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The Summer Doldrums Go To The Polls

Michael Bitzer

It’s the dog-days of a long, hot summer, and you reach for an ice cold glass of sweet tea — but imagine having only three percent of that tall eight ounces? Think sipping about 1.5 teaspoons will quench your thirst?

Better yet, what about taking a relaxing bath in only three percent of a normal bathtub?  You’d be soaking in only a little over two gallons of water.

Now imagine an election where only three percent of 6.1 million of North Carolina’s registered voters participated, and you get the full impact of our summer electoral doldrums.

While the official numbers won’t be certified for a few more days, the results from the second primary (runoff election) point to some interesting observations about an election that barely anyone showed up for.

Take, for example, the two hotly contested GOP battles for the 8th and 9th U.S. House races.  In the May primary for the 8th district, 66,883 voters cast ballots for the five-man race, with Richard Hudson scoring 32 percent to Scott Keadle’s 22 percent, bringing about the run-off.

In the second primary, only 16,708 voters cast their ballots in the bitter contest — or, only one-quarter of the previous electorate.

In the Pittenger-Pendergraph battle of the 9th, nearly 92,500 voters came to the polls in May, with Pittinger garnering 32 percent to Pendergraph’s 25 percent.

Flash forward several weeks later into the middle of July, and only 35,779 decided the 9th GOP contest, or 39 percent of the total May electorate.

In every county of the 8th and 9th — save one — all of the candidates received substantially lower votes than they did in May.  For example, Richard Hudson got 18 percent (158 votes) in Robeson County that he got in May (849 votes).

In fact, Robeson County saw only 271 votes cast in the run-off for the 8th, representing 11 percent of the total votes cast in the May primary. 

But in Rowan County, Hudson nearly doubled his first primary figures, going from 1,196 in May to 2,318 votes.

In the 9th, Mecklenburg County continued to be the powerhouse of voters in the new district, delivering 71 percent of the runoff votes cast.  But the 25,500 votes from the Great State of Meck was only 40 percent of what had been cast in the same contest in May.

Looking across the state, we find that the usual pattern of run-off victors holds, based on previous research: we would expect 70 percent of those who came in first, but were forced into a runoff, to ultimately win the nomination.

In this year’s fifteen runoff contests, only four races saw an upset in the runoff; 74 percent of the runoff races saw May’s first-place winner go on to secure the nomination in the run-off. 

For three state legislative races in the runoff election, the winners got an automatic bye to go straight to Raleigh, by-passing the November election. 

In state senate districts 12 (covering Harnett, Lee, and part of Johnston counties) and 41 (covering Mecklenburg), and house district 44 (covering Cumberland), the winners in the runoff election face no opposition in November, so they can start preparing for the 2013 session — barring something like a write-in candidacy in the fall.

Now that we have the final contestants for the fall campaign, when we hear folks complain about who they are going to vote for in the general election, you might want to remind them—“do you want ice with that three percent of tea?”

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Runoff Elections A Snoozer For Most Of Us

napping

For most North Carolinians, this time of the year is a time to focus on summer vacations, hitting the lake for some fishing, pool time, or just trying to stay cool. 

But for a few folks—and I mean a very few—their focus is on securing a spot on the November ballot in next week’s second primary election.

In the American electoral system, many elections are determined by the “first-past-the-post” system of winning. If the top-vote getter receives one more vote than the second-place candidate, the top vote-getter wins. 

So, in many states, a candidate who wins with a plurality (say, 35 percent of the vote) can secure their party’s nomination, even if a majority of votes are distributed among several other candidates.

In eight states, however, primary elections are subject to a runoff, with two other states (Kentucky and Vermont) providing for runoff elections for limited offices.

Unless a candidate receives a majority of the vote in a primary election in Alabama, Arkansas, Georgia, Mississippi, Oklahoma, South Carolina, or Texas, then a run-off election is conducted between the top two candidates.

