Blogging Break

Happy Holidays to all. Blogging will be irregular, possibly nonexistent, until January 5.

Oops

President Bush issued some pardons on December 23, but on December 24, he announced that he was revoking one of them that had caused some outcry and submitting it to his Pardon Attorney for further study. A Justice Department official stated that the President can pull back a pardon until it is delivered to the person who requested it. Is that right?

Amazingly enough, it seems that it is. In United States v. Wilson, 32 U.S. 150 (1833), the Supreme Court stated that "A pardon is a deed, to the validity of which, delivery is essential, and delivery is not complete, without acceptance." So the pardon must not only be delivered, but accepted by its subject, before it takes effect. The Court explained that pardons may be conditional, and the subject might prefer to reject the pardon rather than accept the conditions.

The case, and subsequent cases citing it, have been directed more to the question of whether the pardon must be accepted, than to whether it must be delivered, before being effective. Every now and then the subject of a pardon decides he'd rather not be pardoned. So the acceptance question comes up. It's tough to find a case in which the subject was happy to accept the pardon but the issue was whether the pardon had been delivered.

Still, Wilson says that the pardon must be delivered. So assuming that the President had signed the pardon, but that it had not been delivered, it would appear that he still has the power to pull it back. Kind of a silly rule -- it's hard to see what it can lead to besides the kind of embarrassment that's occurring right now. If the President wants to check whether a pardon would lead to a public outcry he could always announce a day or two in advance that he was thinking of pardoning somebody, and see what happens. Once the President signs the pardon, that should be it. But apparently it's not.

Yet More Minnesota Maneuvering

I had a chance to look at the decision of the Minnesota Supreme Court regarding the absentee ballot controversy. I have to say that the dissents seem to have the better of it.

Here's the deal: the county canvassing boards reported their vote totals to the State Canvassing Board, which is now in the process of resolving challenges to what happened at the county level. But one thing that's unclear is what's supposed to happen to ballots, particularly absentee ballots, that weren't counted at all at the county level. Apparently the theory of the Coleman campaign is that the State Canvassing Board can consider a challenge to the way a vote was counted, but cannot consider a challenge to the complete rejection of an absentee ballot that wasn't even opened at the county level. Such challenges can be heard, Coleman recognizes, but only, in his view, in a "contest" held in court after the State Canvassing Board certifies a winner.

It appears that hundreds of absentee ballots may have been rejected improperly at the county level. The State Canvassing Board instructed the county boards to segregate these ballots. But Coleman then asked the state Supreme Court to order that the ballots not be opened at this stage of the proceedings.

And here's what that court came up with: it order that the ballots not be opened and counted now unless the Coleman and Franken campaigns agree that a ballot was improperly rejected. If the candidates agree on that with regard to a ballot, it shall be opened and counted.

And what is the justification for this? Minnesota statute 204C.39 provides that "A county canvassing board may determine by majority vote that the election judges have made an obvious error in counting or recording the votes for an office. " This is the section that the court held to be inapplicable -- I guess the court believes that improperly rejecting and therefore improperly not even opening an absentee ballot cannot be an "obvious error in counting or recording the votes for an office." (It's hard to be sure what the court thinks because it hasn't written up its full opinion yet -- it just issued this order in a hurry.) I guess if you don't open the ballot at all, you haven't counted or recorded it, so the court thinks you can't have made an obvious counting or recording error. OK, that sounds like an unnecessarily restrictive reading (I would say that refusing to count a valid vote is a counting error), but let's give it to them.

But then why can the ballots be opened if the candidates agree they were improperly rejected? Section 204C.38 says that "If the candidates for an office unanimously agree in writing that the election judges in any precinct have made an obvious error in the counting or recording of the votes for that office, they shall deliver the agreement to the county auditor of that county who shall reconvene the county canvassing board, if necessary, and present the agreement to it. The county canvassing board shall correct the error as specified in the agreement."

But notice that the key phrase is essentially identical in the two sections: "obvious error in [the] counting or recording [of] the votes for [an, that] office." Improperly rejecting an absentee ballot and refusing to open it either can be, or cannot be, an "obvious error in counting or recording votes." I don't see how it can be one where the candidates agree but not if the candidates don't agree. It doesn't make sense. That's the point of the dissenting opinions.

Obviously the candidates will not have the right incentives to agree on ballots. Even where the objective indications are that a ballot was improperly rejected, each candidate will be inclined to agree to have it counted only if they think it will favor their side -- and it seems like they'll have a lot of data to guide them, like the voter's name and address (how can they agree on whether a ballot was obviously improperly rejected without seeing the outer envelope, which would have this information?). So it seems unlikely that an appropriate set of the ballots will get counted under this procedure.

Also, section 204C.38 refers to unanimous agreement among the "candidates for an office." So I don't see how agreement between Coleman and Franken can be enough to justify acting under this section -- there would also need to be agreement from the other three, lesser candidates, Barkley, Aldrich, and Niemackl.

The court also cited section 204B.44 in its ruling, but I can't see how that supports the rule the court imposed.

