Is Bustamante Busted or BS-ing? Do we really think Lt. Gov. Cruz Bustamante has already spent the $4 million in illegal donations from casino tribes, government employee unions, and others that a judge recently ordered him to return? The television ads (featuring Bustamante wading into an adoring crowd) are still running, apparently. Will they continue to run? Don't you think that if Bustamante cancelled the ad buy the stations would give the money back? I'm told that is a common practice. ... 2:51 A.M.

In the wake of Weintraubgate, Hugh Hewitt has taken to calling the Sacramento Bee the Stingless Bee. But isn't a better name the P.C. Bee? ... 5:22 P.M.

Lost Tribes II: If you watched the Ninth Circuit en banc oral argument, you now know that the "Screws Bustamante" outcome first suggested by Daniel Weiner--which would involve restoring the California recall election to Oct. 7 but postponing the vote on Proposition 54--is now a very real possibility. ... Hasen agrees, but points out some obstacles. ... Slate's Dahlia Lithwick, unaccountably, doesn't ridicule Laurence Tribe's argument--in which, it seemed to me, he tossed virtually all of his Equal Protection argument overboard in the course of debating the various judges and groping for a rule that might  cover the weak facts of this case. ... 5:12 P.M.

'Free Weintraub' update, updated: Word out of the Sacramento Bee is that ombudsman Tony Marcano's report  misleads in suggesting that star writer Daniel Weintraub was required to submit his blog to an editor just because the legislature's Latino caucus objected to these sentences:

If [the California Lt. Governor's] name had been Charles Bustmont rather than Cruz Bustamante, he would have finished his legislative career as an anonymous back-bencher. Thus there is reason to wonder how he would handle ethnic issues as governor.

And while people can debate forever whether MEChA and its more virulent cousins do or do not advocate ethnic separatism, it's indisputably true that the Legislature's Latino Caucus advocates policies that are destructive to their own people and to greater California, in the name of ethnic unity.

It turns out that Weintraub wasn't saddled with a minder to placate PC forces in the state legislature enraged by this "Bustmont" crack, because he'd already been saddled with a minder to placate PC forces within the Bee's own newsroom enraged by the "Bustmont" crack! 

Weintraub is a Bee editorial-page employee, not a news employee. Apparently the news side of the Bee has never liked his blog, for some obvious reasons--e.g. he's been beating the pants off them. His provocative anti-Bustamante comments were enough to trigger a newsroom-led bureaucratic Thermidor. (It was as if he was criticizing affirmative action!) Executive editor Rick Rodriguez says "folks on the staff brought" the issue to him after Weintraub's posting. They "wanted to know if it was edited," he says, though he adds he suspects they mainly wanted to "yell at some editors" about it. Rodriguez volunteers the ethnic makeup of the angry newsroom "folks": "Some were Latino, some Anglo, some black." The result was a review of Weintraub's status. "Our policy at the Bee is that everything's edited," Rodriguez declares.

Amazingly, this may be the Bee's best defense--in effect, "We didn't let the Latino caucus muzzle Weintraub because we muzzled him first!" (What were the complaining Latino legislators told? Marcano says he thinks the paper is "still crafting" a response; Rodriguez agrees, saying it's the publisher's job and he hasn't spoken with her about it: "It's not even on my calendar.")

One obvious test of the new arrangement: Would Weintraub's new pre-clearance editors have allowed the offending sentence through? "Maybe, maybe not, but I think that conversation ought to be held," says Rodriguez. Other informed sources agree that some editors would OK it, some wouldn't. That's enough to confirm my suspicions that Weintraub doesn't have the freedom he once had. His work is already suffering, I think.

Rodriguez argues that the new editorial review, complete with "conversation," shouldn't delay a post for more than "10 or 15 minutes"--and he says the Bee editing desk is staffed until midnight. But delay is only half of the pre-clearance problem. The other half is self-censorship. If Weintraub isn't willing to have a blow-up, to-the-wall fight with his editor (especially if  Mr. "Maybe Not" is manning the computer) he'll tone it down in advance. That's doubly true because Weintraub's supervisors now know that if they greenlight anything as controversial as "Charles Bustmont" they're likely to get another visit from some "folks" on the news staff--Latino, Anglo, and black!--who are looking to "yell at some editors."

I don't want to pretend this is a completely uncomplicated issue. Rodriguez recognizes that "two cultures are clashing," and concedes that maybe the Bee just can't do what unaffiliated bloggers are able to do. He claims, not crazily, that accuracy suffers without editorial supervision--citing Weintraub's erroneous prediction that Arnold Schwarzenegger wouldn't run for governor: "What does that do for the credibility of the Sacramento Bee?"  The news section tried to check the prediction out, he says, and it didn't meet their "standards" for sources. "It didn't make it into the paper."

I'd concede that pre-publication editing often improves pieces--depends on the editor--but not enough to justify what is lost on the Web (where you can always do post-publication fiddling if necessary). The controversy that provoked Weintraub's semi-castration wasn't a question of inaccuracy or libel, after all. It was a question of Weintraub's non-crazy opinion offending some "folks" in the newsroom. As for accuracy--well, Marcano's ombudsman report, which is edited, contained a huge inaccuracy: the implication that the complaining Latino legislators had prompted the Weintraub change. It's an inaccuracy that's still doing damage to the Bee's reputation. (And it still hasn't been corrected. Except here.) ... Update: Marcano emails to note that he has freely corrected the error on radio and in emails (as well as in his phone conversation with me). He just hasn't done it in print:

The reason it hasn't been in the Bee yet is that I only learned about it yesterday, and my column doesn't come out until Sunday. I'll say it again then. ...unlike a 24-7 blog, I have to wait a week to do it.

Fair enough. But that's my point, isn't it? Unlike a mistake in a print column (or for that matter, a mistake on radio) a mistake in a "24-7 blog" can be easily and quite effectively corrected in the same place it was made. For this reason, the cost of a blog error is less than the cost of a print error. That means when you are balancing a) the cost of errors versus b) the cost of more procedures and "standards," you come out in a different place for blogs than you do for print. Update update: An alert kf reader and several Drezner readers  report emailing Marcano--and none seem to have received an email containing a correction of Marcano's error. Most received form letters. One received a rude response.