In Louisiana, with its completely open primary system, if no candidate gets a majority votes, then the top two candidates—regardless of party affiliation—go to a run-off. In Louisiana, that’s the general election. If only one candidate meets the 50 percent threshold, the election is concluded. 

North Carolina is rather unique, though, in run-off elections (or what are termed second primaries).  Instead of a 50 percent pure majority requirement, the threshold for securing the nomination is a “substantial plurality,” equating to 40 percent of the vote plus one. 

In addition, a run-off is not automatically required unless the second highest vote getter calls for such an election. 

In some circles, it is believed that if the top-vote getter doesn’t secure the nomination in the first election, that candidate may be doomed in the second—especially if that candidate is the incumbent.

In research done on runoff elections, political scientists Charles Bullock and Loch Johnson of the University of Georgia found that to be a myth.

In North Carolina’s runoff system, the past few elections have partially confirmed some of Bullock and Johnson’s findings, but there are exceptions.

Going back to 2004’s primary season, three of the marque contests—two U.S. House districts and the Superintendent of Public Instruction—showed the second-place finisher in the first primary ended up winning the runoff.

In only one of the four state house and senate races did the second-place finisher in the first primary end up winning the run-off.

2004 Primaries with Runoffs

US House of Rep 5th District (Rep)

Foxx

Robinson

First Primary Results

22.9%

24.2%

Second Primary Results

54.6

45.4

 

 

 

US House of Rep 10th District (Rep)

McHenry

Huffman

First Primary Results

26.3

35.0

Second Primary Results

50.1

49.9

 

 

 

Superintendent of Public Instruction (Dem)

Atkinson

Stewart

First Primary Results

34.3

35.2

Second Primary Results

55.2

44.8

 

 

 

NC State Senate 3 (Dem)

Jenkins

Willingham

First Primary Results

33.1

32.8

Second Primary Results

54.5

45.5

 

 

 

NC State Senate 7 (Dem)

Berger

Moss

First Primary Results

36.7

19.7

Second Primary Results

51.2

48.8

 

 

 

NC State House 27 (Dem)

Wray

Henderson

First Primary Results

29.2

29.3

Second Primary Results

51.4

48.6

 

 

 

NC State House 67 (Rep)

Almond

Barbee

First Primary Results

39.8

37.9

Second Primary Results

65.0

35.0

North Carolina had three run-offs coming out of the 2008 first primary: Two Democratic races (commissioner of labor and state senate district 5) and one Republican race (state house district 67). 

In all three races, the top-vote getter in the first primary secured the nomination in the runoff.

2008 Primaries with Runoffs

Commissioner of Labor (Dem)

Donnan

Brooks

First Primary Results

27.5%

24.3%

Second Primary Results

67.9

32

 

 

 

NC State Senate 5 (Dem)

Davis

Taft

First Primary Results

35.8

24.1

Second Primary Results

62.7

37.2

 

 

 

NC State House 67 (Rep)

Burr

Furr

First Primary Results

37.4

32.8

Second Primary Results

58.3

41.6

In 2010, five state offices were contested in the second primary election. In three of these races, the top-vote recipient won the runoff (second primary) and the nomination, but in two races (both on the Republican side for the 8th and 12th congressional districts), the top-vote getter lost the runoff.

2010 Primaries with Runoffs

US Senate (Dem)

Marshall

Cunningham

First Primary Results

36.3%

27.2%

Second Primary Results

59.8

40

 

 

 

US House of Rep 8th District (Rep)

Johnson

D’Annunzio

First Primary Results

33

36.8

Second Primary Results

60.9

39

 

 

 

US House of Rep 12th District (Rep)

Dority

Cumbie

First Primary Results

34.3

39.4

Second Primary Results

51.7

48.2

 

 

 

US House of Rep 13th District (Rep)

Randall

Reeves

First Primary Results

32.5

31.8

Second Primary Results

58.9

41

 

 

 

NC State Senate 21 (Dem)

Mansfield

Crenshaw

First Primary Results

34.7

28.6

Second Primary Results

61.8

38.1

One other important point to make about runoff elections: with the first primary elections, we can see state-wide voter turnout anywhere from the mid-teens in 2010 to the mid-thirties in 2008 and 2012. 