So there's another fine mess the courts have gotten into, trying to invent rules as they go along. I remember the same thing in Florida in 2000. The state Supreme Court's first decision didn't follow the applicable statutes but tried to make up a procedure that seemed sensible in light of the circumstances. Then by the time of the court's second decision, which followed the statutory procedures to the letter, people couldn't believe the court was acting honestly.

With the votes totals separated by a hair's breadth, every little procedural ruling counts for a lot. It doesn't seem like a good idea to count improperly rejected absentee ballots only in a court contest, and it certainly doesn't seem like a good idea to invent an ad hoc procedure for counting only some of them.

0.002%

Al Franken's lead in the Minnesota Senate race is 251 votes right now, but, according to informal counts, after the Minnesota State Canvassing Board accounts later today for vote challenges withdrawn by the two campaigns, Franken will still be ahead, but by just 48 votes. In case you're counting, 48 votes out of 2.4 million votes cast for the two main candidates is a lead of 0.002% -- that's 1/500 of 1%.

Moreover, today's meeting will not end the counting. Still to be resolved are claims by the Coleman campaign that some votes were accidentally counted twice, and how to deal with perhaps 1600 absentee ballots that may have been improperly rejected. There's a long way to go.

I remarked before that where the vote totals are separated by less than 1/100 of 1%, there just doesn't seem to be a way to determine the winner accurately. Obviously that observation applies all the more to vote totals separated by 1/500 of 1%. I'm ready to assume that all five members of the State Canvassing Board are acting in perfect good faith and doing their very best to count every vote with perfect honesty and accuracy. But after watching them squirrel through piles of ballots last week in a moment of confusion, I am hard pressed to believe that they are noting every decision and getting everything right, not just most of the time, but more than 99.998% of the time.

Normally, if people doing some kind of drudgework -- like counting vote after vote after vote -- made a mistake only one time in every 10,000, you'd probably think they were doing a great job. Counting 9,999 votes accurately and accidentally putting just one in the wrong pile seems like excellent work to me. But in this case, mistaking one vote out of every 10,000 would result in 240 incorrectly counted votes -- five times the margin of victory. Of course the mistakes might tend to cancel each other out (if they were random mistakes, that would often be the case), but if the mistakes were even slightly the result of a (possibly unconscious) bias in favor of one of the candidates, they could totally overwhelm the honest difference in the vote totals.

I'm not envying the Canvassing Board their jobs. And the worst of it is, even when they finish (if they ever do), there's still a potential court challenge and a potential Senate challenge.

Infighting Warrior

W. Mark Felt, better known as Deep Throat, the anonymous source behind the Washington Post's Watergate stories in the 1970s, died yesterday. We at GW Law School take special note. Felt graduated from GW Law School in 1940.

When Felt revealed his identity in 2005, the most interesting thing, I thought, was the reason behind his decision to inform. He didn't expressly say so, but it seemed to me that Felt acted partly out of patriotism and a sense that the President and his top aides were wrongdoers who deserved to be denounced, and partly as a tool of bureaucratic infighting. Felt was the No. 2 official at the FBI, and the President and the administration were, he believed, subverting the Bureau's investigations in the Watergate breakins. And there was possibly a touch of personal revenge: Felt had been passed over for the post of FBI Director in 1972.

It was a fascinating insight into how reporters do their work. Where do they get the anonymous sources for those blockbluster stories? The Deep Throat experience suggests that, whatever controversial policy the administration is pushing, whatever crime it's committing, there's somebody, somewhere on the inside, who doesn't like it and who would blow the whistle on it. A combination of noble desire to do the right thing, plus bureaucratic desire to win the policy war, plus perhaps a bit of personal desires as well, opens someone up. The reporter's job is to find that person.

MN Mayhem

I'm watching the live stream of the Minnesota State Canvassing Board recounting individual ballots. (I'd give you the link, but they'll be done by the time you click on it.) The Board is confused about whether they've resolved a challenge to a particular ballot already. Three members of the Board were just standing over piles of ballots, flipping them over and putting them in different piles. Now Coleman's attorney is arguing about whether they resolved the challenge yesterday or not. Now both attorneys are standing up with the Board watching them dig through piles of ballots.

How can this possibly all be done correctly? The Board's been running through challenges all day -- I watched a bit earlier -- and they do most of them in about 20 seconds or less, and the results are noted down somewhere, but now they're arguing about which challenges have been resolved, whether the results have been properly noted down, which notations are typos, and so on.

In a race that's currently separated by about 40 votes (as counted by the MN Star Tribune), it just seems impossible that they're going to resolve it accurately with all this chaotic counting going on. Even if all the challenges are accurately resolved, I don't see how they can accurately tabulate the results.

Judicial Restraint

The Illinois Supreme Court has denied the state Attorney General's request to remove Governor Rod Blagojevich from office on an emergency basis or to temporarily strip him of many of is powers. But the Court denied the requests "without comment" -- it hasn't even bothered to post the order on its own website (I suppose it might be up by the time you click) -- so it's a little hard to say what's really going on. It's not clear from the reporting whether the Court agreed with my analysis that it lacks power to remove the Governor for political or even criminal misdeeds (I'm sure this blog is highly influential in Illinois judicial circles) or whether the Court has merely denied the Attorney General's request for immediate relief, while retaining the potential for the case to move forward more slowly.