P.S.: I obviously think the Bee leadership has made a large, embarrassing mistake. But the "Free Weintraub Coalition"  shouldn't necessarily take it out on the paper's editorial pages, or the editorial page editors' new blog--they seem to be the relatively Webby, loosey-goosey ones in this fight. It's the dark, malevolent "news" side, apparently, that harbors the envious PC anti-speech bureaucrats. ... P.P.S.: I haven't talked to Weintraub himself about this--he declined an invitation to comment. ... Warning: What you've just read has not been pre-cleared. Click if you do not want to see this notice again. ... More:Instapundit makes an excellent point about adding thoughts to a blog post incrementally, much as I am doing even now. His point is that if you had to fly each little "P.S." or "More" by an editor it would drive him (or her, or you) batso. The other alternatives are a) to not make the points at all, or b) to try to save up all your little points until some grand, artificial roll-the-presses-style moment when you present them to your overseer and then cease thinking about a subject. There's no way that approach (b) doesn't lose thoughts and information when compared with just posting things by yourself as they come to you. In part that's because (b) tends to encourage (a). ... Backup: From Patrick Frey. ... Still more: Jeff Jarvis, an ex-big-time editor himself, has several sensible pithy comments. ... 4:12 P.M

Bustamante re-busted:The Bee's still-unmuzzled Dan Walters, backing up  William Bradley and Daniel Weintraub 's charge, says Cruz Bustamante is either lying or "woefully ignorant" when he blames the California budget crisis on the California energy crisis. ... 11:00 A.M.

Free Pregerson too! So Judge Harry Pregerson  violated the judicial code of conduct by in effect calling the Ninth Circuit's en banc panel a bunch of cowards who are going to reverse him. He's saying what he thinks, and the public should know what he thinks. It's not as if he's not going to think it because he doesn't say it, right? Like Prof. Volokh, I suspect the "gag" rule that Pregerson broke isn't justified. It seems designed mainly to promote the myth that federal judges are disinterested, non-ideological, publicity-hating, almost non-human scholars impartially divining and obeying "the law." Pregerson's comments give a clearer picture of the reality. ... 3:03 A.M.

Free Weintraub! An item posted by estimable Sacramento Bee blogger Daniel Weintraub annoyed the state legislature's Latino caucus, which "protested in a letter to Bee Publisher Janis Besler Heaphy," according to this Bee ombudsman report. The upshot? The Bee courageously stood up for its employee, noting that he hadn't gotten any facts wrong and was simply giving his opinions? ... No. That's not what happened. The Bee apparently caved, according to the ombudsman:

The Bee has instituted some reforms. Weintraub's blog now goes to the editorial page editor or his deputy before it's posted on sacbee.com.

So now readers of Weintraub's blog are not getting his unfiltered, up-to-the-moment thoughts. They're getting the thoughts that are approved by an editor--an editor who is now well aware of how sensitive the Bee is to complaints from powerful constituencies. ... Or some powerful constituencies, at least. A kf emailer writes: "If Arnold had complained, do you suppose the Bee would have strapped an editor on DW's back?" ..P.S.: Even if the Bee's move is just for show--to placate the Latino caucus with a procedural reform--and even if the editors involved have privately assured Weintraub they won't change a thing, it will have an inevitable degrading effect on Weintraub's blog. The whole point of blogging is that you get someone's take right now, when it can make a difference. What if Weintraub has a good idea at 7:30 P.M. and the editors have gone home? By the time they come back in the next day to "review" his idea, history may have moved on--the idea will be stale, even if it might have actually made a difference if it had been posted in time. ... But I actually doubt the editorial approval process will be completely benign. Read the ombudsman's pompous report ("no newspaper should publish an analysis without an editor's review") and you can see an edge-dulling, anti-controversialist mindset at work that is inimical to sound and well-established blogging practices.  ... As long as nobody's libeled, why not publish analyses without an editor's review? If an editor (or a reader, or another blogger) comes back with a good objection, Weintraub can get another item out of it! ... If Weintraub's too much of an anti-liberal blogger, add a liberal blogger! Don't supress them both under a smothering blanket of bureaucratic timidity! [Calm down!-ed. ]...

Update: The blogosphere responds as one with horror and outrage. See Hewitt (who had it first); Instapundit; Tagorda; Simon  (who's fatalistic); Welch; Fresh Potatoes (who, like many others, gives the Bee ombudsman's email address); xrlq;  Pathetic Earthlings; Boifromtroi (who has a "Free Weintraub" logo);  breaker; and Prestopundit. It's a damn Web posse! ... Holdout: Calblog  ... 1:03 P.M.

Al Gore may have invented the Internet, but Arnold Schwarzenegger invented the Hummer--the civilian version, anyway. Or so he says [on O'Reilly ] ...

I'm very proud of the Hummer, because I created that industry. I went to the Hummer factory and said we should make this Hummer not only a military car but a civilian car. [Emph. added]

Egomania aside, I actually think Schwarzenegger may be telling the truth about this. P.S.: Schwarzenegger quickly added "Now we have to find ways how to create alternative, you know, fuel for them." ... Update: Thomas "MinuteMan" Maguire emails to note that Schwarzenegger's claim is supported here, here, and here. At least it's a story several reporters have bought over the years. ...More: Arnold skeptic Hesiod Theogeny comes up with even stronger evidence  of Schwarzenegger's role, and concludes (in an e-mail): "Arnold deserves credit for seeing its potential, but it's hard to know whether or not he actually suggested that they should market it, or just wanted one for himself." ...12:01 P.M.

Saturday, September 20, 2003

Earnest exclamation points?  They're all ironic. Honest! 2:20 A.M.