With runoffs, voter turnout plummets: in 2008’s second primary elections, state-wide was 1.83 percent, while 2010’s second primary’s turnout was 4.5 percent, state-wide.

Granted, in local areas where the contests are most intense—like in the 8th and 9th Congressional districts surrounding Charlotte—we will most likely see a slightly higher turnout. But don’t bet on anything significant.

But most folks are more interested in going to the pool or casting a fishing road than casting ballots.

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GOP Legislature Hits Walk-Off Homer To Defeat Democrats

Michael Bitzer

Now that the North Carolina General Assembly session has ended, it appears that one thing is clear: The final inning of the session included three strikeouts for the Democrats and Governor Perdue. There were also an error and a couple of switch-hitters, all based on a significant GOP triple play.

The push came at the very end.

First, the most important piece of legislation that any state government confronts on a yearly basis is the budget.  With North Carolina’s biennum budget process, the baseline of the fiscal year 2012-2013 spending was actually set last year; typically, though, the Legislature and governor use the short session to make “tweaks” to the budget.

After formalizing a game plan, the GOP legislature sent the budget to the governor, who had vetoed the two-year version last year in a bruising battle that ended with her veto being overridden by the legislature.

With her pledge not to seek re-election and instead campaign for an increase in the sales tax to pay for education spending, Perdue wasn’t in a position to barter as she did last time.

Perdue entered this year’s game as a lame duck with miserable poll numbers weighing her down. As is the case in many sports, it is better to be on offense than defense. Perdue’s problem was that it seemed nobody wanted to be on her team in an election year.

Republicans in the state Senate had the necessary votes for their override, and it wasn’t surprising that the GOP-led House secured a number of Democrats to ensure their override of the governor’s veto.

What was surprising was what happened in that same day’s proceedings on two other critical items that the governor had stamped her “no” on — the revisions to the Racial Justice Act and beginning the process toward tapping into underground shale gas using hydraulic fracturing, otherwise known as “fracking.” 

The Racial Justice Act, passed by the 2009 Democratic-legislature, allows death row inmates to use statistics to argue that racial bias contributed to their sentences. Republicans were able to secure four Democrats who had voted for that original legislation (Reps. Brisson, Crawford, Hill, and Owens). 

Last week, the four voted to override Perdue’s veto of revisions to the Racial Justice Act. The new legislation reduces the use of statistics in challenging death sentences.

The final part of the triple play was the override of the “fracking” legislation on an unforced error by Democratic Representative Becky Carney of Charlotte, who mistakenly pushed “aye” to override the governor’s veto of the controversial natural gas drilling bill.

But in the game of politics, those who know the rules can win the game. When Rep. Carney sought to invoke Rule 24-c of the House, which says that a “member may change a vote” but only with the approval of the full House and if the change does not affect the final result, Republican majority leader Stam cut her off with a parliamentary move to lock in the win.

Her lone vote provided the required 60 percent needed to override a governor’s veto.  But she had help from other Democratic teammates, most notably three Democrats who did not cast votes on the original bill (Rep. Hamilton had an excused absence, while Reps. Brisson and Hill did not vote) but who did vote to override the governor’s veto.

Two other Democrats — Mecklenburg representatives Kelly Alexander and Rodney Moore — both voted for the original legislation and then for the override.

I’ll be reviewing more of the historic legislative session in the next few blog posts, but going into the long, hot summer season before the upcoming bruising fall campaign, Democrats can look with some optimism to their concluded season —their record wasn’t nearly as bad as the Charlotte Bobcats.

