

7. Missouri (R-Bond)
8. Illinois (D-??)
I'm not sure what other possible permutation of circumstances could do more to make a generally safely blue seat competitive. Still, the Democratic bench is fairly strong, and they're lucky this is all taking place in Illinois instead of, say, Ohio.

9. Colorado (D-Bennet)
I was prepared to move this race down when it looked like Denver Mayor John Hickenlooper was going to be Ken Salazar's replacement, but with unknown schools superintendent Michael Bennet getting the nod instead, it becomes a much more attractive target for Republicans. Still, the state is turning bluer, and most of their candidates haven't polled very well against nearly any Democrat. They may also wind up punting on this race if they make the mistake of nominating Tom Tancredo.

10. North Carolina (R-Burr)
11. New Hampshire (R-Gregg)
12. Texas (R-Open?)
It appears nearly certain that Kay Bailey Hutchinson will vacate her seat to run for Governor, and now the Republicans will have a formidable opponent, as moderate Dem and Houston Mayor Bill White has declared his interest in the race.

13. Iowa (R-Grassley)
Although polling suggests that Tom Vilsack could make a race of things, it's improbable that he'll run unless Grassley retires -- and what I'm hearing from Iowa constituents is that Grassley is unlikely to do so. (ed: Forgot that Vilsack will become Secretary of Agriculture. Still, if Grassley retires, there will be no shortage of strong Democratic challengers for the seat --nrs).

14. Delaware (D-Open)
15. Arizona (R-McCain)
16. New York (Jr.) (D-??)
Long Island Congressman Peter King is apparently interested in challenging Caroline Kennedy -- or whomever else Governor Paterson puts in this seat. Although King himself is not very likely to win, the fact that he's willing to give up a House seat that he'll probably never win back suggests that Republicans don't consider the race off-limits. Democrats might not consider the seat off-limits either, potentially giving Kennedy a vigorous primary challenge.

17. Arkansas (D-Lincoln)
18. California (D-Boxer)
19. North Dakota (D-Dorgan)
20. Connecticut (D-Dodd)
21. Alaska (R-Murkowski)
New polling in this race suggests that Lisa Murkowski is vulnerable, most certainly to a primary challenge by Sarah Palin and possibly in the general election too. But, the Democratic bench in Alaska is not strong.

22. Oklahoma (R-Coburn)
23. Wisconsin (D-Feingold)
24. Hawaii (D-Inoyue)
25. Georgia (R-Isakson)
26. Louisiana (R-Vitter)
27. Maryland (D-Mikulski)
28. South Carolina (R-DeMint)
29. Washington (D-Murray)
30. Vermont (D-Leahy)
31. Alabama (R-Shelby)
32. South Dakota (R-Thune)
33. Indiana (D-Bayh)
34. Oregon (D-Wyden)
35. Utah (R-Bennett)
36. New York (Sr.) (D-Schumer)
37. Idaho (R-Crapo)

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Most Americans Oppose Seating Burris, But Reid's Options are Few

My wish is Gallup's command. A new poll commissioned by Gallup and USA Today shows that 51 percent of Americans think that Roland Burris should be blocked from filling his seat in the United States Senate, while just 27 percent support seating him.

The results are a fairly close match for our unscientific poll of FiveThirtyEight.com readers; 57 percent of you are opposed to Burris taking his seat, and 43 percent in favor

I would say that I'm modestly surprised by these results. I didn't necessarily expect the majority to support seating Burris -- but, I thought he had become a somewhat more sympathetic figure, perhaps having some success in his myriad media appearances portraying himself as an innocent bystander (victim?) in all of this. What's interesting, though, is that there are not particularly large partisan differences in all of this. In the Gallup poll, Democrats were opposed to seating Burris by a 49-30 margin, and Republicans by a 61-25 margin. Americans seem to see this as a Good Government issue rather than a partisan one.

Still, as Chris Cillizza outlines, Harry Reid is left with few good options. The problem in a nutshell is that there's no easy way to block Burris from taking his seat. Doing so would entail several more confrontational and potentially embarrassing moments on the Hill followed by a protracted legal battle. Nor do any of the "deals" making the rounds seem particularly viable; Burris could tell read that he wouldn't run in 2010 in exchange for being seated, for instance, but nothing would bind him to that promise. Perhaps as a result of this, both a majority of our readers and the punters at Intrade think it more likely than not that Burris will eventually be seated.

The exception, of course, might be if Reid were to persuade the Illinois legislature to pass a special elections law, while probably allowing Burris to take his seat on an interim basis until the special election was held. There are numerous benefits to this: the special election option is quite popular both with Americans and Illinoisans; the Democrats could get Burris's vote in the meantime with little political fallout and no risk of a legal battle; and, if a Democrat won the special election, they would probably put the Rod Blagojevich issue to rest and enter as the heavy favorite in 2010, when the seat is up for a full six-year term.

The risk, naturally, is that the Democrats might lose the seat to Mark Kirk or another Republican. But given that all of the alternatives to a special election carry their own risks, we're getting pretty close to the point where it is the best option even from a zerosum, partisan perspective. And if a special election is anywhere close to the best option from a capital-D Democratic perspective, surely the fact that is the best option from a lower-case-D democratic perspective should carry some weight.

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Party Like It's 538!

Those of you who will be in Washington for the Inauguration are advised to do two things. Firstly, dress warmly, because we wouldn't want the whole William Henry Harrison thing to happen to any of you. And secondly, please come to the party that we are co-hosting in conjunction with Netroots Nation and many of my favorite bloggers. The party will be held on Monday the 19th, the evening before the inauguration, because that's how the cool kids do it. Tickets are going fast and are a mere 90 bones, which includes four drink tickets and a relaxed and rollicking time. Guaranteed to be more fun than a quorum call!

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Be Careful Where You Get Your Stimulus

The consensus among the blogosphere seems to be that Obama's proposal for a $300 billion tax cut is intended as a preemptive concession to the right in order to build bipartisan support for his economic stimulus initiative. Obama, certainly, has a lot of incentives to get Republicans on board with his bill. As his first major initiative out of the gate, building a "bipartisan" stimulus might allow Obama to maintain the pretense of being post-partisan (something which, for all the left's skepticism of it, probably helps his approval ratings and thereby his political capital). It might insulate him from taking all of the criticism if the stimulus fails to stimulate. Arguably, a larger majority might also do more to bolster consumer and investor confidence. Still, the feeling on the left is that Obama is mistaking this for an opportunity to build political capital, when it should be one of the times that he spends it.