I'm guessing the Court doesn't want any part of the controversy. But if the Court thinks there's no legal basis for it to act in this kind of situation, it should say so.

Madoff Followup

A couple of fascinating articles on the Madoff fund implosion point out some really bad news for investors: if you were invested in the Madoff fund, but you smelled something fishy about it and sold your shares before the big fraud was revealed, you may be compelled to give back your profits. So even those who got out safely, didn't get out safely.

Why? Because bankruptcy law permits the bankruptcy trustee to "avoid" (i.e. get back) transfers of money that was transferred by the bankrupt party at a time when the party was insolvent if the bankrupt party did not receive reasonably equivalent value in exchange and the transfer was made to hinder, delay, or defraud any creditor. In a similar, recent case involving the Bayou Fund, a court held that every redemption (i.e. sale of shares) met these criteria: the fund's share price was, like the Madoff Fund's, imaginary -- the fund managers were just making it up to preserve the appearance of good returns. So when shareholders redeemed their money, the fund was transferring out more money than the value of the shares it was getting back. And the fund was insolvent. And the fund did this to preserve its big fraud. So the criteria for avoiding the transfer were met. The court held that an investor could defend against the claim for return of the money by showing that the redemption was made in "good faith" -- that the investor had no inkling anything was wrong with the fund -- but this was a defense, it would be up to the investor to show it, and it wouldn't apply if the investor saw some red flags before getting out.

One of the articles linked above states that there is no time limit on these avoidable transfers. That seems, based on my quick research, to be mistaken: the bankruptcy law section linked above sets a time limit of 2 years. But I'm not a bankruptcy expert and there could be some other section that looks back even further.

But certainly resolving the Madoff fund's problems is going to be a big, big mess for investors, even those who thought they'd gotten out.

To Catch a Thief

Now that Bernard Madoff has been arrested for pulling off a $50 billion Ponzi scheme, editorialists are naturally wondering what to do, and the Wall Street Journal is taking the opportunity to warn against using the incident as an excuse for more regulation. With the hard-nosed, clear-eyed thinking for which the free market's champions are famous, the WSJ tells us that "The reality is that it is impossible for the SEC or any regulator to prevent every financial fraud, just as it is impossible for city police to prevent every burglary." So I guess the message is that we should just accept that every now and then someone will steal $50 billion and not expect government to prevent it. The last thing we want is for "every enforcement failure [to] become an excuse for more enforcement."

Sorry, but what the WSJ analysis overlooks is that at least some smart people did detect the Madoff fraud. Aksia LLC, which advises clients about which hedge funds to invest in, warned against investing in Madoff as early as last year. How did they spot the potential fraud? As they recounted in a recent letter to their clients, they just did the basic due diligence. They noted many suspicious things: Madoff's vast fund was audited by a 3-person audit firm (and only one of the three employees seemed really active); the market in which Madoff traded was too small to support the huge sums he claimed to trade; he didn't have enough actual holdings; and so on. And with their suspicions heightened, the Aksia LLC people checked up: they actually visited Madoff's offices to check up on his vaunted technology, but found only paper tickets and no apparent electronic access to his holdings.

So it seems that what was really necessary to catch this thief was some due diligence. Not taking everything on faith, but actually checking up on some basic details.

Now, why couldn't the government have done that? The WSJ may be right that the SEC doesn't need any new enforcement powers as a result of this incident, but it sure does seem like we could use some more actual exercise of the powers the SEC already has. It seems like they were just asleep at the switch, doing a "heckuva job" doing nothing while the crisis was building. I don't know how related this is to the fundamental problems we've seen in the Bush Administration all along, but it does seem thematically related to the attitude that the government should mostly do nothing and let us all take care of ourselves, whether there's a real or an economic hurricane coming in.

A Shoe to Throw

What I enjoy about the stories about the Iraqi journalist who threw his shoes at President Bush is that they all take care to explain that "Throwing a shoe at someone is considered the worst possible insult in Iraq and is meant to show extreme disrespect and contempt" (Wash. Post) or "Hitting someone with a shoe is considered the supreme insult in Iraq." (NY Times). These explanations should be helpful to readers who imagined that in cultural context throwing the shoes was some kind of compliment ("You are so great that I give you my shoes!").

Really, though, it is interesting that a culture has such expressive gestures. What have we got? We have "not gesturing with all five fingers," as the President delicately put it, and there are even ruder hand gestures, but I can't think of anything as vivid. It seems we have a gesture gap.

A Leg to Grandstand On

OK, I did a little basic research (which I should have done before posting yesterday), and, what do you know, Illinois does have an unusual setup that gives at least some color to state Attorney General Lisa Madigan's request that the state Supreme Court remove the Governor from office.  But I still think there's an element of grandstanding about it.

