Month: July 2020

A surging number of states and localities are thinking about adopting ranked-choice voting, an alternative approach to running an election that offers more room for independent and third-party candidates. This, in turn, has sparked a backlash from the defenders of the traditional system.

Come November, voters in Alaska, Massachusetts, and North Dakota, among other places, will decide whether to adopt ranked-choice voting, which allows voters to rank candidates on the ballot in order of preference instead of choosing just one. 

If a candidate gets an outright majority of first-preference votes, he or she wins. If no one gets a majority, the candidate who received the least number of first-preference votes is eliminated. The votes they received are transferred over to voters’ second preference. The process repeats until one candidate receives a majority of transferred votes. The process is also known as “instant runoff” voting, because it simulates a run-off election.

Proponents say that ranked-choice voting would increase representation and expand options for voters beyond the two main parties. The system is currently used in limited circumstances in 23 states, including for local elections, and primary races. Only Maine uses rank-choice voting for statewide elections.

Melodie Wilterdink of the Alaska Policy Forum, a conservative think tank, argues that ranked-choice voting “doesn’t allow everyone’s ballot to be counted.” If voters are asked to rank four candidates in an eight-candidate race, there is a chance all four candidates will be knocked out, resulting in “ballot exhaustion” and a discarded vote.

Last week the Alaska Policy Forum, alongside the Freedom Foundation of Minnesota, the Maine Policy Institute, and the Oklahoma Council for Public Affairs, formed the Protect My Ballot coalition to oppose ranked-choice voting.

Confusion about how the system works could suppress voter turnout even more, argues Wilterdink. In Maine, she notes, election officials had to print a 19-page instruction manual on how to vote. 

David Kimball, a political scientist at the University of Missouri–St. Louis, disagrees. When ranked-choice voting replaces a two-tiered primary and general election system, he finds, turnout increases by up to 10 percent because voters only have to show up to the polls once.

Kimball also says that ballot exhaustion doesn’t affect a large number of voters. “These are the people who prefer the least preferred candidates, so you’re generally talking relatively smaller percentages of voters,” he tells Reason.

Where ranked-choice voting is used today, the public largely approves of the method, though support has varied widely across jurisdictions.

Exit polling from local elections in North Carolina shows large majorities—68 percent in Cary and 67 percent in Hendersonville—prefer it to traditional voting. Data from Maine’s statewide races shows much narrower support, with approval largely following party lines: 81 percent of Democrats want to expand it while 72 percent of Republicans would eliminate it. (Other states, like Wilterdink’s native Alaska, don’t see a partisan divide: Both former Gov. Sean Parnell, a Republican, and former Sen. Mark Begich, a Democrat, oppose ranked-choice voting.)

That’s not to say that ranked-choice voting has been a success everywhere. As Protect My Ballot’s website notes, North Carolina; Aspen, Colorado; and Burlington, Vermont have repealed ranked-choice voting, often after just one election. Voters in Burlington, which ditched ranked-choice voting in 2010, will soon decide whether to reinstate the system.

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In his useful post on the Federalist Society, Josh Blackman notes

My general policy is to not sign any statement I do not write–that applies to letters and briefs. When you put your name on something that someone else wrote, you have limited input. You can’t request changes. There may be things you agree with, things you disagree with, and other things about which you are not certain. But putting your signature on a document requires you to accept everything, in toto.

My views on this have evolved a bit over time, but I find myself closer to Josh’s position than I once was.

As a citizen, I represent myself and my one little vote and voice in the American democracy. In collective actions, whether marching in the street, attending a rally, or signing a petition, my contribution as a citizen is to add numbers to a political effort in which numbers matter. If I sign a petition saying the Firefly should not have been cancelled, all I have to contribute is a number.

As an academic, my contribution is different. If I am asked to sign something that emphasizes my institutional affiliation or professional title, presumably the reason is because my expertise is supposed to matter in that context. But if what I’m offering is expertise, then the only thing I have to offer is my own considered opinion based on my own research and expertise. I’m not just backing a sentiment or contributing to numbers. I’m offering a reasoned argument and a conclusion based on reasoned argument.

I have not gone so far as to say that I will only sign the things I write. It is possible for someone else to write something I agree with, and as with any coauthoring relationship the result might be better if I do not write it all myself. But I have become much more reluctant to sign collective statements.