Friday, September 19, 2003

Howard Bashman and my brother Steve (a lawyer) agree: The anti-delay side has won the Ninth Circuit en banc lottery  in the big California recall case. Bashman says it's "as conservative an en banc panel as one is likely to see from the Ninth Circuit."... Upshot: It's highly likely the very liberal three-judge panel that postponed the election will be reversed, and the recall election will go ahead as scheduled on October 7. ... Sorry, Prof. Hasen! ... Jake Tapper, you can come back to California now. [Presumptuous? Maybe the judges don't like to be so predictable--ed. They're not journalists. They're judges. And the three-judge panel's vindication of "fundamental and cherished liberties" did not exactly open to glowing reviews, even from the usual friends of liberal activism. The L.A. Times denounced it. Former Ninth Circuit clerk Dahlia Lithwick ridiculed it. Election officials throughout the state  predicted a debaclefor which the Ninth Circuit would be held responsible. The relative unreliability of punch-card ballots, on which the three-judge decision rests, has been credibly questioned. Even Gray Davis now wants to "get it over with."   If I'm wrong I'll cross out the ink!] P.S.: The en banc panel could still screw Cruz Bustamante by moving Propositions 53 and 54 to the March ballot while leaving the recall vote on October 7 (a possibility first suggested by Daniel Weiner). That would deprive Bustamante of an easy way to launder the Indian gaming millions he's currently spending under the guise of fighting Prop. 54. ... If this happens, the net result of the ACLU's self-righteous, trendsurfing, myopic litigation will have been to a) rob Davis of his best week in the press and b) strip Bustamante of his money. Good work by attorney Mark Rosenbaum! I may send them a contribution. ... [Many links via Weintraub]  7:07 P.M.

HRC-VP? John Ellis writes a very sharp insider's column in the process of reaching what seems a strained conclusion: that General Wesley Clark is part of an Anybody But Dean movement designed by the Clintons to install Hillary as Vice President. Why would Hillary exchange a solid chance for the #1 job (in 2008, which would be put in jeopardy if Clark/Clinton gets clobbered in 2004) in exchange for an iffy shot at the #2 job? And think of all the power-behind-the-throne stories that would attend a Clark/Clinton pairing. You'd think Hillary would have had enough of Lady Macbeth. ... Still, Ellis's piece is valuable for his concise analysis of primary mechanics, fleshing out the Note-like theme that

a presidential campaign isn't about delegates, it's about media coverage.

P.S.: When Ellis writes that there is "not enough time," given the compressed primary schedule, to organize an A.B.D. movement after New Hampshire, is he forgetting the Feiler Faster Thesis?P.P.S.: Where's the wackily-compelling-yet-wrong Dick Morris column explaining exactly which Hillary conspiracy Clarks' candidacy furthers? Did I miss it? P.P.P.S.:  One more thing--why do so many HIllary conspiracy stories assume she can't run for president in 2012 when she's 65? I'm sure she'd rather run in 2008. But what's wrong with 65? It's the new 50! .... Hey, here's a complete obsessive-paranoid insider's too-clever-by-half theory that doesn't come from an insider at all but from a suggestion by alert kf reader J.B.: After New Hampshire, it's too late to file candidacy papers in many early Democratic primaries. But Clark could function as Hillary's surrogate vote-collector, pledging to throw his delegates to her at the convention. Clark's candidacy today thus enables a Hillary A.B.D. late entry in 2004 despite the "front-loaded" primary schedule. ... This has to be tomorrow's Morris column. Get it today at kf! ... [Link via Instapundit] Update: Apparently the rationale for Hillary-as-VP is that it will "scrub" her for 2008--get out all the potential unfavorable stories and scandals and make them "old news." (Doesn't sound like much fun for General Clark.) ... 1:04 P.M.

Thursday, September 18, 2003

You can vote. But first, what's your race? The estimable Jill Stewart reviews the ill-advised legislation the two-house Democratic majority in Sacramento seems to be spewing out. My nominee for the worst:

AB 587, by Mark Ridley-Thomas. A box asking your skin color will now go on voter registration forms. It's voluntary---but expect a move next to make it required.

Stewart reports that Governor Davis "signed this creepy law Wednesday." ... P.S.: On the other hand, the wild Democratic move to subject all development to review by a Native American Heritage Commission (in order to protect "sacred sites") appears to have been stalled, for now. ...  4:29 P.M.

Lost Tribes: A casino-addicted California Indian tribe will run ads in support of conservative Tom McClintock. Similar tribal gambling support has so tainted Democrat Cruz Bustamante that his negative ratings have doubled and his chances of becoming governor have been severely diminished. ... The tribes are considered Machiavellian on the theory that they're only buying ads that support McClintock in order to undercut his fellow Republican Arnold Schwarzenegger. If they were really Machiavellian, though, they'd start buying ads that support Schwarzenegger. He might never recover. ... 3:08 P.M.

Lefties for the Recall I: L.A. Weekly's leftish-pro-Arnold correspondent William Bradley says a March recall might not be such a godsend for Governor Davis:

Davis gets a chance for the initial wave of recall anger to subside. And his slight uptick in support, which is very slight, increases. But he suffers a backlash from angry moderate and conservative voters who become just as likely to vote as liberal Democrats turning out for their allegedly interesting presidential primary, which has so far engaged only enthusiasts of the little-known candidates. And he has to face the electorate in the midst of the latest budget crisis, a likely referendum on the highly unpopular bill allowing driver's licenses for illegal immigrants, and after months of car tax increases. So the deeper dynamics of the recall may well continue no matter when the election takes place.

Wishful thinking? Only time will tell! ... Actually, let's hope it doesn't tell and the recall gets put back on schedule. ... P.S.: Bradley piles on the hapless LAT poll, quoting a "senior Democratic strategist with close ties to Governor Davis" saying "The L.A. Times poll is not correct ... " Times Poll Director Susan Pinkus--where are you? ... 3:45 A.M.

Lefties for the Recall II: L.A. Weekly's Marc Cooper demonstrates that nobody can bash the Democratic party establishment more effectively than someone to its left, demolishing MoveOn.org's anti-recall dogma.  ... Cooper also gets in some solid shots at hack supporters of the three-judge panel:

Why, according to our Democrat friends, was blocking the Florida recount supposedly a "coup"? But short-circuiting an entire election with the same legal criteria isn't? Answer: because this time the heavy-handed court intervention benefits Democrats!

And until this week's court ruling, some Democrat activists were claiming that computerized electronic voter machines — which the court now favors over punch cards — were prone to right-wing Republican fraud. Now, poof! These same machines are guarantees of civil rights.

3:48 A.M.