Here's the skinny:  Section 6(d) of Illinois's state constitution does indeed provide that the state Supreme Court shall, as provided by state law, or under its own rules in the absence of such a law, have jurisdiction to determine whether the Governor should be removed from office because of "death, conviction on impeachment, failure to qualify, resignation, or other disability."  That's the provision that Attorney General Madigan cites in her extensive filing with the Illinois Supreme Court asking it to remove the Governor.

So Madigan does actually have a leg to stand on.  But I'm still thinking it's more like a leg to grandstand on.  Even Madigan admits in her filing that the history of the Illinois constitutional provision, as shown by an exchange at the Illinois constitutional convention, suggests that the term "disability" is limited, as one would most naturally expect, to a physical or mental disability that prevents the Governor from discharging the functions of his office.  She claims, however, that the "plain meaning" of the term encompasses anything, including a political problem, that prevents the Governor from serving effectively.

I'm sorry, I just don't buy it.  The fundamental problem is that a court is ill-equipped to make such a political judgment.  Sure, the current case seems pretty clear, but what about the fact that the Governor had a 13% approval rating even before the scandal broke?  Would we want a state court making a judgment about whether such a low approval rating was a "disability" that prevented the Governor from serving?  I don't think so.

The strong tradition, certainly at the federal level and in every state I've ever heard of, is that the situation of a crooked chief executive is handled by impeachment, which is vested in a political body, not a court.  Illinois is free to depart from that tradition, but it would take much clearer language than "other disability" to convince me that it had done so.

Madigrandstanding

Illinois Attorney General Lisa Madigan has petitioned the state Supreme Court to remove Governor Blagojevich.

She what?

Look, I'm not an expert in Illinois state law. Maybe the state Supreme Court there has the power to declare the Governor out of office. But I never heard of such a thing. When a Governor or President has done something so awful that he has to go, the remedy is impeachment. Courts are not empowered to remove them.

During the Clinton years, what would have happened if some attorney had asked the U.S. Supreme Court to declare President Clinton out of office? That would have been laughed at.

Again, this is all subject to the caveat the maybe Illinois has some unusual setup. But it sounds like grandstanding to me.

Senate Seat Follow-Up

As I remarked yesterday, the Supreme Court case of Powell v. McCormack makes it pretty clear that the Senate would not have the power to refuse to seat a Senator appointed by Illinois Governor Rod Blagojevich to fill the seat vacated by Barack Obama (although, having seated the appointee, it could vote to expel him or her by 2/3 vote). The news is starting to catch up to this point.

But what if the Senate did refuse to seat Blagojevich's pick? Could a court actually order the Senate to seat the person?

This gets a little more complicated. The relief issued in Powell v. McCormack was declaratory. The Supreme Court determined only that Powell was entitled to a judicial declaration that the House of Representatives was without power to exclude him from membership. Further relief was unnecessary, because Powell had been re-elected! He was excluded from the 90th Congress, but he had been re-elected to the 91st Congress and was seated in that Congress. So the Supreme Court didn't face the ultimate question about how far a court could go in ensuring compliance with its decision.

The Court's opinion (which was unanimous) did say that declaratory relief can "be used as a predicate to further relief, including an injunction." So the prospect for a coercive order that an appointee be seated is there. Still, somehow I think the current Court would be more receptive than the Powell Court to the argument that courts lack power to issue coercive relief directed at a House of Congress.

So while Powell seems to make it pretty clear that the Senate could not refuse to seat a Blagojevich appointee, it's less clear what would happen if the Senate did that anyway.

Illinois Senate Seat

Despite calls for his resignation, as of right now, Rod Blagojevich is still the Governor of Illinois, and he could still name anyone he wants to the U.S. Senate seate vacated by Barack Obama. Various news stories are suggesting that if he exercised this power, the Senate might refuse to seat whoever he chooses. According to these stories, the Constitution gives the Senate the power to refuse to seat the Governor's choice because the Senate has the power to judge the qualifications of its members.

Could the Senate refuse to seat Blagojevich's pick? I don't think so.

It's true that Article I, section 5 of the Constitution provides that "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members." But in Powell v. McCormack, the Supreme Court held that this clause refers only to "the standing qualifications prescribed in the Constitution": that the member be a specified age, a citizen of the United States for a specified amount of time, and an inhabitant of the state for which he serves. The Court specifically rejected the ability of a house on Congress (in that case the House of Representatives) to exclude someone because of what the house regarded as his moral unfitness. That would seem to extend a fortiori to moral unfitness in the person who appointed a member.

So it seems to me that the Senate would have to seat a replacement picked by Blagojevich. The Senate could then immediately vote to expel that person. But an expulsion is different from an exclusion: in particular, under the Constitution, it requires a two-thirds vote. That might well happen, but it's a higher hurdle than an exclusion, which requires only a majority vote.

OMFG

It's not often that I am completely blown away by something unexpected when I casually click on the headlines, but this time I certainly was. Just in case you thought you had seen everything crazy that politicians do, be sure to click here. Of course at this stage it's only an allegation, we have to assume innocence, but it's said that it's captured on tape.

