Cross-Over Voting…

Michael Moore indicates all his friends in his native Michigan are voting in the Republican primary today for...Rick Santorum.

Any registered voter, independent, Democrat, or Republican, can vote in the Republican primary in Michigan (though not in AZ).

This has led to “strategic voting.” And Romney is complaining. It’s a close race and Romney doesn’t want to lose because of Santorum’s Democratic “support.” Statistical analyzes indicate as much as 10% of the votes in Michigan’s race might come from Independents and Democrats. Of these votes, as much as one-half would likely be cast for Santorum. In second place, with about one-fifth, is Ron Paul.

While Romney began complaining quite loudly on MI Primary Day about the unfairness of cross-over voting, Santorum correctly noted he didn’t complain in New Hampshire when he was the one benefitting from cross-over votes.

This is very much what upsets a growing number of voters, and Americans generally: the way these candidates for President change principles like they change ties. Sometimes, as with ties, they seem to wear none at all…

Of course, one can also complain of the lack of principle shown by the voters themselves if they engage in “strategic voting.” Michael Moore’s friends are voting for Santorum not because they like Santorum or what he stands for--no doubt they loathe him--but because they think, rightly or wrongly, that Obama can more easily best Santorum than Romney in November.

And here we get to the meat of the issue, overlooked so far by media reports on this topic. There is a MAJOR difference between Democrats and Independents crossing over in Michigan to vote for different GOP candidates.

The vast majority of Democrats voting in the GOP primary for Santorum are voting as a strategy. The vast majority of Democrats and Independents voting in the GOP primary for Paul are voting as a principle.

What’s the difference? The Democrats voting in Michigan on 2/28/12 for Santorum have no intention of voting for him in November. They are strict Obama voters. The Democrats and Independents voting in Michigan on 2/28/12 for Paul mostly want to vote for Paul in November. They are NOT strict Obama voters.

So one sad tale the Michigan primary vote tells is that even as we are burying ourselves under mountains of debt, as we look at Greece and reasonably wonder if we’re next, more people are still willing to vote strategically rather than on principle. And when you think about it, that’s not a very good strategy in the long run...

DOMA, the GOP, and the Constitution...

In the heat of the Republican primaries, it’s no surprise that DOMA, the Defense of Marriage Act, is once again coming to the fore. Marriage, it seems, is such a weak and vapid institution that only a Constitutional amendment defining marriage as between one man and one woman will save it, according to both front runners in Florida, former House Speaker Newt Gingrich and former defender-of-gay-rights-while-Massachusetts-Governor-but-not-now Mitt Romney, who increasingly sounds like a line from a Whitman poem[1]…

Ron Paul, defending federalism over liberty on this issue, says that decisions on legalizing or prohibiting gay marriage should be left to states. This is not acceptable to that great conservative Rick Santorum who, like Gingrich and Romney, are eager to amend the Constitution of the United States before the demographics change and gay marriage becomes a done deal. In response to Paul, Santorum, in defiance of reality, says, "We can't have 50 marriage laws." 

Earth to Santorum: We DO have 50 different marriage laws, differing in such matters as what constitutes a common law marriage; the age of consent to marry, with and without parental consent; whether or not premarital medical exams are required, and if so the scope of the exam and the maximum allowable period between the exam and the subsequent marriage; the length, if any, of the waiting period between obtaining a marriage license and the marriage ceremony; the duration of validity of the marriage license before expiration; how marital assets are handled, among many, many other differences. Though no doubt shocking to Santorum--how did this guy pass the bar?--both the Republic and the institution of marriage have so far survived all these variations in marriage laws. (For God’s sake, DON’T anyone tell him marriage laws differ internationally. This is one man who doesn’t need another reason to start bombing other countries…)

From a libertarian perspective, all of these candidates are wrong, though admittedly Paul comes closest to being correct. The larger mistake regarding DOMA, however, belongs to Speaker of the House Boehner. Almost a year ago now (2/23/11), the Speaker became upset that the President, through his Attorney General and Department of Justice, announced their unwillingness to defend the legality/constitutionality of the Defense of Marriage Act passed by Congress in 1996. 