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Kissell Has Reason To Be Concerned

Larry Kissell

Word is out that the Black Leadership Caucus in North Carolina’s 8th Congressional District has decided to withhold its support for incumbent Democrat Larry Kissell. The group is citing his votes with the GOP to hold Attorney General Eric Holder in contempt, his intention to vote to repeal the Affordable Care Act, his plans to skip the DNC in Charlotte, and withholding his endorsement of President Obama.

Certainly Kissell has to consider himself one of the most vulnerable Democrats seeking re-election this fall.  Charlie Cook, a widely respected independent political analyst, has labeled the 8th Congressional District a “lean Republican” district, and one only needs to look at the 2010 and 2012 numbers to see why. 

In the 2010 election, Kissell was in a classic North Carolina swing district. But after Republicans took to their computers to redraw district lines, it became a much more Republican district:

 

8th Congressional District in 2010^

Redrawn 8th Congressional District in 2012*

% White Registered Voters

63%

69.2%

% Black Registered Voters

29.6%

17.8%

% Democratic Registered Voters

49.5%

45.8%

% Republican Registered Voters

27.6%

33%

% Unaffiliated Registered Voters

22.8%

20.9%

% Presidential vote winner in the district

52.5% for Obama

57.4% for McCain

^ from the North Carolina Free Enterprise Foundation’s Almanac of North Carolina Politics 2010 General Election Edition

* from the North Carolina General Assembly’s Redistricting Website

From just a “numbers” point of view, Kissell should be very concerned about his new district — and that means he needs to evaluate what his constituents want.

And the likelihood is that the constituents — especially the “new” constituents in the 8th  — would generally be more conservative, due to the significant loss of black voters (especially out of Charlotte and Fayetteville) and the increased presence of GOP voters from Rowan, Davidson, Randolph and Robeson counties.

One glaring statistic from those four counties: In the precincts added into the 8th from those counties, John McCain won 60 percent of the presidential vote.

For black voters left in Kissell’s new district, the reaction to the congressman’s recent moves is something that should have been expected.  From their point of view, why should they support a Democrat who appears more like a Republican?

While it shouldn’t be read that black voters in the 8th would vote for the eventual Republican running against Kissell, the pronouncement by black leaders in the district may convince some black voters to simply not work for his reelection. Or, worst yet, not show up at the polls for him.

And that can be the most devastating blowback against the incumbent Democrat. 

From Kissell’s point of view, getting re-elected may mean bucking the party line in order to appeal to the voters back in the district.

If Democrats expect to have any chance of regaining the majority in the U.S. House this fall, they not only have to win 25 seats currently held by Republicans, but keep districts like Kissell’s. 

One saving grace for Kissell may be the power of straight ticket voting, especially in early voting. One of the key strategies the 2008 Obama campaign took was to encourage black voters to cast their ballots early for the Democratic straight ticket. 

In 2008’s election, 1.2 million Democratic-registered voters across the state cast early ballots, and 46 percent of those Democratic ballots were from black voters.

In a twist of irony, Kissell could survive this fall if Obama’s grassroots organization can deliver the same early turnout as in 2008 and if black voters simply pull the “straight-ticket” lever.

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Health Care Ruling More Like A 4-1-4 Decision

U.S. Supreme Court Photo: Rosebennet/Flickr

In some of the best-known lines in constitutional law, Chief Justice John Marshall declared that it is…

“emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.”

Now that we have the U.S. Supreme Court’s decision on the Affordable Care Act (ACA), it is current Chief Justice John Roberts who has set his stamp on the court and his legacy as the leader of the judicial branch of our government.

But in doing so, when one reads the opinions in National Federation of Independent Business v. Sebelius, Roberts appears to be seeking a compromise of his own, but ultimately failed to make either side constitutionally happy.

In reading Robert’s nearly 60-page opinion, he lays out a surprising route towards upholding the ACA that took most commentators and scholars by surprise.

The main challenge against the ACA was that it violated the Commerce Clause of the U.S. Constitution, which grants Congress the power to “regulate commerce with foreign nations, and among the several states” (Article I, Section 8).