What is up with these characters? On top of the outrageousness of the crime itself, I am, as with most of the previous cases, stunned by how anyone could possibly be so stupid. How could anyone possibly imagine that he would get away with this? And how could it be so blatant? Of course I would never have this problem because if I were a governor it wouldn't even occur to me to try to sell a U.S. Senate seat, but even if you were the kind of person who would do this, wouldn't you at least do it with a modicum of discretion? I mean, I know there are crooked politicians, but somehow I imagined that even they employ roundabout periphases that give some degree of plausible deniability. Look at Ted Stevens. He was found guilty, but even he hadn't given the government a smoking-gun, straight-up, goods-for-votes trade. That's why he was only convicted of failing to report gifts.

If the evidence in the current case is true, we have outrageous, flat-out bribery. It's utterly corrupt and it's unbelievably stupid.

Minnesota Brainstorming

As the Minnesota Senate recount grinds agonizingly on, one thing seems clear: there is no way to decide who truly won a race that's this close. I've been trying to think up ideas, but I'm afraid my best brainstorming hasn't solved the problem.

Running all the ballots through the machines and accepting the count is not the solution. Machines make mistakes. When you see a ballot that's marked with only a two-stroke "x" in the oval for the Senate choice, you know that's something the machine might not pick up. But when you see that the voter put only "x"s in the ovals for every election on the ballot, you know that the voter intended to vote for the candidates marked with the "x"s. As you look at images of the disputed ballots, you see many similar situations where the voter's intent is clear, but where it's understandable that the machine might not have counted it. Human judgment is necessary.

But humans make mistakes too. Judgment calls can be clouded by partisanship, intentional or unconscious. Even if everyone involved is counting with perfect honesty, there are still screw-ups. Humans can put ballots in the wrong pile. Counting a pile of 1000 ballots, humans might come up with 997 or 1004. Some ballots disappear.

And by the way, while it might seem that the solution to human partisanship is to trust the machines and say that it's just too bad if voters are too dumb to fill out their ballots correctly, remember that the apparently impartial solution of trusting the machines is actually partisan; the partisanship is just implicit rather than explicit. Democrats (at least according to conventional wisdom) have a higher error rate in filling out their ballots than Republicans, so putting the whole thing in the hands of the machines has the effect of giving a small edge to Republican candidates.

If the vote totals were separated by 1%, none of this would matter. 1% seems like a whole lot in the context of this recount. Even half a percent -- the statutory limit for automatic recount -- would be a luxurious margin. In this case, as in Florida's 2000 presidential race, the vote totals are separated by less than 1/100 of 1%. Even a margin of 0.02% would give me a lot more confidence that we would know the true winner at the end. The 0.01% difference seems impossible to resolve correctly.

Holding a runoff where no candidate reaches 50% (as Georgia did), would have solved the problem of this race, as would instant runoff voting, in which voters also vote for their second and third choices, and in which those votes immediately count if no one breaks 50%. Here, Dean Barkley's 400,000 votes would have been immediately distributed between Coleman and Franken and would, in all likelihood, have clearly broken the tie.

But neither of these methods really solves the problem. They would have worked this time, but might equally well have created trouble another time. For example, if Coleman had 44%, Franken had 42%, and Barkley had 14%, the election would have been clearly decided under the existing first-past-the-post rule, but distributing Barkley's votes under instant runoff might have created precisely the 0.01% difference that we see now. A candidate might have a clear plurality margin in an initial election but the runoff might result in a tie. So runoff and instant runoff (although perhaps desirable for other reasons) are just as likely to create an almost perfectly tied vote as it is to break one.

Similarly, one is tempted to say that the rule should be, "if the vote totals are separated by less than 0.01%, redo the election." But does that really help? Again, it just pushes the marginal cases out to a different line. There could be just as must trouble deciding whether the margin is above or below 0.01% as there is deciding which candidate is ahead under the current standard.

A better rule might be to vest someone (presumably the Secretary of State) with discretion to decide whether the election is so close that it should be redone, with the statutory guidance that redos should occur when the margin is about 0.01%. That would allow for a decision to be made without agonizing about determining the exact margin. But of course the fatal flaw with this method is that it would be impossible to find someone who could be trusted to exercise the discretion impartially.

Perhaps the best thing I can come up with is this: if the machine count on election day produces a margin of less than 0.5%, hold a recount, and if the margin is less than 0.01%, do the election over without a recount. That way the costs of a recount are avoided when it seems likely in advance that the election cannot be decided accurately. But again, even that method doesn't really solve the problem. It takes care of the present case, but still leaves trouble in the case where the initial machine count produces a margin of 0.02%, but the human recount is more closely tied.

Sorry, there's no solution. No matter what you do, there are going to be cases in which the count is too close to whatever line you've drawn.

I guess the ultimate solution is too increase the accuracy of voting on election day to the point where we can really trust the machine count and not have recounts even if it's really close. But that was the point of touch-screen voting, which has turned out to be a disaster.

The real solution is to win by a bigger margin.

The Next Attorney General

The New York Times editorial page today focuses on the next attorney general, pointing out the slew of problems the new A.G. will face.

Here's my advice: on the first day in office, the new A.G. should issue a memo to all employees in the Department that says, "All hiring for career positions is to be done strictly on the basis of merit, with no consideration given to ideology or politics. To those employees involved in hiring, this is a directive, to all others; it is a pledge."