Wednesday, September 17, 2003

Blogging election law prof Rick Hasen, who by taking Bush v. Gore seriously helped get us into the current Ninth Circuit recall mess, now recognizes the wisdom of the quick-election-with-paper-ballots solution. (See the second-to last paragraph of his latest Ninth Circuit filing.) ... Note to Prof. Hasen: If it's such a good idea, why not let the Ninth Circuit appellate court spell it out in an en banc opinion? Why do we have to take the risk of the campaign-until-March debacle that you've helped bring about?.... 4:29 P.M.

No Justice, No Paez II: Here's a kf item from 2000 on Richard Paez, one of the three judges who postponed the recall. When he was nominated by President Clinton, Republican senators accused him, not without evidence, of being a liberal activist. Democrats denied it and played the ethnic Latino card. Senate Judiciary chairman Orrin Hatch said he finally approved Paez, a fellow Mormon, after Paez promised to "abide by the rule of law and not engage in judicial activism." ... It now looks like a) Senator Hatch is a cheap date! b) the Republicans had a point in trying to block Paez, and c) the ACLU didn't just luck out when it came to the composition of the three-judge panel that postponed the recall--it hit the jackpot. Recall proponents' chances with an 11-member en banc court have to be better, if this Clare Cooper assessment of all 26 "active" Ninth Circuit judges is to be believed ... 1:40 P.M.

Attention, Ninth Circuit Clerks! Excellent  Bruce Ackerman op-ed  noting two big differences between the California recall and Bush v. Gore. ... Here's a third: In Bush v. Gore, the U.S. Supreme Court was confronted with a state court ruling that allowed, not different voting systems in different counties, but two completely different recounting systems within a single county--Miami-Dade. (See "One County, Two Systems: The Decision's Fatal Flaw")  ... Worse, one of the systems was obviously more permissive. It actually looked at "overvotes" as well as "undervotes." The other was obviously more restrictive, only looking at undervotes. ... Even worse, the permissive system was applied almost solely to the Democratic precincts and the restrictive system was applied almost solely to Republican precincts. All of these factors might trigger Equal Protection worries, but they don't afflict the California recall. ...

Why is it different when the different treatment is within a county? Because counties are the jurisdictions that decide which voting system to use. The systems aren't imposed on them. If a county chooses a punch-card system that loses 1.34 percent of the vote, it has in a sense democratically chosen to dilute its own vote a little bit. And as long as counties run elections, some differences between counties are inevitable. It's much more troubling when officials within the decisionmaking jurisdiction choose different systems for different parts of their domain--for different parts of town, in effect. Then the possibility of favoritism, partisanship, or racism, or other invidious ulterior motive is much harder to dismiss, as is the possibility of a parallel invidious effect. That was the situation in Miami-Dade in Florida in 2000. It's not the situation in California in 2003. ... Update: Einer Elhauge makes a similar argument, and includes some useful Bush v. Gore pull-quotes. ... 5:56 A.M.

Does the NYT read its own charts? Unlike the L.A. Times, the New York Times reflexively applauded the Ninth Circuit 3-judge panel's decision to postpone the California recall vote. The NYT denounced as "unacceptable" the "mass disenfranchisement" that happens when

"[voters] in the counties stuck with punch cards are far more likely than other Californians to have their ballots thrown out."

But the NYT itself, on the bottom of page A-19, prints a chart showing that punch cards have a lower rate of "invalid votes" than touch-screen voting systems--one of the "new" systems California counties are required to replace punch cards with under the Ninth Circuit's rulings. True, the punch cards do slightly worse for top-of-the-ballot races (a 2.5% rate of "invalid votes" versus a 2.3% rate). But they do significantly better on down-ballot races (4.7% invalid rate versus a 5.9% rate). ... Was it the three hour time difference--or those deceptive pro-Davis polls--that allowed the LAT editors to come to their senses before following NYT ed-page editor Gail Collins off the cliff of maniacal Equal Protectionism? ...

P.S.: Note that the category "invalid votes" includes ballots with no votes at all. A non-vote might not be a miscounted vote, but rather an intentional and legitimate decision to leave that choice blank. These intentional abstentions are especially likely in down-ballot races. But suppose one voting system, rather than miscounting voters more often, somehow encouraged voters to voluntarily leave a choice blank. Maybe the electronic scan system reminds voters of the scandalous contract the Davis administration signed with Oracle, and they throw up their hands in disgust! More generally, maybe choosing on optically scanning machines is just fun--like a fill-in coloring book--while choosing on punch card machines just seems more of a hassle, so voters get grouchy and intentionally abstain. On other computerized systems, some voters might worry that somehow the machine could crash if they vote on too many questions. Heck, if you changed the machine's color it would probably produce a measurable change in the voluntary abstention rate.  After all, when it comes to this sort of reaction, corporations pay billions to consultants to measure differences of a few tenths of a percent, which is what we're talking about here. Maybe slightly fewer motorists choose to gas up at Shell because the stations are a garish, off-putting yellow. Shell wants to know that. ...

Would this sort of discrepancy in consumer reaction to different voting systems, as it were, also be the basis for an Equal Protection challenge--even though in all cases the voting systems were accurately registering the voters' genuine preferences. (It's the actual preferences that differ, in reaction to the environment of the different voting systems.) ...

If the answer is "no," aren't these charts, and the studies that produce them, relatively useless--because no court can know what portion of the differential "invalid vote" rate measures miscounts (where the voter intended to vote but it didn't register) and what portion reflects accurate count of voters' differential tendency on different systems to abstain. ...

N.B.: The three-judge Ninth Circuit decision, which relies on the very Caltech/M.I.T.study reflected in the Times chart, conveniently omitsdiscussion of the error-rate of the electronic touch screens. It contrasts the punch cards only with "optical scan" machines. ... The three-judge panel also appears to address the abstention question, raised above, by noting that "given the many control variables" in the study "to which the pattern of disparity [in invalid votes] is resistant" it is likely that the disparity is not "completely attributable to voter intent to abstain or overvote, rather than the use of different voting machines." But if you read that passage carefully, you realize the judges are claiming only that the study rules out the possibility that voters of different races, ages, and classes--or in different elections and technological eras--have a diffferent abstention rate. What the study doesn't seem to rule out--what I don't think it could rule out--is the possibility that differential abstention rates were produced by "the use of different voting machines" itself--i.e., that all voters voting punch cards just tend to intentionally abstain more than voters using optical scanning equipment, perhaps because voting on the latter is more fun. ... 3:56 A.M.