Some background here: For many years, through many administrations of both R and D stripe, the Justice Department has always proceeded on the assumption that, until the Supreme Court says otherwise, anything passed by Congress is constitutional and thus worthy of Department of Justice defense in court. This “Presumption of Constitutionality” was challenged last year by the Obama administration, refusing to defend DOMA in court against numerous judicial challenges.

On the practical side, this was a not unreasonable choice by Attorney General Holder, as DOMA has not done well in court. It is read by the court, not unreasonably, as prima facie designed to achieve an unwarranted disparate impact on the citizenry, and therefore suspect.

Also on the practical side, Boehner then and the Republican Presidential hopefuls now are foolish going to the wall to defend DOMA. Not only will they likely lose, but in the process they will turn off many independents who switched sides between 2008 and 2010 to give them the House, and may, if sufficiently turned off by Republican church dogma, switch back again in 2012.

But more importantly, this was one of those rare situations where the Obama administration is in the right. And this executive interpretation will be a helpful precedent the next time someone favoring limited government sits in the Oval Office (granted, a description no candidate save Paul falls under in this race).

Both Congress and the President swear to uphold the Constitution. The question then arises, how can one seriously attempt to uphold the Constitution if one refuses to hazard a guess as to what it means? Does Boehner seriously believe that “upholding the Constitution” is identical to “upholding whatever rulings the Supreme Court hands down?” If he doesn’t believe this—and his position on Roe v Wade certainly implies he doesn’t—then he must believe the Supreme Court is not the only source of constitutional interpretation. So what we have here is a difference of opinion between some members of Congress and the President on the constitutionality of DOMA. 

This is not a rare occurrence. The current Congress and the President also disagree on the constitutionality of the Obamacare legislation. The Supreme Court will rule at the end of the current session. If Obama and Biden suddenly died, and Boehner, as Speaker, assumed the Presidency, would he really feel compelled as President to say, “Well, I don’t believe in the constitutionality of Obamacare but of course I will defend Obamacare to the best of my ability in front of the Supreme Court.” Doing that would imply that an oath to defend the Constitution includes defending things one truly and strongly believes to be unconstitutional.

To think otherwise is to misunderstand the Founders’ concept of the division of powers. Giving the Supreme Court supreme judicial power doesn’t mean no other branch of government has a role in determining constitutionality. If Congress doesn’t think a bill is constitutional, it doesn’t pass it into law, so it never reaches the Supreme Court. If Congress thinks a former Congress passed an unconstitutional law, it repeals it. It doesn’t claim that the presumption of constitutionality requires waiting for the Supreme Court to rule. Similarly, if a bill reaches the President’s desk that he believes is unconstitutional, he doesn’t sign it into law. He doesn’t say, “Well, Congress thinks this is Constitutional; who am I to judge such things?” Conservatives rightly castigated President Bush II when he signed the McCain-Feingold bill into law even while explicitly saying he thought parts of it were unconstitutional. 

Just as signing bills into law, or refusing to do so, is part of the President’s executive powers, so is the way he chooses to run the Justice Department. Every government department, even today, has a finite budget. Decisions regarding priorities have to be made. If the President thinks the scarce resources of the Justice Department’s budget are not well spent by defending DOMA, why should Congress object? Surely using resources to defend a law one believes unconstitutional is a low priority use of funds. If the Justice Department indicated it didn’t feel it worthwhile to defend certain OSHA or environmental regulations, Republicans would rejoice. 

Former generations understood this. Laws do not enforce themselves. When the Supreme Court ruled on the rights of native Americans in a way that Andrew Jackson opposed, he said, “The Supreme Court has ruled. Now let them enforce their ruling.” Jackson is now considered retrograde for his position on the Indians, but his position on the law not enforcing itself withstands the test of time. Does anyone seriously believe that if the Supreme Court in the 1960s had determined the war in Vietnam was unconstitutional the troops would have been immediately withdrawn?

Everyone agrees the President has the power of the pardon. A blanket pardon for anyone incarcerated for violating certain laws—be it anti-war protestors during the Vietnam era or those politically prosecuted under the infamous Palmer laws of WWI; be it drunks thrown in prison during Prohibition or abolitionists violating Fugitive Slave laws—is well within the President’s authority. Would Boehner say this, too, is a violation of the will of Congress, a violation of the Presumption of Constitutionality toward anything Congress spews out?