As a former Justice Department employee, I was particularly offended by the politicization of career hiring at the Department. Of course hiring for political positions is political. But career hiring should be politically neutral. The Department should hire the best people it can find. There's no need to hire loyalists for career positions -- the career staff takes direction from the political staff.

A clear directive to this effect from the new A.G. would set the right tone for the new administration.

MN Recount Drags On

They're still counting ballots in Minnesota. For an interesting peek into the process, you can take the Star Tribune's vote-counting challenge: the paper presents pictures of 599 challenged ballots. (A free but rather annoying registration is required.)

I say interesting, actually it gets dull rather quickly. Unlike the ballots presented by Minnesota Public Radio, most of these ballots seemed crystal-clear votes for either Coleman or Franken -- at least, that's what I thought. There were a few toughies, but most of the challenges strike me as frivolous. So not as interesting as the MPR display I linked to previously. (And another defect is that the Star-Tribune's display doesn't show you how other viewers voted on each ballot, the way the MPR one does.)

Apparently Franken's team is going to withdraw a bunch of challenges ("more than dozens," they say). Good. There's no point wasting time on ballots that are obvious Coleman votes. Coleman's side should do the same. Many of the challenged ballots are clear-cut Franken votes.

The ballots challenges have obscured the issue of who's actually ahead. If one side challenges a vote that was previously counted for the other, that vote is removed from the total until the State Canvassing Board's ruling. So although the vote count currently puts Coleman ahead by even more than on election day, the total misleadingly misses many clear-cut Franken votes that Coleman has challenged. And some of the same is going on in the other direction. So the current margin is somewhat meaningless. There's just no knowing the outcome until the State Canvassing Board rules on the challenges. Sorry, but we'll just have to wait.

It's Not YourSpace

Sorry for the break, Faithful Readers -- I was away for Thanksgiving.

Perhaps the most interesting legal story over the break was the Myspace cyberbullying verdict. Lori Drew, a woman in her 40s, created a fictitious persona of a teenage boy on MySpace and used it to send messages, first friendly and then nasty, to a teenage girl who had had a falling out with Drew's daughter. The girl committed suicide after receiving the message "the world would be a better place without you” from her fictitious friend. Drew was convicted last week.

Drew's conduct was obviously horrible and it had terrible consequences. But not all such conduct is a crime. It's important to be careful about stretching the boundaries of criminal law to cover anything that some prosecutor wants to punish. Prosecutors are often busy pushing their own careers and sometimes seem to lack the sense of restraint that one would hope accompanies the exercise of prosecutorial discretion.

In this case, Drew was convicted of violating the federal Computer Fraud and Abuse Act. This statute, as one would imagine, has primarily been applied in cases of what one would think of as real computer hacking -- breaking into computers that one isn't supposed to be accessing. But, looking carefully at the statute, one sees that it applies to anyone who "intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains . . . information from any protected computer if the conduct involved an interstate or foreign communication." 18 U.S.C. § 1030(a)(2)(C). And the crime is a felony if it was done "in furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States or of any State." § 1030(c)(2)(B)(ii). "Exceeds authorized access" is defined as "to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter."

Drew was supposedly guilty of this crime in that she violated the "terms of service" of MySpace by giving false information when she created the fictitious MySpace profile. The U.S. Attorney in Los Angeles has evidently decided that pretty much any violation of a website's TOS is a federal crime.

Looking at the text of the statute, I would say that, if it weren't for the definition of "exceeds authorized access," it would be pretty clear that Drew did, in fact, violate the statute. Without the definition, the statute basically says that you're not allowed to access other computers in an improper way. The exact definition given in the statute leaves some room for doubt: did Drew obtain information she wasn't entitled to? If you could have gotten the same information with an honest access, it's not totally clear to me that the information is information you are "not entitled . . . to obtain." But it is at least arguable.

So based on the text of the statute, I would have to say that the U.S. Attorney is not totally out of bounds. Even with respect to websites that are right out there on the Internet for anyone to access, there's a decent argument that that Congress has made it a crime to access them in other than the proper way.

The real question is whether this is the world we want to live in. Judging from the number of messages I get from people who call themselves "v4vendetta" or "Crouching Lesbian" or the like, people like the anonymity of the Internet. We don't want to have to give all our real personal information just to look at a website or send someone else a message. Of course this means that the Internet is a breeding ground for fraud, but we are content to let caveat emptor rule the day and to count on people to understand that there isn't really millions of dollars waiting for them in a blocked Nigerian bank account.

So one might even think that the verdict represents an appropriate compromise -- Drew was convicted of misdemeanors only, and perhaps the answer is that prosecutors will ignore the millions of violations of the statute that probably occur every day, and trot out the statute only when, as in Drew's case, someone uses unauthorized access to a computer for truly bad ends. But at the same time, it's important to remember that the terrible consequences that occurred in this case are not an element of the crime of conviction. If this verdict holds up, it means that people are committing crimes when they use a false name to look at a weather forecast on the Internet. I do find it somewhat chilling to know that prosecutorial discretion is all that stands between people who give a flase name to any Internet site and a jail cell. Some tightening of the statute would, I think, be a good idea.