Monday, September 15, 2003

Has the Ninth Circuit 3-judge panel inadvertently screwed Gray Davis the same way the Florida Supreme Court inadvertently screwed Al Gore? ... In Florida, remember, the state Supreme Court's ruling--ostensibly siding with Gore--managed to deprive him of adequate time for either a pre-certification recount or a post-certification recount. ... In California, the three-judge panel's ruling has interrupted the Davis campaign just when it seemed to be getting some traction in its effort to overcome the recall's lead. If the panel is overturned next week, and the election goes ahead on October 7, there will be just enough time for Schwarzenegger to seize momentum back with a solid debate performance on September 24. Davis will have lost the intervening week of favorable post-Clinton-visit press. ... P.S.: The court also helped Schwarzenegger directly by distracting attention from his strange comment on Oprah that he was merely trying to get publicity during the 1970s

"when I was saying things like 'a pump is better than coming.'"

And what was he trying to do during Oprah? Annoy some more McClintock Republicans? Annoy his handlers? Appeal to wild and crazy anti-moralistic California Democrats and moderates? Appeal to what he condescendingly supposed were sex-obsessed Oprah-watching women? ... P.P.S.: You mean a pump isn't better than coming? I just spent $300 to join Joe Gold's gym. ...  3:10 P.M.

Kausfiles Plugs the Holes! The Boston Globe'sBrian McGrory publishes a solid bid  to win the Why-Is-John-Kerry-So-Loathsome? Mystery Challenge. Kf eagerly awaits  Chris Lehane's entry. ...McGrory notes--and he's got an Example--that Kerry's a man of ostentatious principle until the exact moment the principle threatens his ambition. ... Are better politicians more principled or just less transparent (and less impatient) when it comes to reversing themselves? Good question. But either way ... P.S.: Watching Kerry thrash, flip-flop, and nuance his way to humiliating primary defeat will be one of the few pleasures of the upcoming presidential campaign. ...2:51 P.M.

Weintraub finds the buried lede in the LAT story  on the postponement of the recall to March. It turns out L.A. County officials say the new voting machines they are supposed to have in place by then can't handle both the recall and the primary election.

"It's more than a wrinkle," said Los Angeles County Registrar-Recorder Conny McCormack. "No one even asked the largest county in the state if we had the capacity to run it in March. The answer is no."

One--only one--of the problems of government-by-judiciary is that judges think they know all the relevant facts just from reading the briefs of the parties in the case. But they don't. ...

P.S.: How dumb were the LAT's editors to let Weintraub, who used to work for them, go to another paper? ... Update: See also this Volokh post  (and this one) on why relying on the new untested machines might be a bigger disaster than using the punch card system that has been used for years. (The Ninth Circuit three-judge panel, remember, pompously declared there was "no rational basis"  for sticking with the old system. That's clearly wrong.) ... Fairness moment:LAT defenders note the paper did publish a separate story, albeit on page A-18, about the difficulty of handling both the primary and recall elections in March. The Times also editorialized against the mess  the next day. ...2:19 P.M.

Field Poll Blasts Times Poll: The people who run the Field Poll not only think the L.A. Times poll (showing Davis on the verge of beating the recall) is full of it, they think the L.A. Times' defensive explanation  for why its poll is different is also full of it! And they make a powerful case. 

The LAT's David Lauter had attempted to explain the difference by noting that Field had more "moderates" while the Times poll had more self-identified "liberals" and "conservatives." But Field notes that you can't compare these two numbers--the polls use different questions to classify people ideologically, and if you'd asked the Field questions to the Times' sample you might well have gotten lots of moderates too. ...

The real difference, Field argues, is that the LAT for some reason seems to have wildly oversampled non-white non-Latinos--i.e. blacks and Asians. Blacks are the most reliable recall opponents, and they seem to have driven the poll resulst in Davis' favor. The Times hides this flaw by failing to even report the black and Asian subgroups separately.

Why did the size of the unreported racial/ethnic subgroups in the latest Times Poll amount to 18%, when according to its own exit poll, blacks and Asian voters combined comprised just 10% of all voters in the last general election? Did the Times Poll sample include a proportionate number of black/African-Americans or a disproportionately large number whose inclusion, due to their strong opposition to the recall, could have skewed their poll results?

It's probably not the Asians who were lopsidedly anti-recall, Field notes, since they "historically tend to be more divided in their voting preferences on partisan matters."

This is a pretty convincing indictment.  It resonates with the suspicion--hard to believe, but always present with the PC Times--that the results were somehow intentionally skewed. I would think the LAT would have to respond. ... While they are at it, they might reveal to their readers Mystery Questions 3 and 4--the questions, right before the crucial recall question, that the Times pollsters for some reason skip over in their published report. Maybe these are harmless "likely voter" screens--but why shouldn't Times readers learn about them too? You've got to be transparent if people are suspicious of you, no?

The beauty part is that many recall opponents--including perhaps the Times own editorial board--seem to have actually believed the polls suggestion that Davis was about to beat the recall, and as a result they are hostile to the Ninth Circuit's postponement of the election.   So the Ninth Circuit faces opposition from both recall proponents, who think they were about to win, and opponents, who (foolishly believing the LAT poll) think they were about to win. Both groups can't be right, of course--it's a zero-sum game. But their mutually-contradictory confidence can make it very uncomfortable for any Ninth Circuit 11-judge "en banc" panel that reconsiders the decision to postpone the election. ... P.S.: If you don't think appellate courts pay attention to editorials and other indicators of the public mood, you haven't clerked on an appellate court. ... 1:23 P.M.

There's an obvious potential solution to the California election crisis, a voting technology that's easy to use, leaves a permanent record, and can be deployed quickly in all counties. ... Paper ballots!  ... They work in the United Kingdom. So they take a while to count. That's better for California than having a nightmarish campaign until March.  ... [Thanks to reader J.B.] 3:30 P.M.