If I am going to sign on to something, the list of contributors has to be small. When the emphasis is just on gathering names, then the effect can be to water down my own contribution. If I have expertise to contribute to a public issue, it would seem to hurt rather than help the cause for me to join a letter signed by hundreds of others who have no credible claim to expertise on that issue. It is perfectly reasonable for me to be one of thousands of citizens signing a petition, but it makes little sense for me to be one of thousands of professors endorsing a statement.

If I am going to sign on to something, the subject matter has to be in my scholarly wheelhouse. I cannot in good faith add expert support for something about which I am not expert. If I am lending my scholarly credibility to something, I need to have scholarly credibility to lend. Readers are often in no position to judge whether the signers of a given letter all have relevant expertise, and so the burden is on me to not send false signals. There are lots of things I think are right, but I should be able to distinguish in my own mind whether I think something is right because I have a considered scholarly view on it or simply because I have an amateur opinion about it. I should not hold myself out as a scholar while giving my amateur opinion, and generally speaking in both cases I should be willing to explain my reasons and not just state my conclusion.

If I am going to sign on to something, I have to agree with everything in it. A letter or brief might not be exactly how I would have written it myself. There are compromises that must be made in every collective enterprise, but if I am asked to sign on to a thirteen point plan I have to be willing to own all thirteen points. The organizers of such efforts certainly expect the reader to think that everyone signing on to a letter endorses all its major claims. That’s the point of being able to wave around a faculty letter with hundreds of signatures. I would be misleading others if I signed something but had a private list of reservations. If I allow others to represent that I support something that I do not in fact support, then I am fostering a lie and polluting the public square.

If I am asked to sign on to something, I have to think carefully about whether the point is better made through a collective statement or through an elaborated individual argument. There are times when collective statements matter. If a claim is well outside the scholarly mainstream, it is useful for scholars to stand up as a group and say so. If a point is primarily a political one relevant to some collective of which I am a member, then I should stand with the group. But if the point is a contestable claim about which scholars of good faith and competence disagree, then I have a responsibility to not pretend like there is more consensus than there is and to explain why exactly I have reached this particular conclusion on this particular point. I should be trying to persuade and not just impress others with the weight of authority. My default assumption is to think that what I have to add to a public conversation is my considered opinion as a scholar with relevant expertise, and that is usually best conveyed in my own voice.

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In a recent New York Times op ed, prominent conservative legal scholar and Federalist Society co-founder Steve Calabresi called for Donald Trump to be impeached and removed from office, due to his recent tweet advocating postponement of the 2020 presidential election:

I have voted Republican in every presidential election since 1980, including voting for Donald Trump in 2016. I wrote op-eds and a law review article protesting what I believe was an unconstitutional investigation by Robert Mueller. I also wrote an op-ed opposing President Trump’s impeachment.

But I am frankly appalled by the president’s recent tweet seeking to postpone the November election. Until recently, I had taken as political hyperbole the Democrats’ assertion that President Trump is a fascist. But this latest tweet is fascistic and is itself grounds for the president’s immediate impeachment again by the House of Representatives and his removal from office by the Senate.

First, I am happy to welcome Steve to the club of conservative and libertarian legal scholars who believe Trump deserves to be impeached and removed from office—a group that already includes several Volokh Conspiracy bloggers, such as Jonathan Adler, David Post, and myself.

I agree with Steve that the Tweet is deeply troubling, and that the president has no authority to postpone the election. The latter is the virtual consensus view of constitutional law specialists. Co-blogger Michael Abramowicz has a good explanation of why.

At the same time, the tweet strikes me as a far less compelling justification for impeachment and removal than numerous previous actions by Trump. The Ukraine scandal (for which Trump was actually impeached, though eventually acquitted by the Senate) involved a serious attempt to usurp Congressional power, and a violation of federal criminal law. Trump’s brutal family separation policy was both illegal, and inflicted severe harm on thousands of innocent children and their families. More recently, Trump’s deployment of DHS forces to Portland and elsewhere is both a violation of constitutional limits on federal power, and undermines civil liberties by using CBP units known for their brutality and disdain for due process, which has predictably resulted in serious violations of constitutional rights.

The Tweet on postponing the election isn’t even Trump’s most reprehensible statement about the 2020 election itself. That dubious distinction goes to his earlier threat to illegally withhold federal funds from states that expand voting by mail. Unlike the postponement Tweet, that one actually threatened action. And the threat was made more credible by this administration’s ongoing pattern of attempting to usurp Congress’ spending power in order to coerce state and local governments into doing the president’s bidding. That  pattern is most evident in the administration’s campaign against sanctuary cities, which has been repeatedly ruled illegal by numerous federal court decisions.