What this analysis seems to be taking for granted is that the tax cuts are something the Obama administration does not want on their own merits. This, however, is far from self-evident. Obama's economic team is fairly centrist, number one. Obama campaigned on a tax cut, number two (albeit a tax cut paired with a tax hike for the wealthy). And number three, even most liberal economists seem to think that some measure of tax cuts are a decent idea, although there are questions about which taxes should be cut and in what amounts. (Likewise, most conservative economists seem to think that some measure of spending increases are a good idea -- it's just a question of how much).

Basically, I would resist the temptation on either side to see the stimulus in too overtly ideological terms. The ordinary rules are suspended during a severe recession: what matters is -- empirically, theoretically -- What Works. Instead, I would encourage everyone to cut down on their consumption of political blogs for the next few weeks and instead read more of Brad DeLong and Greg Mankiw and Paul Krugman and Tyler Cohen. Those are the sorts of people I'm interested in listening to on this; all others must bring data.

Where I think there is more room for partisanship is in discussing how we spend what we spend, and how we cut taxes where we cut them. An $800 billion stimulus package that consisted of $500 billion in alt.energy investments and $300 billion in FICA tax cuts would be quite progressive -- and quite different from one that contained $500 billion in defense spending and $300 billion in capital gains tax cuts, even if the proposals happened to be relatively similar in terms of the immediate-term objective of ending the recession.

This is not to say that the how much questions are entirely within the domain of economic analysis, nor that the how questions are entirely within the domain of political analysis -- there are obviously some overlaps between the two. But the trade-off between, say, building bridges and building solar power grids is easier for political folk to understand than the relative abstraction of whether to spend a marginal $100 billion at the cost of running up the deficit. For the latter sorts of questions, I would tend to defer to the economists in the audience.

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Where's the Roland Burris Poll?

Still waiting on Rasmussen, Zogby, et. al. to poll this question, so in the meantime I guess we'll have to create a (nonscientific) poll or two of our own:

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The Good News for Coleman...

...is that the Minnesota Supreme Court's order (.pdf) today didn't make any judgment whatsoever about the merits of Coleman's case on absentee ballots. It merely said that the time to resolve these things is during an election contest, not during the recount itself. And since there's an election contest coming, Coleman's argument will get, quite literally, its day in court.

Coleman's problem, however, is not so much that his argument is legally unsound but that it's not especially likely to benefit him even if the Court rules in his favor. The Court had previously asked the counties to double-check their absentee ballots and identify any that might have been rejected in error; the counties did that, and came up with a collective 1,300 or so. The process the Court set up required both campaigns to agree on a ballot before it was counted, and about 400 ballots were vetoed by one or the other campaign. The other 900 were forwarded to the Canvassing Board and were counted on Saturday.

My guess is that the 400 vetoed ballots have a pretty strong chance of being counted at some point. (Will they benefit Coleman? Given that the absentees that were counted went strongly for Franken, the odds are probably not.) But this is not the subject of Coleman's claim -- instead, he's stating that there are some 650 additional erroneously rejected ballots that the counties missed during their sweep of absentees.

What Coleman wants the Court to do, in other words, is to order that the counties re-re-examine their absentee ballots. What might happen if that takes place?

First of all, I doubt that very many of the ballots on Coleman's list of 650 are going to be found to have been rejected improperly. Remember, the counties have already sorted through their absentees at least twice -- once on Election Night, and then a second time in accordance with the court order. Some counties, in fact, have even gone through their absentees a third time in accordance with the wishes of the Coleman campaign, and where they have, such as in Ramsey and Pipestone counties, the counties found that all the ballots on the Coleman list had been rejected properly. The process is somewhat analogous to vacuuming your floor; you aren't going to gobble up nearly as much dust on your second sweep through the living room as you did the first time around, even if you'd done a haphazard job. So this is problem #1 for Coleman. His list of 650 ballots is going to be significantly pared down, and will probably wind up closer to 65 than 650.

Secondly, those absentee ballots are sealed, so we don't know how many of them will turn out to be votes for Coleman. Presumably, the Coleman campaign thinks that the ballots are more likely than not to favor him, or he would not have included them on his list. But "more likely than not" might mean 50% Coleman ballots, 35% Franken ballots, and 15% other. If all 650 ballots were counted with those percentages, Coleman wouldn't get more than a 98-ballot net gain, less than half of his present deficit with Franken.

And thirdly, precisely because the ballots on Coleman's list are likely to favor Coleman, that also means there is some undetermined number of ballots that were also rejected in error but which are likely to favor Franken. Let's say that the Coleman campaign is sorting through a spreadsheet of rejected absentee ballots, and identifies one from Stanley Terwilliger of Eden Prarie, Minnesota, who has voted Democratic in every election since 1964, contributed $2,300 to the Franken campaign, and once got in an ice hockey brawl with Norm Coleman's twin brother Lars. Is that ballot going to make Coleman's list? Uh, probably not. But if the Court ordered a comprehensive re-recounting of the absentee ballots, it probably would get swept in -- and would turn out to be a Franken ballot.

Let's be frank: Norm Coleman doesn't have much of a future in electoral politics. Defeated Presidential candidates sometimes have nine lives, but defeated Senatorial candidates rarely do, and in his career running for statewide office, Coleman has lost to a professional wrestler, beaten a dead guy, and then tied a comedian. He doesn't have much to lose by fighting this to its bitter conclusion. But it's hard to envision how he'll come up with enough ballots to overtake Franken.

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Did the Wall Street Journal Fire their Fact-Checkers?

The Wall Street Journal is bar none one of the best newspapers in the country -- except when its Editorial Board is having a bad day. And today the Board is having a very bad day, having published an editorial that declares Al Franken's provisional win in Minnesota, which the state just certified moments ago, to be illegitimate, while accusing Minnesota's Canvassing Board of being inconsistent and biased in favor of Franken.

There is nothing intrinsically wrong with taking such a position. The Journal's editorial, however, has several basic facts wrong, makes several other assertions based on flimsy or nonexistent evidence, and generally has little understanding of the process that has taken place to date.

Let's go through the editorial paragraph by paragraph.

Strange things keep happening in Minnesota, where the disputed recount in the Senate race between Norm Coleman and Al Franken may be nearing a dubious outcome. Thanks to the machinations of Democratic Secretary of State Mark Ritchie and a meek state Canvassing Board, Mr. Franken may emerge as an illegitimate victory

"Machinations": there's a ten-dollar word. Ritchie may be a Democrat, but he was also democratically elected -- lower case 'D' -- by the people of Minnesota. And as for the Canvassing Board, it arguably leans to the right, consisting of two members appointed by Tim Pawlenty, one appointed by Jesse Ventura, one elected member, and Ritchie.