$900 Million Typo

Last week, I blogged about an error made by a government lawyer (later characterized by the government as a "typo") that nearly cost the government $200 million. But how would you like to be the lawyer responsible for a screw-up that cost your client $900 million?

It's an old case, but last week's incident reminds me of InverWorld v. Commissioner, a D.C. Circuit case from the 1990s. InverWorld, Ltd., a Cayman Islands corporation, didn't think it owed any U.S. taxes because it didn't think it conducted any trade or business in the U.S. The IRS, apparently believing that InverWorld had enough U.S. contact that it owed U.S. taxes, sent the company a notice that it owed $45 million in withholding taxes (i.e., FICA taxes on InverWorld employee income) and a separate notice that it had also owed several hundred million in corporate income tax.

Lawyers at InverWorld filed a timely petition to contest the assessment of withholding taxes, but said nothing about the notice that the company owed corporate income taxes. The IRS therefore proceeded to assess the company for the corporate income taxes. With interest and penalties thrown in, the amount owed was $900 million. The IRS sent InverWorld a bill.

At this point, the company woke up and said that it was also contesting its corporate income tax bill. But guess what? The time to contest that amount (measured from the original notice) had expired. And the court ruled that the petition contesting the assessment of withholding taxes was insufficient to contest the income taxes. So, the court said to InverWorld, no process for you -- kindly pony up the $900 million that you don't think you owe.

The case had a certain hypothetical quality about it, inasmuch as it seemed highly unlikely that InverWorld was actually going to pay the money in any event -- it was off in the Cayman Islands and I doubt the IRS would be able to get hold of any of the company's assets. So I'm guessing the company just vanished into the Caribbean mist and never actually paid the money.

Still, how would you like to be the lawyer who was responsible for a screw up that led to a $900 million judgment against your client? It pays to be careful.

Economy Still Going Strong

OK, maybe it isn't. But I'll tell you this: my girlfriend and I went to see a movie in Georgetown yesterday (Slumdog Millionaire -- pretty good, although the love interest part is not compelling), and on the way back we stopped into Tretorn to look at some athletic shoes. Someone on M Street had offered us free hot cider and a $25-off coupon, and my girlfriend had been looking for Tretorns anyway. As we were browsing, I observed that the store had a DJ spinning vinyl records. Putting this point together with the cider and the coupon and the fact that I had never noticed this store before (although it's up a flight of stairs, not easy to spot), I decided it must be the grand opening. But no, it turned out that the spinmeister was a regular feature of the store. And it's not as though he did anything else. That was his job.

And then as we walked home, we passed an Adidas store that also had a DJ spinning records. And he didn't seem to have any other work either.

Now, I'm not a corporate mogul. I don't know what packs in the 20-something customers that these stores seemed to be aimed at. But I will say that, in a down economy, these jobs looked pretty expendable. I don't know what they're pulling down, but it has to be something.

The stock market may have hit its lowest level in 11 years, but things haven't reached the point where Tretorn and Adidas have realized that they could put a CD on the stereo and have one of the shoe sellers change it from time to time. So there must be some life in the economy yet. In a real downturn these DJs would be axed. As John Cleese pointed out to the pantomime horses when telling them that one of them would have to go, the management consultants were questioning why the bank employed a pantomime horse at all.

How Neutral Are You?

The Minnesota Senate recount just keeps getting more interesting. After two days of hand counting, with 46% of the votes recounted, Coleman's lead is down to 136 votes.

Now, if one naively assumed that Franken would continue to pick up votes at the same rate for the remainder of the recount, he'll end up losing. Coleman started out ahead by 215, so recounting 46% netted Franken 215-136 = 79 votes. Therefore, one would naively expect the rest of the recount to net him 54/46*79 = about 93 votes, which would still leave him down by 43. (That's out of 2.8 million!)

Of course, the rate of change does not have to be constant, and a lot depends on which counties are left to go. So the above calculation could be misleading.

But what's really interesting are the questions that the recount raises. For a fascinating insight into what the counters have to decide, see here. Courtesy of Minnesota Public Radio, the linked page presents pictures of actual, challenged ballots, with the question that each ballot raises. Take a minute and see if you can decide whether each ballot should count for Coleman, Franken, someone else, or not at all.

Not so easy, is it? I thought most of the challenged ballots had pretty clear answers, but some definitely present close, judgment calls. The Minnesota law requires ballots to be judged by the "intent of the voter" standard. It's not so hard to judge the voter who started to fill in the oval for Coleman, then wrote "NO" next to it and filled in the oval for Franken. That's a Franken vote. The voter who filled in the oval for Franken but had a small dot in the Dean Barkley oval is an even clearer Franken vote. But what about the voter who filled in the oval for Coleman, but also put an "X" through the oval, and didn't fill in anything else? I'm giving that one to Coleman, but it's a closer call. And how about the voter who put an "X" in the Coleman oval and wrote "Bachman" in the write-in line? I would reject that ballot altogether. Perhaps the closest call is the voter who voted for Coleman but also put what appears to be a signature on the ballot. Minnesota law voids a ballot if it is "is marked by distinguishing characteristics in a manner making it evident that the voter intended to identify the ballot." The mark on this ballot is illegible, but it looks so much like a signature to me that I would disqualify it. Tough call, though.