The Ninth Circuit three-judge appeals panel has delayed the recall election. ...   We knew that!  ... Appeals to the entire Ninth Circuit en banc and to the U.S. Supreme Court, are presumably to come. ... For background on the issues, here's a good Recorder account of the appellate arguments, and here is pro-delay expert Rick Hasen's blog  (and here's his amicus brief). Here's an anti-delay op-ed  by Debra Saunders.  ... Here's an anecdote from the Recorder's account that pretty much captures the seemingly condescending, museum-quality paleoliberal mindset of at least one of the three judges on the appelate panel:

[Judge Harry] Pregerson then playfully pointed out that education [in how to avoid punch card errors] might not work on tired workers, or workers harried by trying to find their polling place. Then he said those problems might be more of a concern to minority candidates who may have more reason to be tired at the end of the day than whites.

"In L.A., if you look around, see who's working and who isn't," Pregerson said, drawing laughter from the near-capacity courtroom.

I think Pregerson probably meant minority voters, not "candidates." Either way. ..

P.S.: There are problems with punch card ballots. But there are also problems with some of the new voting technologies that would replace them. Are we delaying an election in order to replace one flawed system with another? Here's Rick Hasen's answer:

Whether the new techologies could create equal protection problems of their own is a separate question that may itself have to be litigated some time.

Wow! So we delay the next election too! Hasen's theory seems like a way to let the ACLU tie up democracy in the courts for years. Gray Davis Forever! ...  Why let counties decide which voting system to buy if any difference in error rates between different voting systems--and there will always be some difference, enough of a difference to have decided the dead-heat 2000 election in Florida--is going to be the basis for a righteous Equal Protection claim? If that's the case, the Constitution would seem to require uniform statewide purchases (and maintenance!) of voting machines. ...

P.P.S.: In part, the Ninth Circuit decision seems another example of the nefarious effect of the practice of "consent decrees." Apparently the previous California Secretary of State, upon being sued, entered into such a "consent" agreement under which he agreed punch cards were unacceptable, and agreed to phase them out by the March 2004 election. Now his successor as Secretary of State is prevented (by his agreement to that consent decree) from arguing that punch card ballots are OK. But somehow the ACLU is not barred by its seeming acceptance, in the same deal, that elections between now and March 2004 might involve the use of punch cards. ... As Debra Saunders points out, Gray Davis was re-elected in 2002 in a contest in which some counties used punch card ballots. Why was that system OK then but not OK now? Hasen's answer, which is better than his answer on the problems of new voting technologies, is that this election will be closer and more confusing, with 135 candidates. ...

P.P.P.S.: If I were the U.S. Supreme Court, I would be very reluctant to reverse the Ninth Circuit and thus cement a reputation as an unprincipled partisan court that upholds obscure Equal Protection arguments when they throw an election to Republicans (as in Bush v. Gore) but strikes them down when they would throw the election to the Democrats. This suggests that the pro-recall forces' best hope is a rehearing bythe entire Ninth Circuit sitting en banc, not an appeal to SCOTUS. ...

P.P.P.P.S.: Just how many more votes are lost in punch card systems versus other technologies? 1.34 percent of the votes cast, according to the ACLU's expert. And that's before any special voter education efforts that might be made. ...

P.P.P.P.P.S.: One possible outcome on appeal--the vote will be postponed, but not all the way to March, if the punch card machines can be replaced before then. Even the ACLU's brief allows for this possibility. ... Crazy thought: Why not eliminate the disparity between counties by making all the counties use punch cards, if that's faster? ... 10:56 A.M.

Too good to check: An emailer claims that at a recent "town hall" meeting Arnold Schwarzenegger offered this explanation for why his mother, worried about her son's odd body-building hobby, took him to the family doctor:

"We don't have shrinks in Austria, like you do in America."

4:10 A.M.

This is his supporters' argument: My favorite paragraph of the L.A. Times' front page piece on why "many voters" are deciding the recall is "unfair to Davis."

For many recall opponents, the vote should not be taken as a referendum on Davis' record. Many agree with recall backers that Davis bungled California's electricity crisis, spent the state into a $38-billion budget hole and devoted himself more to fund-raising than to governance. Their point: It doesn't matter. [Emph. added]

For others, it does! ... See also Weintraub, who points out that Bill Clinton's argument against recalls--that they would discourage governors from taking bold actions that anger voters in the short term but be good for the state in the long term--doesn't apply to Davis. He's accused precisely of not taking that sort of action. ... P.P.S.: Weintraub argues that Clinton's implicit analogy of the recall with federal impeachment (which is accepted by the Times) has no historical basis.

"When the voters a very long time ago put the recall in the constitution of California," Clinton said, "it was supposed to be triggered in extreme cases, when you had someone who was corrupt and just would not go, or someone who was physically or mentally incapacitated. Neither is the case here."

But that's not why the recall was put into the constitution. It was put there to give the voters the ability to remove a state officer for any reason, and specifically for dissatisfaction with his or her performance in office. For corruption we have impeachment. [Emph. added]

3:05 A.M.

Up is bad. Down is bad. What's productivity to do? I'm quite willing to believe that "most economists predict that unemployment will remain almost unchanged  at nearly 6 percent through the elections in November 2004." But shouldn't the NYT, after making this surprising assertion at the top of its lede business story, produce some actual evidence that most economists think this? Evidence like a survey of economists, or a blue-chip weighting--or at least quotes or views from a plural number of economists who make such a prediction? All the Times's Edmund Andrews gives us is a) his say-so and b) economist Brad DeLong. DeLong's quote:

I don't see where the demand is going to come from to produce a falling unemployment rate. ... Very few people are predicting real G.D.P. growth of more than 4 percent."