Mr. Franken started the recount 215 votes behind Senator Coleman, but he now claims a 225-vote lead and suddenly the man who was insisting on "counting every vote" wants to shut the process down. He's getting help from Mr. Ritchie and his four fellow Canvassing Board members, who have delivered inconsistent rulings and are ignoring glaring problems with the tallies.

Actually, Coleman is having far more trouble with the Minnesota Supreme Court, which generally has a conservative reputation, than he is with the Canvassing Board. They're the ones who rejected his petition on duplicate ballots, and they're the ones who rejected his notion of wanting to tack on additional ballots to the absentee ballot counting.

Under Minnesota law, election officials are required to make a duplicate ballot if the original is damaged during Election Night counting. Officials are supposed to mark these as "duplicate" and segregate the original ballots. But it appears some officials may have failed to mark ballots as duplicates, which are now being counted in addition to the originals. This helps explain why more than 25 precincts now have more ballots than voters who signed in to vote. By some estimates this double counting has yielded Mr. Franken an additional 80 to 100 votes.

There are 25 precincts with more ballots than voters? I'm not sure this is actually true. There were certain precincts with more votes counted during the recount than there were on Election Night -- which is not surprising, considering that the whole purpose of a hand recount is to find votes that the machine scanners missed the first time around. I have not seen any evidence, on the other hand, that there are precincts with more votes than voters as recorded on sign-in sheets. And the Coleman campaign evidently hasn't either, or it presumably would have presented it to the Court, which rejected its petition for lack of evidence.

Also, note the weasel-wordy phrase "by some estimates", which translates as "by the Coleman campaign's estimate". There is no intrinsic reason why Franken ballots are more likely to be duplicated than Coleman ballots, especially when one significant source of duplicate ballots is military absentees, a group that presumably favors the Republicans. Coleman, indeed, only became interested in the issue of duplicates once he fell behind in the recount and needed some way to extend his clock. Before then, his lead attorney had sent an e-mail to Franken which said that challenges on the issue of duplicate ballots were "groundless and frivolous".

This disenfranchises Minnesotans whose vote counted only once. And one Canvassing Board member, State Supreme Court Justice G. Barry Anderson, has acknowledged that "very likely there was a double counting." Yet the board insists that it lacks the authority to question local officials and it is merely adding the inflated numbers to the totals.

The Canvassing Board indeed determined that it lacked the jurisidiction to handle duplicate ballots, telling Coleman that he had to go to court. Which he did. And the court threw the case out because Coleman didn't have any evidence.

In other cases, the board has been flagrantly inconsistent. Last month, Mr. Franken's campaign charged that one Hennepin County (Minneapolis) precinct had "lost" 133 votes, since the hand recount showed fewer ballots than machine votes recorded on Election Night. Though there is no proof to this missing vote charge -- officials may have accidentally run the ballots through the machine twice on Election Night -- the Canvassing Board chose to go with the Election Night total, rather than the actual number of ballots in the recount. That decision gave Mr. Franken a gain of 46 votes.

Actually, there is some proof: the number of votes identified during the recount fell 134 short of the number of voters who signed in on Election Night in this precinct.

Meanwhile, a Ramsey County precinct ended up with 177 more ballots than there were recorded votes on Election Night. In that case, the board decided to go with the extra ballots, rather than the Election Night total, even though the county is now showing more ballots than voters in the precinct. This gave Mr. Franken a net gain of 37 votes, which means he's benefited both ways from the board's inconsistency.

The decisions are not inconsistent if the Canvassing Board's objective is wanting to count every vote.

And here again the Journal is going on about the county "showing more ballots than voters in the precinct". If there is evidence of this, it would be news not just to me but also to the Coleman campaign.

And then there are the absentee ballots. The Franken campaign initially howled that some absentee votes had been erroneously rejected by local officials. Counties were supposed to review their absentees and create a list of those they believed were mistakenly rejected. Many Franken-leaning counties did so, submitting 1,350 ballots to include in the results. But many Coleman-leaning counties have yet to complete a re-examination. Despite this lack of uniformity, and though the state Supreme Court has yet to rule on a Coleman request to standardize this absentee review, Mr. Ritchie's office nonetheless plowed through the incomplete pile of 1,350 absentees this weekend, padding Mr. Franken's edge by a further 176 votes.

This is just blatantly false. All counties, red and blue alike, were instructed by the Supreme Court to identify any wrongly-rejected absentee ballots, and all of them did. In certain counties, Coleman claims to have identified additional wrongly-rejected absentee ballots above and beyond the ones that county officials identified -- but these were counties that nevertheless complied with the court's order and turned in their lists of ballots to the state.

Both campaigns have also suggested that Mr. Ritchie's office made mistakes in tabulating votes that had been challenged by either of the campaigns. And the Canvassing Board appears to have applied inconsistent standards in how it decided some of these challenged votes -- in ways that, again on net, have favored Mr. Franken.

I watched the video feed of the challenge adjudication process and did think there were some number of inconsistencies, particularly in the ways that ballots with 'X's on them were handled. But, I was looking at .pdfs of the ballots, whereas the Canvassing Board got to look at full-color, three-dimensional copies, which may make some difference in borderline cases. More to the point, however: (1) both candidates had their lawyers in the room when this adjudication was taking place, and had every right to press the Board on perceived inconsistencies, and (2) there is no evidence whatsoever that these inconsistencies hurt any one candidate particularly more than the other.

The question is how the board can certify a fair and accurate election result given these multiple recount problems. Yet that is precisely what the five members seem prepared to do when they meet today. Some members seem to have concluded that because one of the candidates will challenge the result in any event, why not get on with it and leave it to the courts? Mr. Coleman will certainly have grounds to contest the result in court, but he'll be at a disadvantage given that courts are understandably reluctant to overrule a certified outcome.

He'll be at a disadvantage because fewer people voted for him.

Meanwhile, Minnesota's other Senator, Amy Klobuchar, is already saying her fellow Democrats should seat Mr. Franken when the 111th Congress begins this week if the Canvassing Board certifies him as the winner. This contradicts Minnesota law, which says the state cannot award a certificate of election if one party contests the results. Ms. Klobuchar is trying to create the public perception of a fait accompli, all the better to make Mr. Coleman look like a sore loser and build pressure on him to drop his legal challenge despite the funny recount business.