Since the New Deal and the revolution in government intervention in the economy, the High Court has generally deferred — but not always — to the use of interstate commerce as a way for the government to interact with the private sector.

For example, in what many thought would be a key case from the New Deal era, a farmer sued the government over a penalty for growing too much wheat, which he claimed he would use for only himself.  The Court, however, took the side of the government to declare that if he had used his own wheat, he would not have bought the wheat on the open market, and thus affected interstate commerce.

Another notable decision upholding the government’s interstate commerce power was during the modern civil rights movement. A Georgia barbeque restaurant challenged its right to serve only white customers. The court held that while most of the customers may have been local, the food served to the customers came across state lines, thus allowing the federal government to regulate.

A few recent cases — most notably on the issue of preventing guns in schools and making domestic violence against women a federal crime — restricted the federal government’s role in economic regulation.

And in the health care reform case, Chief Justice Roberts refuses to use the interstate commerce power to allow Congressional interaction, due to the fact that the core aspect of the law — the individual mandate — “does not regulate existing commercial activity.”

To allow Congress such power as to “regulate individuals precisely because they are doing nothing would open a new and potentially vast domain” of governmental power, something that neither Roberts nor other conservative justices would allow.

Roberts goes on to say that the commerce clause “is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions.” One would think that the full law would be struck down and the conservatives would be rejoicing, but then Roberts takes a different direction.

Roberts, joined by the liberals, instead uses Congress’ power to “lay and collect taxes, duties, imposts and excises” as a way to “encourage buying something,” such as purchasing homes and professional education.

The rationale behind the “tax” is that it “leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice.”

While Roberts received the votes of the four liberal justices, Justice Ruth Bader Ginsburg’s opinion appears more like a stinging dissent to the Chief rather than one in which she and her colleagues joined in upholding the law.

Ginsburg argued that the Commerce Clause did allow for Congress to regulate consumers’ behavior, and takes after Roberts for his “novel constraint” on the commerce power — even going as far as saying his argument had “multiple flaws,” “difficult to fathom,” his “analogy is inapt,” “accepts just such specious logic,” and “disserves future courts.”

She sums up her displeasure with the following:

“Why should THE CHIEF JUSTICE (all caps in original) strive so mightily to hem in Congress’ capacity to meet the new problems arising constantly in our ever-developing modern economy? I find no satisfying response to that question in his opinion.”

With friends like Ginsburg, I’m surprised that Roberts could have gotten the majority on the decision.

But in reading the dissenting joint opinion, signed by the three regular conservatives and the justice who is the typical swing vote — Kennedy — they proceed to blast the majority (i.e., the Chief’s) opinion:

“If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, ‘the hideous monster whose devouring jaws … spare neither sex nor age, nor high nor low, nor sacred nor profane.’”

The four dissenting justices then go to blast Justice Ginsburg’s arguments, most notably the principle that the Constitution outlines “not federally soluble problems, but federally available powers. … None of our cases say anything else. Article I contains no whatever-it-takes-to-solve-a-national-problem power.”

They also make not-so-suitable swipes at the end of their opinion, presumably against the chief justice: “The Court’s disposition, invented and atextual as it is, does not even have the merit of avoiding constitutional difficulties. It creates them.”

They go on to declare that:

“In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty.”

In the end of their opinion, they lay a broadside principled attack on the decision:

“The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.”

Many commentators have posited that this decision was a 5-4 one, but the way that I read it, is more like a 4-1-4 decision, with the liberals reluctantly joining Robert’s decision in order to uphold the ACA.

In fact, some reports are now surfacing that Roberts changed his mind and the course of the decision by voting to uphold the ACA as constitutional, in his own approach.

This would seem to fit with the style and writing of both Ginsburg’s and the conservatives’ opinions. In fact, I would not be surprised if Ginsburg’s opinion was originally a dissent and the conservatives’ opinion was the initial majority opinion.