But even DeLong's argument is immediately undercut by Andrews himself, who writes, "More than a few economists say that the economy might expand at an annual rate of more than 5 percent in the final half of this year." [Emph. added] ... In case DeLong misinterprets the above: I'm not saying unemployment won't stay up near 6 per cent. (I've been wrong about unemployment before.) I'm not saying most economists don't predict unemployment will stay up near 6 percent. I'm saying the Times doesn't offer much, beyond blind faith in Edmund Andrews, to convince non-economists like me of either of these things. ... P.S.: I'd even argue the Times has a special burden in this regard because it has such an obvious institutional commitment to continued economic malaise. But I doubt Andrews' story meets even normal standards of evidence. ... Update: Gloouis Uchitelle states the full underlying NYT breakdown theory, in which rapidly rising productivity is bad because it means fewer workers are needed to meet a given level of demand. I can see that. But Uchitelle loses me when he switches to arguing that it's also bad if productivity fails to rise rapidly. Up-bad. Down-bad. Capitalism can't win with this guy. Do "most economists" agree? ... More: Even DeLong is unhappy with the NYT's reportorial laziness  in a companion story to Andrews'. ... Second Day Update: Alert reader S.M. sends A   hot-off-the-press AP story with some of the evidence Andrews could have used--"a panel of 35 professional forecasters" from the National Association of Business Economics" who predict robustt 4 to 4.5 percent growth but think

the unemployment rate would still be around 5.8 percent at the end of 2004.

The panel apparently considers this an upbeat end to the "jobless" aspect of the so-called "jobless recovery." It's just a very slow end. ... 1:47 A.M.

Sunday, September 14, 2003

Kf traveled to the LAXMarriott Saturday to survey the distinguished hacks covering the GOP state convention. Hack consensus: Nobody believes the latest LAT poll, at least on the "recall Davis" question, where the Times shows a virtual tie. Other polls, apparently including private ones taken by Democratic interest groups trying to replicate the Times poll, show Davis in significantly worse shape. ... But there's disagreement on why the Times is full of it. 1) Some say the LAT sample included too many liberals. 2) Others say it included too many conservatives, citing McClintock's relatively strong showing. (Why would these conservatives vote against the recall? Because they were spooked by the previous widely-disbelieved Times poll showing Democrat Cruz Bustamante well ahead of Arnold Schwarzenegger! They'd rather keep Davis than get Cruz. That's the theory, anyway.) 3) Others (including kf mystery pollster "M") say the difference is probably the filter for "likely" voters and that the Times results will converge with other polls as Election Day nears (when likely voterhood becomes easier to measure). ... The Times' same-day defense of its own poll somewhat bizarrely adopts both explanations (1)and (2)--the Times had lots of liberals and lots of conservatives but fewer moderates! The paper rejects explanation (3), however. ... P.S.: Some sympathy was expressed for the poor LAT reporters who for reasons of institutional pride have to write their stories pretending that their paper's poll reflects actual reality. ... 10:13 P.M.

Weintraub picks up a contradiction in the van Lohuizen memo (see preceding item) that I missed: Schwarzengger's pollster says the "days when we could count on 20% or more of registered Democrats crossing over are long gone"-- and then he says Arnold will get "up to 20%" of the Democratic vote. "So which is it?" Weintraub asks. ... Were the Schwarzeneggerians lowballing their candidate's crossover appeal in the attempt to panic McClintock out of the race? Not necessarily. Both the Field and LAT polls show Schwarzenegger getting only 10 percent of Democratic votes. ... 7:18 P.M.

Friday, September 12, 2003

B reaking Recall News: I had thought the "pressure-on-conservative-Tom-McClintock-to-get-out" story line was overdone and premature, with the California recall election 25 long days away. But tonight, Friday, the night before the state Republican convention in Los Angeles, Team Arnold has sent out what would seem to be a slightly panicky pollster's memo to "interested reporters," saying essentially (if I read it right) that Schwarzenegger will probably lose unless McClintock gets out.

The analysis, by Jan van Lohuizen of Voter/Consumer Research, is contained in an email from the Schwarzenegger campaign's Darrel Ng. It notes (and I'm quoting mainly the slightly panicky, negative bits):

 ... we continue to find that Democratic crossover voting is minimal.  To the extent that Democrats do cross over, it is to Arnold; but there are only so many crossover votes to be had.  Keep in mind that both in the Lungren and in the Simon elections more than 85% of registered Democrats voted for Davis.  The days that we could count on 20% or more of registered Democrats crossing over are long gone. ... [snip]


5.  A thorough analysis of the data so far show that Bustamante's share of the votes cast by registered Democrats is extremely unlikely to go below 60% and could go as high as 70%.  The remaining 30% to 40% will vote for Arnold (up to 20%), vote for one of the candidates to the left of Bustamante (10% to 15%) or not vote at all in the election to replace (up to 5%).

Simple back of the envelope math shows that under these circumstances it is vital to maximize the share of Republicans voting for Arnold.  Even under the most optimistic turnout scenarios Democrats will cast more ballots than Republicans.  With more Democrats showing up at the polls and Bustamante getting a greater share of Democratic votes cast than Arnold getting of Republican votes cast, is a clear prescription for losing our best shot at winning the Governorship. ... [Emph. added.]

On the other hand, van Lohuizen says:

The back of the envelope math is very different when McClintock withdraws.  We would get well over 80% of votes cast by Republicans, 15 to 20% of votes cast by Democrats and up to 40% of votes cast by independents.   This works out to roughly 48% of all votes cast.  I don't see any reasonable scenario under which we lose if this happens.

Perhaps Schwarzenegger is spooked by the start of absentee voting, or worried about debating McClintock, or worried about ongoing scandal damage--otherwise, you'd think the best GOP strategy would be to let McClintock run his campaign, rally his troops and then, at some date much closer to the election, give a rousing speech tossing his support to Schwarzenegger. (See Weintraub.) ... P.S.: Or does Schwarzenegger want to get McClintock out before the Ninth Circuit delays the whole damn election, which could happen next week? [link via Hasen ]... P.P.S.: Not only does sending the memo make Schwarzenegger look slightly desperate--if McClintock now doesn't get out this weekend it makes McClintock seem the victor and Schwarzenegger look ineffectual. ... P.P.P.S.: Should sending out the van Lohuizen memo prove to be a mistake, Schwarzenegger consultant Mike Murphy can always make it clear to reporters afterwards  that he never liked the idea. ... 1:04 A.M.

When Peckers Attack: The American Media tabloid empire has finally run an Arnold Schwarzenegger/Maria Shriver expose, and it reveals ... brace yourself ... "Why their marriage works"! Among the shocking National Examiner revelations that have turned the historic California recall race upside down:

Asked by a fellow parishioner at St. Monica's Catholic Church in Santa Monica, Calif. why she's always smiling, Maria answered: "It's Arnold. He keeps me laughing."