But it doesn't contradict Congressional precedent, as the Congress generally has seated provisional winners while challenges were taking place, including Republican Representative Vern Buchanan in 2007 and Democratic Senator Mary Landrieu in 1997.

Minnesotans like to think that their state isn't like New Jersey or Louisiana, and typically it isn't. But we can't recall a similar recount involving optical scanning machines that has changed so many votes, and in which nearly every crucial decision worked to the advantage of the same candidate. The Coleman campaign clearly misjudged the politics here, and the apparent willingness of a partisan like Mr. Ritchie to help his preferred candidate, Mr. Franken. If the Canvassing Board certifies Mr. Franken as the winner based on the current count, it will be anointing a tainted and undeserving Senator.

New Jerseyites! Louisianans! Cancel your subscriptions! And the rest of you might as well too.

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Why Are There No Black Senators?

When the House of Representatives convenes tomorrow, it will contain 39 African-American members, not including non-voting delegates in places like the Virgin Islands and the District of Columbia. This number, representing about 9 percent of the Congress, falls somewhat short of the fraction of African-Americans in the population as a whole -- a truly representative House would have about 55 black members -- but perhaps not dramatically so. The situation at first glance would appear to be much better than it was prior to 1990, when there were generally only about 20 black members in the House at any given time.

The districts these 39 Congressmen serve, however, are not very representative at all. All 39 contain a higher percentage of African-Americans than the population as a whole, ranging from Keith Ellison's district in Minneapolis, which is just barely more black than the national average, to Jesse Jackson Jr.'s on the South Side of Chicago, which is 68 percent African-American. About 64 percent of the members -- 25 of 39 -- come from districts that contain an outright black majority. The districts are also much more Democratic than the country as a whole, with an average PVI of D +25; only Sanford Bishop's district in Georgia, which has a PVI of D+2, is anywhere close to the national average.

The chart below estimates the percentage chance that the Representative in a given Congressional District is black given the African-American population in that district, as based on a logistic regression. The chances of having a black Representative are virtually nil until the African-American share of the population hits 25 percent, at which time it begins to accelerate rapidly until the black population hits 60 percent, after which point having a black congressman is virtually certain.



The problem with this is that, while there are a decent number of Congressional Districts that have African-American populations of 25 percent or more, only six states do, and five of the six are culturally conservative areas in the Deep South. Suppose that we treat each state as though it were a Congressional District and evaluate its chances of having a black congressman based on two factors: its African-American population and its Partisan Voting Index.

State          Black    PVI    Prob
------------------------------------
Maryland       28.9     D +9   15.2%
Mississippi    37.4     R +8   9.0%
Louisiana      31.6     R +6   5.6%
Georgia        29.8     R +6   4.3%
Delaware       20.7     D +7   4.3%
New York       15.5     D +15  3.9%
South Carolina 28.6     R +7   3.3%
Alabama        26.3     R +9   2.1%
Illinois       14.8     D +7   1.5%
North Carolina 21.4     R +5   1.5%
New Jersey     13.6     D +8   1.5%
Virginia       19.6     R +3   1.4%
Michigan       14.1     D +4   1.1%
Florida        15.4     D +1   1.0%
Tennessee      16.8     R +3   0.8%
Arkansas       15.6     R +3   0.7%
Connecticut     9.5     D +9   0.6%
Massachusetts   6.1     D +14  0.5%

If the states were Congressional Districts, then the most likely one to elect a black Representative would be Maryland, which nevertheless has only a 15 percent chance of doing so. All other states are below 10 percent, and in most cases, the probabilities are very small indeed.

Of course, the states are effectively big Congressional Districts for purposes of electing senators and governors. Suppose you added up the probabilities of each state electing a black congressman, and then multiplied it by two since each state gets to elect two senators. How many black senators would you expect? You'd expect there to be about one -- or more precisely, 1.2. And you'd need to halve that number to estimate the expected number of black governors, which would be 0.6.

If one looks at the composition of the House of Representatives, then, one shouldn't be surprised that there are so few black senators and black governors, because states are far more heterogeneous (racially and otherwise) than individual Congressional Districts, and African-Americans are by and large not getting elected to the House outside of a certain number of highly black, largely homogeneous, and often heavily gerrymandered Congressional Districts in the urban North and the rural South.

The question, of course, is why African-Americans aren't getting elected in these districts. Racism is undoubtedly part of the answer, but it probably can't be a complete one now that the country has just elected Barack Obama to the White House.

It would be helpful to know where in the chain the link has been broken. Are African-Americans declining to become candidates in swing districts? Are they becoming candidates, but losing their party's nomination? Or are they winning the nomination, but losing in the general election? I don't have this sort of information handy, and so I cannot say for sure.

I suspect that a lot of the problem, however, is that as Congressional Districts have become more and more gerrymandered, leading to the creation of more and more majority-minority districts following the 1980 and 1990 censuses, the black political apparatus has become more and more 'ghettoized'. Black candidates have not had to develop a message that appeals to white voters, because most of them don't have very many white voters in their districts (about half the nation's African-American population is limited to the 60 blackest Congressional Districts). Nor do they have very many conservative voters in their districts, and so they have not had to develop a message that appeals to conservatives, even though the black population itself is far more diverse in its political views than is generally acknowledged.

Because they are not very representative of their states as a whole, moreover, these districts are also not likely to be very good launching pads for ascension to the Senate or to the governor's mansion. Do I think Jesse Jackson Jr. would have some trouble winning statewide office? I do -- but I also think that Pete Stark, who lives in a mostly white and Asian but extremely liberal district in the Bay Area, would have trouble becoming a senator in California.

Conversely, of course, the majority-minority districts drain black voters from surrounding districts, and so white politicians have not had to develop messages that appeal to black voters. This may be particularly problematic for Republicans, who went from winning 16-18 percent of the black vote for the Presidency in the 1970s to only about half of that now.

Democrats ought to be mindful of these things when redistricting occurs again after 2010, aggressively challenging Republicans on both the wisdom and the legality of creating ghettoized Congressional Districts. Majority-minority districts harm Democrats by creating surplus Democratic votes, and in the long run, they probably hurt African-Americans too.

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Tim Kaine Reportedly To Head DNC

Granted, it's been an unusually active political weekend, but there's been surprisingly little reaction to today's news that Virginia Governor Tim Kaine will become chairman of the Democratic National Committee.