All of these actions are more of a threat to the constitutional order than the postponement tweet. Several have already resulted in grave violations of the Constitution, and severe harm to innocent people. In my view (like that of most constitutional law scholars), impeachment is justified even in some cases where the president has abused his power without violating the law, and perhaps also in cases (like this one) where he has merely implicitly threatened to do so. But case for impeachment is much stronger when the president has in fact violated the Constitution (as in the Ukraine scandal, or has taken actions that inflict serious harm on innocent people (as with the family separation policy), or both (as with family separation and the DHS abuses in Portland).

If the election tweet were an isolated occurrence, I would be inclined to say that it does not justify impeachment, as it does not by itself violate the law, harm innocent people, or pose much of a threat to the constitutional system. But the better way to view it as part of a pattern of abuses of power and subversion of constitutional constraints on the president, which includes the actions listed above, and more besides. Seen in that light, the Tweet adds to the case for impeachment, though in my view there was already more than sufficient justification.

As a practical matter, of course, it is highly unlikely that Trump will be impeached again before the election, and even more unlikely the GOP-controlled Senate will vote to remove him. No law professor—not even one as influential and (deservedly) widely respected as Steve Calabresi is likely to change that political dynamic.

The real significance of Steve’s op ed is not that it will lead to a second Trump impeachment, but that it might influence the views of other conservative lawyers and intellectuals on Trump and his policies. If Trump is defeated in November, there will be a debate on the right about how much of Trump’s legacy should be retained, and how much jettisoned. Those of us who believe this administration’s ultra-expansive approach to executive power should be repudiated can use all the help we can get.

For the moment, of course, Steve Calabresi’s condemnation of the administration is focused on this one particular statement. But perhaps he will come to see that it is part of a broader pattern, that includes many far more troubling usurpations and abuses of power.

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Kyle Schwarber crushes a baseball towards centerfield. The crowd oohs, and the cheers grow louder as a Milwaukee Brewers’ outfielder watches the ball sail over his head. Fans in the bleachers stand to try to snag one of the season’s first home runs.

At least, that’s how it looked and sounded if you watched Sunday’s nationally televised game on FOX—and if you weren’t watching too closely. In the real world, the only cheers came from Schwarber’s Chicago Cub teammates, and no one was scrambling to catch the baseball as it thunked off the empty stands beyond the outfield wall.

Like all professional sporting events right now, the game was played behind closed doors. But viewers at home still got something vaguely akin to the “normal” experience. Simulated cheers and general background crowd noise have been edited into soccer matches by Fox, ESPN, and other networks during the pandemic too. But last weekend’s baseball games marked the debut of Fox’s use of “simulated fans” to make stadiums appear jam-packed even when they’re virtually empty.

No fans? Not on FOX Sports.

Thousands of virtual fans will attend FOX’s MLB games this Saturday. pic.twitter.com/z9oQU0rYuC

— FOX Sports (@FOXSports) July 23, 2020

In some ways, it’s a cool idea—one that the Miami Marlins probably wish they’d dreamed up years ago. Fox and Major League Baseball borrowed from video games, hired artificial reality programmers, and edited the whole thing together using a more advanced version of the computer that seamlessly draws the yellow line-to-gain on football fields during broadcasts. The Verge has a terrific deep dive into how it all works, if you’re curious.

But does it work? Not really.

Those simulated crowds are an attempt to embrace the idea that the return of pro sports to TV represents a return to normalcy. But the uncanny valley that Fox and MLB have created serves mostly to reinforce just how weird, how abnormal, things are right now. That’s not helped by the fact that the fake fans only show up in certain shots. (Fox programmed four of its camera angles to include them.) Even if the simulation were convincing, TV viewers would be left feeling like they were whipsawing between two different realities.

A NO-DOUBTER by Kyle Schwarber ???? pic.twitter.com/Sezm5kYOoc

— FOX Sports: MLB (@MLBONFOX) July 25, 2020

It’s also not helped by the stories that have surrounded baseball in the week since the Washington Nationals and New York Yankees belatedly opened the season. Within days, 20 of the Marlins’ players had tested positive for COVID-19 and another outbreak popped up in the Philadelphia Phillies’ organization. Both teams (and some of their would-have-been opponents) have been stuck in limbo since Monday. More than a dozen games have already been canceled. It’s still unclear when or if either of the affected teams will be cleared to resume games—or whether those players will be able to hit a major-league fastball after two weeks of being quarantined in hotel rooms.

On Friday, the St. Louis Cardinals canceled their scheduled game due to multiple positive tests. There’s been widespread speculation that the baseball season may have to be abandoned entirely.