An "insider" discloses that while they may seem really tight as a couple and as a family and as buddies:

They are really tight as a couple, as a family and as buddies. Whenever you see them, they're holding hands, laughing into each other's eyes ...

Also, in a bizarre cult-like ritual, every day they tell each other 'I love you'!

I withdraw any previous suggestion or innuendo that American Media CEO David Pecker has taken a dive on Arnold in this campaign. ...12:49 A.M.

Background noise: What's the big deal about that Arnold Schwarzenegger chimney-toppling scandalette? It's ancient history! I mean, it's not as if Schwarzenegger is running ads actually touting his experience as a bricklayer. ... Oh, wait!  ... Update: Charismatic Schwarzenegger consultant Mike Murphy today dismissed the chimney incident as "background noise." ... P.S.: If Schwarzenegger loses, which lucky reporter will get the candid interview with Murphy where  he denigrates his former client  and makes himself look like a hero? ... 4:36 P.M.

How did Democrat Gray Davis pull almost even in the most recent L.A. Times recall poll while Democrat Cruz Bustamante somehow lost ground? 1) One explanation is that the LAT poll is wacky. Nobody seemed to believe the last Times poll, which had Bustamante 13 points ahead, and the most recent Field Poll shows the recall winning handily by 15 points rather than mired in a near-tie. One of the polls is wrong. 2) A second explanation is that Democratic voters were planning to recall Davis and replace him with that nice Latino fellow Bustamante--but now that they're learning more about Bustamante they don't much like him, so they're sticking with Davis. Bustamante's LAT poll "negatives" have risen dramatically ... What's not to like about Bustamante? William Bradley reports he really is as dumb as he's cracked up to be, echoing Weintraub. (You'd almost think they drove to that Bustamante rally together! ... Or that Weintraub was reporting on questions Bradley asked! .. What's that you say? ...) John Fund  piles on, describing for out-of-staters the role of Bustamante's puppetmaster, consultant Richie Ross. ...P.S.: Bradley also comes up with a novel, but not entirely crazy, rationale for Schwarzenegger's decision to take money from Republican interests: He has to take their money to control them! (And to prevent others from taking their money and challenging him.) It's all about "governance"! ... A "top Republican strategist" tells Bradley:

[Schwarzenegger] needs to have some control over the Republican Party, especially if he is going to bring it into the 21st century. Popular appeal is not enough; he needs a handle on the party's resource base.

But how is Arnold going to keep these interests on board unless he actually delivers for them? Can he con them into thinking they need to buy a piece of him when really it does them no good at all? Isn't that a sort of consumer fraud? Schwarzenegger's home-repair experience may come in handy here. ... 3:36 P.M.

The Lurleen Factor: One of the mysteries of Arnold Schwarzenegger's run is why a man with his ego would want to give up a life of global fame for a nerve-wracking job haggling with cowtown hacks in unglamorous Sacramento--when as a foreign-born citizen he can't even use the governorship as the basis for a presidential run, thanks to Article II, Section 1 of the Constitution. (It says the President "shall be a natural born citizen" and Schwarzenegger was born in Austria.)

For Californians, myself included, who might be willing to take the risk of installing this untested performer in office, Article II's constitutional bar acts as a sort of security blanket. It's not as if we're loosing another Reagan on the nation--the worst that can happen is one state gets messed up. (And, you know, out here we can always recall the guy.) Article II also makes tacitly backing Schwarzenegger less risky for the Bush White House--it's not as if they'd be creating a rival for Jeb in 2008.

But maybe it's time to question the assumption that Scwarzenegger could never win the White House. Why? Not because I think the Constitution is about to be amended in some sort of  "You get Schwarzenegger, we get Granholm" bargain. I'm thinking more of Lurleen Wallace, wife of Alabama governor George Wallace. When her husband was barred from succeeding himself in 1966, according to what appears to be an official Alabama history:

George announced the candidacy of his wife Lurleen for governor. The couple admitted frankly that if Lurleen was elected, George would continue to make the administrative policies and decisions. Mrs. Wallace won the May Democratic primary with 54 percent of the vote which assured her election in November.

Lurleen Wallace died of cancer in 1968, turning the governorship over to the state's Lieutenant Governor.  But her candidacy offers a model that remains unaccountably unexploited in American politics. Until, maybe, now.

Is it crazy to imagine that, if a) Arnold Schwarzenegger wins the governorship and b) his term in office is perceived as successful, then c) his wife, Maria Shriver, would run for president, with the understanding that her husband would actually "make the administrative policies and decisions"--or most of them, anyway? No constitutional amendment necessary.

It's not as if Maria, daughter of the 1972 Democratic vice-presidential candidate, isn't a political figure in her own right. Here's the lede of Joan Ryan's S.F. Chronicle profile of Mrs. Schwarzenegger:

Ask Bobby Shriver how his sister came to the decision that, yes, her husband should run for governor, and he says you've got it wrong.

"She didn't come to it," he said by phone the other day. "Arnold came to it."

Even if, as we're told, Maria only reluctantly went along with her husband's desire to run, that doesn't mean she's not loving the campaign now, or won't come to like it. It doesn't mean that, if in 2006 they are completing a successful stint in Sacramento and wondering what to do next, the Lurleen precedent--or some two-for-the-price-of-one, vote-for-the-team variation--won't recommend itself. Are you sure Maria Shriver wouldn't want to be co-president?

Of course, there are a few complications. She's a Democrat, for one. That makes the Schwarzenshriver ticket potentially more appealing--but it also would make it somewhat difficult to win the Republican nomination. So they run as Democrats, or more likely as Ross Perot-style independents--which is Schwarzenegger's natural route to power anyway.

I'm not saying this is a likely scenario. I'm saying it's a potential scenario. It's a potential scenario even if the idea hasn't occurred to them yet. It's a potential scenario even if they deny it now. For that reason, it's a potential scenario California voters need to take into account. As the national attention given to Schwarzenegger's run suggests, we may not be just voting on a governor here. Whatever Article II says.  12:50 P.M.

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