My first reaction is that this is all very ... predictable. Kaine was facing a very challenging set of circumstances if he wanted to continue to hold elected office: Virginia has an unusual law that prevents governors from serving consecutive terms (although Kaine could, theoretically, run again in 2013), and meanwhile, both of Virginia's Senate seats are now filled by Democrats, and relatively young ones at that. Kaine's political aspirations for at least the next four years, therefore, were going to be pretty much limited either to this particular job or to a position in Barack Obama's cabinet. Given that Kaine was one of the first politicians anywhere to jump on the Obama bandwagon, it's not surprising that he was paid back.

Kaine does strike me as being a pretty good fit for this position, though. He oozes a certain sort of optimistic sincerity that ought to play pretty well on television, where he's liable to be deployed ubiquitously on the Sunday Morning talk circuit, perhaps sometimes playing "good cop" to Harry Reid and Nancy Pelosi. It seems probable that Kaine's role is going to be more about public relations than tactics, with the latter function to be fulfilled in large part by elements of the Obama apparatus itself.

The appointment will also give Kaine quite an opportunity to define himself as a candidate for national office, something that Kaine is plenty young enough to be thinking about.

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Can Franken Give Burris His Daily Affirmation?

One of the quirks of the unresolved senate race in Minnesota and Illinois is that it really does the Democrats no good to have just one of Al Franken and Roland Burris seated -- they only gain ground if and when both get sworn in.

This is why. Presently the Democrats have a 57-member caucus, counting neither Burris nor Franken. However, because there are currently only 98 senators, this reduces the number of votes required to break a filibuster from 60 to 59. (Vacancies are not counted when calculating the number of votes needed to break a filibuster; three-fifths of 98 is 58.8, which rounds up to 59). Therefore, the Democrats would need two crossover votes to pass a cloture resolution.

But now, suppose that Franken gets seated but Burris doesn't. The Democrats add a member to their caucus, brining them to 58 members. However, with 99 senators rather than 98, the filibuster threshold goes back up to 60 votes (three-fifths of 99 is 59.4, but the rule in this instance requires rounding up). Thus, the Democrats remain two votes shy of breaking a filibuster.

Once the Democrats get senators seated in both Illinois and Minnesota, however, they'll have 59 votes out of the 60 they need, leaving them just one vote shy -- and Sens. Specter, Snowe, et. al. ripe for the picking.

So long as it looked as though the Minnesota race was going to take a long time to resolve, then, the Democrats really weren't giving anything up by failing to seat Burris -- his vote only really helps them if Franken has been seated too. Suddenly, however, with Franken having amassed a 225-vote lead on Norm Coleman, the landscape looks different. While the Coleman campaign is still suggesting that it will contest the election, one wonders what sort of appetite Coleman will have to accumulate more and more legal bills if he determines his situation is hopeless. At the very least, the likelihood has improved that the race will be resolved within two or three weeks, rather than two or three months.

So the stakes are a now a little higher for Harry Reid: Illinois, rather than Minnesota, now appears as though it may be the limiting factor in getting the Democrats into as advantageous a position as possible.

One option that hasn't been much discussed, by the way, is that of seating Burris temporarily and then holding a special election later on. This would allow the Democrats to sort of have their cake and eat it too, getting their 59th vote for several months while still creating a relatively clean break from Blagojevich. Of course, the Democrats would risk losing their seat in the special election, but perhaps the Republicans would reward them for that risk by agreeing to seat Franken while Coleman's election challenges are pending, something they seem disinclined to do so far.

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Franken Jumps Out to 225-Vote Lead on Strength of Absentee Ballots

Minnesota took until 5 PM today to begin actually counting rejected absentee ballots, as the Canvassing Board sorted through various legal objections, underwent the arduous task of physically opening more than 900 ballots, and then gave the campaigns a chance to review the back of the ballots for identifying marks. Once they finally got underway, however, with election officials calling out the names of the candidates one ballot at a time, Franken went on a long winning streak and essentially never looked back.

All told, Franken gained a net of 176 ballots from the 952 under review according to The Uptake's unofficial count, putting him 225 votes ahead in the recount overall. Excluding disqualified ballots, Franken won 53.7 percent of the votes counted today, Coleman 34.1 percent, and other candidates 12.4 percent. Franken's 225-vote advantage is now slightly larger than the one Norm Coleman held before the recount began, when he led by 215 votes based on the certified Election Night tally.

Although the absentee ballots were expected by all observers to help Franken's prospects, the nearly 20-point margin that he ran up on Coleman today was surprisingly large; two pre-election polls that surveyed absentee voters had Franken winning that group by 8 points and 12 points, respectively. (n.b. Originally missed the Research 2000 poll on this -- nrs). It should also be remembered, however, that the Democrats made a large nationwide push for early and absentee voters this year, with Barack Obama overperforming by as many as 20-30 points among those voters in certain states.

The other possibility, of course, is that the Franken campaign did a more effective job of using its veto power on absentee ballots, perhaps by taking better advantage of voter lists.

Either way, a number of legal stratagems that might have seemed appealing to the Coleman campaign might now be somewhat mooted. For instance, even if all 130 ballots that the Coleman campaign claimed were double-counted for Franken were removed from his tally (but no ballots at all had been double-counted for Coleman), Franken would maintain a significant advantage. With Franken doing so well among the absentee ballots that were counted today, moreover, any Coleman attempts to get more absentee ballots counted would seem to have a high risk of backfiring.

EDIT: It appears that Franken's lead is now 225 votes, not 223 as previously reported, based on an a count provided orally by state officials in St. Paul today.

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Is Jesse Jackson Jr. Electable?

So now Harry Reid is in trouble for apparently having told Rod Blagojevich that he didn't want Jesse Jackson Jr. to fill Barack Obama's Senate seat. Nor did he want Danny Davis or Emil Jones, who are also African-American candidates. Reid apparently "did not believe the three men were electable", according to the Sun-Times.

Right now, with Jackson's name being at least tangentially tied up in the Blagojevich scandal, he might well have a difficult time winning statewide office in Illinois. But these communications between Reid and Blagojevich apparently took place before the scandal broke, so let's concern ourselves with that hypothetical. Was Jackson electable then?

In the literal sense of the term "electable", of course Jackson Jr. was electable. Before the Blagojevich scandal, virtually any Illinois Democrat was going to be the favorite over virtually any Illinois Republican. One only need back to look to 2006 when Blagojevich himself, already relatively unpopular in Illinois, defeated a fairly appealing, moderate Republican in Judy Barr Topinka by 10.5 points. Having the big 'D' by your name is exceptionally advantageous in Illinois -- or at least it once was.