This embittered decision shouldn’t, though, come to any surprise, because as many scholars have noted, the Supreme Court does tend to mirror the nation’s opinion. One day after the Court released its landmark ruling, Gallup Poll released a poll indicating a split of 46-46 in approving or disapproving of the Court’s decision.

Among the partisans, 79 percent of Democrats agreed with the decision, while 83 percent of Republicans disagreed, and independents split 45 percent agree to 42 percent disagreeing.

With the level of political polarization in the two elected branches of government, should we have been surprised when those in the judicial robes were so divided as well?

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Expect Polls To Hold Steady Through Summer

Michael Bitzer

In a recent Associated Press poll, one in four voters said that they were “uncommitted” to either President Obama or Mitt Romney at the mid-point of summer.

In the article, both campaigns recognized the dilemma that they face heading into the general campaign—which appears to have already started:

 

“Obama and Romney will spend huge amounts of time and money trying to win their votes, especially in the most competitive states that tend to swing between Republicans and Democrats each presidential election. Obama and Romney face the same hurdle, winning over wavering voters without alienating core supporters they need to canvass neighborhoods and staff telephone banks this fall to help make sure their backers actually vote.”

 
One question that is often raised is “when do voters make up their minds?”  In 2008, I looked at the exit poll question that asked voters “when did you finally decide for whom to vote for in the presidential election?” for both the national and North Carolina polls.

By the last month of the general campaign, three-quarters of voters nationally had made up their mind for whom they were going to vote for, with about 11 percent of national voters finally deciding a week before the election.

In comparing North Carolina voters and when they finally settled on a candidate, we see similar patterns in their timing as well: 78 percent of Tar Heel voters said that they had made up their mind on their presidential candidate prior to October, with just 10 percent deciding within the week of the election.

But as we know from other aspects of exit poll results, the timing of “who to vote for” may be impacted by how voters identify themselves politically. 

In breaking down those voters who identify as Democratic, Republican, or Independent, we see something that really isn’t surprising to most of us who study voter behavior: partisans have their minds made up much earlier than independents.

In 2008, nearly two-thirds of national Democrats and Republicans said they knew who they would vote for before September’s traditional kick-off to the general campaign.

Conversely, barely a majority of independents had their minds settled on their presidential candidate. 

Going into the last month of campaigning, three-quarters of partisan voters had their minds on their candidate, but nearly a third of independents where still deciding during the last critical month of campaigning.

In North Carolina, 71 percent of Democrats had made up their minds on their presidential candidate prior to September, while only 60 percent of Republicans had settled their choice.  This could have been tied to the general apathy that the GOP had to their party, especially with the low approval ratings of then President George W. Bush.

Among Tar Heel independents, nearly a quarter of them were still making their minds up coming into the final month of the campaign. 

 

What is interesting in comparing the AP poll to the rest of the field is that both Obama and Romney seem to be hovering around the mid-40s, according to Real Clear Politics poll averages. Unless there is some great movement among independents or some unknown event that will shift the electorate in the next few months, the election appears to be one of a distinct holding pattern until November.

But as I tell my students, an hour in politics can be an eternity — imagine what the next four months will feel like.

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Health Care Decision Adds Fuel To Campaigns

Michael Bitzer

I think the Supreme Court’s decision is certainly a legal and policy win for Obama, but it may be a bigger political win for Romney.  The decision is almost certainly going to inflame the Tea Party faction of the GOP, which is determined to repeal this decision, and if Romney can tap into that anger and harness it for November, he would certainly shore up any lingering conservative doubts about his candidacy. 

For Obama, he needs to energize and mobilize his own Democratic base and point to this as his signature success, while convincing liberals that he needs their support to stop Romney and the Tea Party from undoing the policy. 

In the end, the general election’s top issue will be the economy, jobs, and unemployment, but among hard-core party activists on both sides, this may provide more fuel for engaging in a hotly contested campaign coming up.

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