Zoom out a little further and the picture gets worse. This week saw the 150,000th recorded American death due to COVID-19. We also got a better sense of the economic destruction that the disease and the response to it have wrought. It’s becoming apparent that most schools are not going to open on time. President Donald Trump is skylarking about delaying the election.

Good luck convincing anyone that things are returning to normal under those circumstances.

But the return of professional sports still matters, even in these somewhat bizarre forms. The National Basketball Association returned to action on Thursday night, and the National Hockey League will join the party this weekend. Both are hoping to finish seasons that were suspended in mid-March, and both have concocted expanded playoff tournaments with the goal of crowning champions by mid-October.

Unlike baseball, those two leagues are playing all their games in one or two locations—the NBA is in Orlando and the NHL is divided between Toronto and Edmonton. Creating “bubbles” means no travel will be necessary, and the leagues hope it will reduce the potential for the pandemic to disrupt seasons again. Whether it works remains to be seen.

Sports in the uncanny valley of fake fans, simulated crowd noise, and quarantine bubbles is better than no sports at all. Certainly, it is better for the players and coaches who can get back to doing what they love to do. And for fans, the explosion of televised sports is a rush of blood to the head. Soccer, golf, and tennis have been back for a few weeks now, but the sudden return of the major North American team sports is especially exciting.

But I could do without the digital mannequins in the bleachers.

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• Coroner. The CW. Thursday, August 5, 9 p.m.
• Hitmen. Available Friday, August 6, on the Peacock streaming service.

Fear not the dog days of August. (At least, on television. War with China and mass starvation are on somebody else’s beat.) TV is turning its multicultural eye to the comparative anthropology of criminal justice systems, and your brain cells will be aflame by the time it’s all over.

Though, I’ll confess, the more interesting thing on The CW’s Canadian import Coroner is dating culture on the great northern tundra. Here, for instance, is the introductory conversation between romantic leads Jenny and Liam: She explains that her husband, who died three months ago of an aneurysm, was a degenerate gambler who defaulted on two mortgages on their home and let his life insurance lapse, throwing the family into hopeless debt.

“So what about you?” she inquires brightly.

“I was in the army, in Afghanistan,” Liam replies. “I killed a bunch of people.”

Lascivious outdoor sex ensues, after which they examine one another’s old bullet-wound scars. You think I’m making this up. I soooo wish.

Coroner, which has already aired for two seasons in Canada, is part of the puzzling summer crop of reruns masquerading as new shows.  It’s the tale of crusading forensic pathologist Jenny (played by Canadian actress Serinda Swan, known mostly for looking a bit like the 1975ish incarnation of Tyne Daly.)

Her city Toronto having apparently already defunded its police department, Jenny has to solve every homicide, but that’s not as weighty a responsibility as it sounds because the criminals, like everybody else in Canada, are pretty nice. (When Jenny asks what one murdered reform-school inmate was in for, a prison social worker earnestly explains: “He was antifa. He was all about the future.”)

Curiously, Canada seems to have a continuing fascination with heroic pathologists. Coroner is at least the fourth show in the country’s TV history about a superstar coroner, going all the way back to Wojeck in 1966, notable mainly because it launched the career of Dean Vernon Wormer, errr, actor John Vernon, source of the immortal disciplinary decree, “No more fun of any kind!”

That’s an apt summation of Coroner, which aside from those bullet wounds on Jenny’s naked back is the very essence of Canadian tepidity. And when you watch TV’s newest British import, in which brains are splattered every few minutes for big laughs, it’s hard to believe these two countries were once part of the same imperial empire.

The Brit show—yes, it already aired there a few months back—is called Hitmen and airs on NBC’s new streaming service Peacock. It stars Mel Giedroyc and Sue Perkins as a pair of crabby, menopausal and quite inept professional killers.

As one chases down a fleeing victim, the other will inevitably be on the phone arguing with a credit card company or an overdemanding client. (“Torture isn’t really our thing. … It’s one thing killing somebody, but popping their tits in a laminator… .”) They often get tricked into hauling the victims to a McDonald’s drive-up window or birthday party or even playing charades with them before snuffing them. The humor is darker than a witch’s heart, most of it consisting of pranks played on people who are about to have their brains blown out.

Surprisingly, this gets old after about the first five minutes. Giedroyc and Perkins used to be the hosts of a Brit cooking-competition show called The Great British Bake Off. They probably should have stuck with that, but maybe experimented with cutting the throats of the contestants who messed up the scones.

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