Nevertheless, I don't think that Reid was wrong to conclude that Jackson Jr. was relatively more vulnerable to an upset than another Democrat might have been.

On December 4th, about a week before the Blago scandal broke, Rasmussen released a poll asking Illinoisans who they preferred to succeed Barack Obama. Jackson Jr. was named by 23 percent of Illinoisans, essentially putting him in a three-way tie with Lisa Madigan (25%) and Tammy Duckworth (21%).

A look at the internals of the poll, however, suggests that Jackson's support was fairly limited outside of his base.

Candidate preference by party:

Candidate      DEM      Indie      GOP
Jackson, Jr.   36%       14%        9%
Duckworth      29%       19%       12%
Jones           2%        3%        6%
Madigan        17%       23%       37%
Schakowsky      8%        9%        5%

Nearly all of Jackson's support came from Democrats, among whom he was the plurality favorite to succeed Barack Obama. He placed a fair bit behind Madigan and Duckworth among independents, and received very little support among Republicans.

Unsurprisingly, these results are strongly tied to the issue of race:

Candidate preference by racial group:

Candidate     White     Black     Other
Jackson, Jr.   10%       81%       21%
Duckworth      22%        6%       31%
Jones           2%        4%        6%
Madigan        31%        0%       23%
Schakowsky      9%        2%        5%

Jackson had the support of 81 percent of black voters in the Rasmussen poll, but just 10 percent of whites. He did do reasonably well among those in the "other" category -- which in Illinois, means mostly Hispanics -- getting 21 percent support, though he still trailed Duckworth among that group.

Now, it is hard to translate the results from a straw poll like this into a prospective matchup against a Republican opponent. But a reasonable worry for Reid is that, while African-American voters would probably have supported another Democrat in a matchup against a Republican, white voters who might have gone for someone like Madigan might not have gravitated to Jackson.

In the 2006 gubernatorial race, Illinois' turnout was made up of 77 percent white voters, 10 percent black voters, and 13 percent "other". Let's say that Jackson Jr. received a turnout bonus among black voters, boosting their share of the electorate to 12 percent, bringing white voters to 75 and leaving "other" at 13. Let's furthermore say that Jackson Jr. wins 95 percent of the black vote -- a Barack Obama type of number -- and 60 percent of the "other" vote. These Jackson votes account for a total of 19.2 percent of Illinois' electorate.

In order to receive a majority, Jackson Jr. would then have to win the support of just slightly over 41 percent of white voters. In Illinois, about 35 percent of white voters are Republicans, 35 percent are Democrats, and 30 percent are independent. What if, say, Jackson received the support of 80 percent of white Democrats, but just 35 percent of white independents and 5 percent of white Republicans? That would bring him to 49.4 percent, denying him election by a point or so.

Hypothetical 2010 Election:

___                    Share of
Group                 Electorate  Jackson Jr.   GOP
African-American        12.0%        95%         5%      
Hispanic/Asian/Other    13.0%        60%        40%
White Democrats         26.25%       80%        20%
White Independents      22.5%        35%        65%
White Republicans       26.25%        5%        95%
===================================================
Total                   100%        49.4%      50.6%

Now, obviously these numbers are completely made up. Perhaps Jackson Jr. would get more like 70 percent of Hispanic voters instead of 60 percent, or more like 85 percent of white Democrats instead of 80 percent. All that I'm saying is that given Jackson's tepid support outside of his base, there is a plausible path to defeat here, one that might not have existed for someone like Madigan.

I do share rikyrah's concern over at Jack & Jill Politics. If Reid was looking for someone electable -- should he really have been looking at Tammy Duckworth? The fact of the matter is that Illinoisans have gotten to see an awful lot of Tammy Duckworth, and they simply don't like her all that much -- note that she's getting barely more crossover support than Jackson in the Rasmussen poll. Duckworth also couldn't defeat a non-incumbent Republican in Illinois' 6th Congressional District in 2006. Although IL-6 is a slightly Republican district, registering as an R+3 on Charlie Cook's PVI scale, 2006 was a very, very Democratic year. Democrats were knocking off Republican incumbents in R+3 districts all over the country in 2006, and they certainly should have been favored in an open seat race. I'm a pretty big proponent of the No Loser Rule: don't nominate someone for higher office if they lost their last race for lower office.

In all probability, though, this seat would be considerably more vulnerable to Republican takeover if Jackson were the nominee than if Madigan were instead, or for that matter someone like state treasurer Alexi Giannoulias.

If Harry Reid hadn't expressed that concern to Blagojevich, then Harry Reid really wouldn't have been doing his job.

NOTE: To be clear, my argument is about Jackson Jr. and Jackson Jr. only, who along with Madigan and Duckworth, has strong enough statewide name recognition that we can credibly discuss their chances of winning election. I don't particularly know about Davis, or for that matter someone like Jan Schakowsky, who are little known outside of their home districts. In particular, the implication that Jackson is more likely to lose than Madigan seems credible. On the other hand, the implication that, say, Davis is more likely to lose than Tammy Duckworth is far more speculative.

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In Minnesota, End of the Beginning Starts Today

UPDATE (10:30 AM): Apparently, when officials in Hennepin County asked the Coleman campaign why they wanted "new" absentee ballots included in the recount, they were not able to detail why the county had rejected those ballots in error. A lot of the actions the Coleman campaign is taking right now are engineered with an eye toward raising doubt about the process to create more public sympathy in the (inevitable) event of an election contest. It may be that the extra absentee ballots they identified are something of a distraction ploy.

UPDATE (9:48 AM): The state will now begin counting the ballots; see The Uptake for live video coverage. The Supreme Court has not yet ruled on Coleman's petition, nor was the recount team in St. Paul willing to delay the counting until it heard from the Court.

____
At 9 AM local time, Minnesota officials will begin counting more than 900 absentee ballots mutually agreed upon by the campaigns to have been wrongfully rejected -- unless they don't.

If it proceeds unimpeded, the counting of absentee ballots is likely to bolster Franken's lead, as proportionately more rejected absentees were identified in counties won by Franken. If we simply allocate out the absentees in each county based on the proportion of the November 4th vote (.pdf) received by each candidate, that would imply 414 ballots for Franken, 383 for Coleman, and 156 for "other", adding 31 votes to Franken's lead.