Won’t this lead to anarchy? Not at all. It will lead to a divided, and thus limited, government. How are our freedoms maintained and protected? By restricting the rules that bind our actions. Therefore, it is right that a rule, to have societal impact, must be so correct, and so clearly agreed to, that not only can it get passed into law by Congress but it can also get enforced by the President and approved by the Supreme Court. DOMA got passed by Congress but federal courts routinely oppose it and it will likely not survive a Supreme Court ruling. Nor can it get enforced by the current administration. This is how the Founders conceived of things. 

No one should be surprised to find that in the months leading up to the repeal of Prohibition, the Justice Department did not work quite as hard as it had previously to enforce Prohibition, just as soldiers don’t risk all in the final hours before a peace treaty is signed. No one wants to be the last person to die in a war.

Boehner and the Republicans should be happy with this result. First it is the essence of limited government. Second, it allows a President more devoted than Obama to limited government to carefully pick and choose which laws he is willing to defend in front of the Supreme Court. 

But when it comes to the shameful stands the GOP Presidential candidates take on marriage equality, the best their supporters can say is, “don’t ask, don’t tell…”

------------

[1]: Song of Myself: “Do I contradict myself? Very well then I contradict myself, (I am large, I contain multitudes.)”

A Thought That Would Never Occur to Rick Santorum, Understandably...

 January 11, 2012

“This is a president who thinks he’s smarter than everybody,” Rick Santorum said today in South Carolina, criticizing President Obama for “trying to run people’s lives.”

Santorum, opposed to gay marriage equality, said HE would never try to run people’s lives.

Santorum, who seeks to strengthen the power of the State to throw hundreds of thousands of Americans into prison for using marijuana, said that unlike the sitting President, he believed people should run their own lives. 

Just according to Santorum’s rules...

Why Did Ron Paul Come in Third in Iowa?

With 99% of the caucus vote reported, Ron Paul came in third at 21% compared to 25% each for Mitt Romney and Rick Santorum. (At least, that’s how it’s being reported by most media; when you look at the actual numbers, that 25% each for Romney and Santorum is actually 24.5% each, and Paul’s 21% is really 21.4%. So he’s 3.1% behind them, not 4%. Funny, when I was in school we were taught that 24.5 percent is rounded to 24%; I guess times change.)

The big Iowa win of course belonged to Santorum, a religious conservative who curried the evangelical vote in Iowa and won with it much as Mike Huckabee did in 2008. Huckabee, of course, quickly lost ground in subsequent primaries. (Meanwhile, Santorum lost the vote of his nephew, who published an article explaining  why he’s supporting Ron Paul.) 

Ron Paul was in a tight race for first with Mitt Romney until only two days earlier. Of course, the difference in Paul and Santorum votes was less than 4,000 people, but still Paul’s last-minute drop needs analysis.

Here’s part of it. In 2008 at the national level the November Presidential vote broke down as follows for age: 

Per census data: Citizens 18-24 were the only age group increasing in turnout from 2004. Citizens between the ages of 45 to 64 saw their voting rates slightly decrease. Voting rates for citizens aged 25 to 44 and 65 years or older were statistically unchanged between 2004 and 2008. 2008 was the second straight presidential election year where young citizens significantly increased their voting rates. 

Obama did well among the 18-24 age voters, helping him win the general election. In Iowa, Paul polled first among 18-45 year olds. But looking at the voting distribution at the caucuses, only 31% of the voters were in the 18-45 age group. 68% were in the 45-older group. To the extent younger voters--who could easily vote for Paul over Obama in a general election but would never vote for Santorum over Obama--were under-represented in Iowa, Iowa downplays Paul’s strength, yet Paul still came in a close second after a tie for first. To put it another way: if the age distribution of the 2012 Iowa GOP vote was the same as the 2008 national vote, with nothing else changed, Paul would have come in first last night.

People are now asking whether Santorum has the organization, money, strength, etc. to win. These are the same questions asked of Mike Huckabee in 2008. He got 35% of the Iowa vote, yet he didn’t come close to winning. Neither will Santorum. This will become a two-man race: Romney and Paul. Fortunately, these are the two GOP candidates who do best against Obama. It’s turning, like 2010, into a choice between the GOP Establishment and the Tea Party.