The apparent edge for Franken comes as each campaign has had essentially a unilateral veto to prevent any particular absentee ballot from being opened and counted. Initially, based on a review of the process in Democratic stronghold St. Louis county, it appeared that the Coleman campaign was being far more aggressive than the Franken campaign in exercising its veto. Information gathered by additional counties by the Star Tribune, however, suggests that this may not be the case, and that the Franken campaign has been at least as aggressive as Coleman in exercising its veto.

The Star Tribune has reported on the disposition of absentee ballots in six counties, including the "Big 3" blue counties (Hennepin, Ramsey, St. Louis) won by substantial margins by Franken on election day, as well as three smaller counties won by Coleman.


In the Big 3 counties, Coleman vetoed about 18 percent of absentee ballots, Franken 11 percent, and 2 percent were vetoed by county officials, leaving slightly less than 70 percent of the ballots to be opened and counted.

Interestingly, however, in both Ramsey and Hennepin Counties, Franken actually vetoed more ballots than Coleman. There are some number of red precincts in each of these counties, and so it is possible that the Franken vetoes came in those areas. It is also possible, however, that the Franken campaign has better information than the Coleman campaign. Although the absentee ballots are sealed, the name of the voter in question can be identified, and a campaign that had superior voter lists could in fact do some very precise cherry-picking.

In the three smaller red counties that the Star Tribune identified, Franken vetoed 28 percent of the ballots, and county officials and the Coleman campaign almost none. The overall fraction of the ballots forwarded to the state from these counties was 68 percent.

To be clear, both campaigns seem inclined to employ the veto power provided to them by the state to their utmost advantage. If, however, Coleman is engaging in macro-level cherry picking (moving to reject ballots based on the characteristics of the county), and Franken is engaging in micro-level cherry picking (moving to reject ballots based on the characteristics of the voter as provided for by his voter databases), then Coleman may be at a substantial disadvantage, and Franken is likely to gain more ground from the counting of the absentees than the 31 votes we implied above.

The contingency is that the Coleman campaign is once again back in court, having filed an motion for emergency order (.pdf) with the state Supreme Court on Wednesday. The motion ostensibly seeks a uniform standard for the counting of absentee ballots -- something which, by all available evidence, the process that the court initially established for the counting of absentees, in giving each campaign an essentially arbitrary and unilateral veto, did a poor job of ensuring.

Coleman's motion is fairly sneaky, however, because the relief he is specifically requesting is his motion is not to blow the whole thing up and start the absentee ballot process again over, but rather, for the inclusion of about 650 absentee ballots, mostly from heavily red counties, that have already been identified by his campaign as being wrongfully rejected, but which were not identified as such by the respective counties. The Franken campaign, for its part, identified 80-90 such ballots.

Coleman is trying to thread the needle here. On the one hand, he knows that if the state counts the absentee ballots as is, they are only likely to add to Franken's margin. On the other hand, if the state started the process completely over, Franken might conceivably also identify hundreds more absentee ballots that he believed had been ignored by the county officials. Basically, Coleman wants the state to permit his 650 ballots to be counted -- as well as Franken's 90 -- and then to freeze things in place.

Any of a variety of rulings from the court are possible; we may know the outcome within the hour.

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Bennet, Denver Schools Chief, Reportedly Chosen as Colorado's Next Senator

In a mild surprise, Colorado Governor Bill Ritter has reportedly chosen Denver schools superintendent Michael Bennet to be the Rocky Mountain State's next Senator, replacing Ken Salazar, who is expected to be named Barack Obama's Secretary of the Interior. Bennet beat out a number of more familiar names for the position, including Denver Mayor John Hickenlooper, and John Salazar, the Congressman from Colorado's third district and the younger older brother of Ken.

Colorado is one of four states that will require senators to be appointed as a result of Barack Obama's transition the White House. Remarkably, it now appears possible that none of the four appointees will be present holders of elected office. Indeed three of the four have never before run for elected office. This includes Bennet, who worked for an investment firm prior to becoming superintendent, and Delaware's Ted Kaufman, a Beltway political operative who was formerly Joe Biden's chief of staff. Caroline Kennedy, if she is named to Hillary Clinton's seat in New York, has also never run for office. Only Roland Burris in Illinois, if the Democrats choose to seat him, would break the rule, having been his state's Attorney General until 1995.

In contrast to certain of the other selections, however, this one would appear to be eminently meritorious, as Ritter had a rich group of candidates to pick from, and as Bennet's work in Denver was regarded strongly enough that he was reportedly a finalist to become Obama's Secretary of Education. Relatively little is known about Bennet's politics, however. If he fits the profile of a typical Colorado Democrat, he'll be liberal on social issues and the environment, but more moderate on fiscal policy (as his business background might imply).

Salazar's seat was to be up for re-election in 2010, and so Bennet -- if he so desires -- would soon have the opportunity to compete for a full six-year term. I would be modestly surprised if Bennet is merely intending to serve as a placeholder, as at age 44, he is on track to become the youngest member of the United States Senate.

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Pick Your Poison, Arlen

It can't be much fun being Arlen Specter these days:

But the issue puts Specter in a particularly tough position that is a typical quandary for Republican moderates. Facing reelection in 2010, he hails from a state where unions are strong and the electorate is becoming more and more Democratic. That puts pressure on him to support the labor bill.

But Specter often faces opposition from fellow Republicans for being too liberal: In 2004, he faced a tough primary challenge from the right by Pat Toomey, who is now president of the Club for Growth, an anti-tax conservative group.

Toomey says that if Specter casts a decisive vote on the labor bill, "he virtually assures he will deal with a primary challenge and he hands the challenger a powerful issue."

The labor bill in question is the Employee Free Choice Act, a bill on which Specter's vote is absolutely crucial to the Democrats. Specter voted for cloture when EFCA came up in 2007 -- he was the only Republican to do so -- and has long had the backing of labor unions in Pennsylvania, most of whom endorsed him against Democrat Joe Hoeffel in his successful re-election bid in 2004.

But Pat Toomey, the conservative Republican who came closer to knocking off Specter in 2004 than Hoeffel did (losing by just 1.7 percentage points in the Republican primary) seems to be suggesting that he'll run against Specter if Specter votes for EFCA. Is Toomey -- or another conservative Republican -- a credible threat to Specter?

On the one hand, conservative Republicans tend to be out of vogue these days, especially in a state like Pennsylvania, who couldn't kick Rick Santorum out of the Senate fast enough in 2006. But the preferences of Pennsylvania's electorate as a whole hardly matter. Pennsylvania is a closed primary state, and so only Republicans would vote in the event of a primary challenge. With many of Pennsylvania's moderates having registered with the Democratic Party in order to vote in this year's Democratic primaries, Specter might not be able to count on much crossover support in the primary, especially with the Democrats liable to have a very interesting primary of their own taking place at the same time.

Still, Specter wouldn't seem to be in too bad of shape among his base. Quinnipiac has his favorability ratings among Republicans as 60 percent favorable, 21 perecnt unfavorable. Specter's ratings were notably poorer in 2004, when as of April of that year, Quinnipiac had measured his numbers as 52 percent approve, 31 disapprove among Republicans.

Toomey is now President of the Club for Growth, which came to his aid in 2004 but has a somewhat spotty track record of late, having lost 3 of the 4 Senate races where they backed a candidate in November. It's hard to know whether an organization that brands itself as the Club for Growth tends to do will be seen as a part of the problem or a part of the solution if the economy remains sluggish two years from now.

For the time being, however, Specter would seem to be at greater risk of losing in the general than in the primary. If he thinks he can guarantee himself labor's backing in the general in 2010, odds are that he'll call Toomey's bluff.

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More Reading on Burris, and Another Attempt at Legal Analysis

Since my previous efforts at constitutional analysis have been received with some (warranted) skepticism, let me first point you toward a series of arguments made on either side of the Roland Burris issue by people more qualified to tackle this stuff than I am, and then try and advance a somewhat more sophisticated and legally sound argument.

Firstly, some smart folks arguing that the Senate probably does have the right to exclude Burris:

Akhil Reed Amar and Josh Chafetz, Slate
Lyle Dennison, SCOTUSBlog
Jack Balkin, Balkinization

And here are some other smart folks arguing that no, the Senate probably does not have such authority:

Scott Lemieux, Lawyers, Guns and Money
Brian Kalt, Concurring Opinions
Eugene Volokh, Volkoh Conspiracy

The crux of the argument seems not to be, as I questioned originally, whether Burris' appointment constitutes an "election" as specified by Article 1, Section 5 of the Constitution. The Senate certainly has had no trouble challenging appointments before, although it hasn't done so (at least as far not as I can tell) since the Powell v McCormack decision in 1969. (Amar and Chafetz also argue that -- notwithstanding the question about what constitutes an "election", the appointment of Burris qualifies as a "return", which the Senate also has the power to judge under Article 1, Section 5). Rather the question in light of the Powell decision, is to what if any extent the Senate is restricted in its power to serve as the judge of such an appointment.

I do think that -- and, in case this isn't clear to anyone, this is just a layman's reading of the decision -- people may be underestimating the intended scope of Powell, which seems to have been trying to cast a fairly wide net. In particular, the opinion holds that:

Unquestionably, Congress has an interest in preserving its institutional integrity, but, in most cases, that interest can be sufficiently safeguarded by the exercise of its power to punish its members for disorderly behavior and, in extreme cases, to expel a member with the concurrence of two-thirds. In short, both the intention of the Framers, to the extent it can be determined, and an examination of the basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote.

Emphasis mine. The key word in that paragraph is probably "discretionary". One can imagine two extremes here. In one case, imagine that the governor of Arizona, a state which requires that an appointed senator be from the same party as the vacating one, attempted to nominate a candidate from the other party instead, in apparent contravention to the state law. Or, to draw a more plausible scenario, suppose that the appointee switched parties on the day before her appointment to circumvent that law. Clearly, it seems, the Senate would have the authority to strike this down.

At the other extreme, imagine that in Indiana, which has no such law, Evan Bayh decided to resign from the Senate, Governor Mitch Daniels decided to appoint a Republican to fill his seat, and that the Democratic majority in the Senate didn't like this and so voted to exclude Daniels' otherwise-qualified appointee merely because they didn't want another Republican in their chamber. I would hope that the Senate would be precluded from doing something like that.

What the Powell decision seems to hold is that, if the Senate wants to exercise its discretionary power to prevent someone from serving in the Senate, it has another mechanism to do that, which is expulsion. So the decision to exclude a member must in some sense be non-discretionary.

In the case of a question about a member's qualifications to serve in the Senate, there is a pretty clear bright line between a discretionary decision and a non-discretionary one, which is that the Constitution specifically establishes the qualifications for serving in the Senate, such as being of sufficient age and being a U.S. Citizen. But can such a bright line be established between a discretionary and non-discretionary action in the case of the Senate's right to judge a gubernatorial appointment?

I don't know. What the Burris folks will probably argue, if the case gets that far, is that the Senate's power would be limited to judging whether such an appointment was made in contravention of either state or federal laws. That is, a non-discretionary judgment is one involving the enforcement or interpretation of such laws, and in order to be allowed to render such a judgment, the Senate needs to put a legal question before itself.

That the Burris appointment appears to be legal under Illinois law, that the state has alternate mechanisms to preclude Blagojevich from making such an appointment (either removing him from office or requiring that the vacancy be filled by special election), and that neither Blagojevich nor Burris have yet been convicted of any wrongdoing, might tend tip the scales in favor of this being precisely the kind of discretionary decision that the Court was seeking to prevent in Powell.

If, on the other hand, Blagojevich were impeached before Burris had been sworn into the Senate, perhaps the Senate might then have the right to judge whether Burris' appointment had been nullified by that impeachment, and to exclude him if it so chose. Perhaps the Senate also has the right to judge whether Blagojevich's appointment is invalidated by the failure of Illinois' Secretary of State to certify it. These are fairly specific legal questions.

Nor am I suggesting that the Senate has no right to judge the Burris appointment on its face. But the "non-discretionary" component of that might be to judge whether the appointment was legal or not -- not merely to judge whether it was in poor taste.

At the very least, the people arguing for a narrower interpretation of Powell would seem to have to reconcile the way in which the Court distinguished exclusion from expulsion in that opinion. Amar and Chafetz argue that the distinction is merely that exclusion concerns a potential member who has not yet been seated, whereas expulsion concerns someone who already sits in the chamber. That is a perfectly commonsensical interpretation -- but it is not the one that the Court appears to have made in Powell.

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Mapping the New Senate

Second in a series.

We'll call this version 'Version A'...



Notes: the "vote" provided in the example is entirely hypothetical.

The senior senator from each state is always designated on the left-hand side or the top-hand side of each dyad, whichever is applicable.

A couple of alternate versions follow below the jump.

Version B...



Version C:



...and Version D:

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