It's got to be a tough job for the recounters. It happens that I've met Mark Ritchie, Minnesota's Secretary of State, and had some discussions with him about election law issues (about a year ago, not related to any of the current recount issues). My impression of him is that he's very committed to honesty and integrity in elections, and although he was elected to office in a partisan election (he's a Democrat), I would trust him to pursue the goal of a 100% honest, fair, neutral recount. But can the same be said of every single person who's actually involved in counting? I have no idea. And even more to the point, even assuming every counter is committed to a fair, honest, neutral recount, is it really humanly possible not to be swayed by some degree of (possibly unconscious) bias in making the close, judgment calls that the ballots actually present? That's a harder question still.

I am also put in mind of something Justice O'Connor said in the oral argument in the infamous case of Bush v. Gore. Discussing the standard for counting the votes, she asked, "Well, why isn't the standard the one that voters are instructed to follow, for goodness sakes?"

The pictured Minnesota ballots show how utterly naive and inappropriate that suggestion was. When you have millions of people, some careless, some in a hurry, some not well educated, some who don't speak English as a native language, some just not so bright, all doing something that they only do once every couple of years, they are going to make some mistakes. It's absurd to imagine otherwise. It's appropriate for the law to preserve the right to vote by taking these mistakes into account and permitting votes to count if the intent of the voter can be reasonably discerned.

And by the way, the other thing that's always struck me about that O'Connor quote is that she really meant to say "for goodness' sake," not "for goodness sakes." I guess she doesn't know how to follow instructions.

Incredible Shrinking Lead

OK, I can't resist: another blog entry about the election.

Norm Coleman's lead over Al Franken is down to 174 votes! That's out of about 2.8 million votes cast -- a difference of about 6/1000 of 1%. It doesn't come much closer than that.

Coleman previously urged Franken to waive the recount and concede, but that was ridiculous. Ted Stevens has graciously conceded in Alaska, but he's down by about 3,700 votes out of 300,000. There's a big difference between being down by 1.2% and being down by 0.006%. The common statutory standard is that a difference of less than half a percent justifies a recount at state expense. 0.006% is a whole lot less than half a percent.

Moreover, if one assumes that Democratic voters are more likely than Republicans to mismark their ballots, in a way that makes it difficult for machines to count, then a recount could make a big difference to Franken. Even a slight edge could overcome a 0.006% difference.

So I think a recount is totally justified. The one thing that seems peculiar to me is one feature of the actual recount process. The part that makes sense is steps 6-10 in the process: each ballot is inspected by a team of humans to determine who the voter really intended to vote for. That's fine -- machines can make mistakes, and a human should look at each ballot and determine which pile it really belongs in.

But then step 11 says that humans will also count up the ballots in each pile. Now that seems like a bad idea. Humans make mistakes too. Humans are better at exercising judgment, but machines are better at doing routine, boring tasks that don't involve judgment, like counting how many ballots there are in a huge pile. Imagine counting a pile of about 1000 ballots. Would you come up with exactly the right number?

I would have the humans sort the ballots into piles by deciding which candidate each ballot votes for, but then I would have machines count up the ballots in each pile. Mistakes are possible either way, but I would trust the humans to make fewer mistakes sorting the ballots into piles and the machines to make fewer mistakes in counting the ballots in each pile.

Of course best of all would be to do an empirical study of which method involves fewer mistakes, rather than consulting one's intuition. But there's no time for that now. People are counting big piles of ballots. Let's hope they come up with the right answer.

Burrowing In

It happens every four years: some political appointees of the outgoing administration "burrow in" to the career civil service. Apparently the outgoing Bush administration has approved 20 such moves, including 6 within the Senior Executive Service (the highest government pay ranks).

Now, this is hardly new and it's not even uniquely partisan; the outgoing Clinton administration approved 47 burrow-ins (including 7 SES moves). But it does particularly stick in one's craw when the outgoing President has a dismal approval rating and is busy making last-minute rules changes that will cement everything that got his party pushed out.

The President is just making life that much more difficult for his successor. He's putting rules in place that will take a year or two to unwind; he's appointing civil servants who will be difficult to push aside or fire. Sure, the practice is as old as the "midnight judges" appointed on the last day of the Adams presidency in 1801. But it's still rotten. And just brace yourself for the last-minute pardons that will likely follow.

Welcome, New Readers

My hits went through the roof yesterday thanks to a link from my colleague Orin Kerr, regular poster on the Volokh Conspiracy. (I didn't put him up to it, I swear!) To all new readers who come from there, welcome.

$200 Million Typo

Typos are always embarrassing, but how would you like to be responsible for a typo that, a court rules, fatally costs your client money? Not fun, particularly if the amount of money involved is $200 million. As you can see here, a U.S. government lawyer had this unhappy experience -- but was rescued at the last minute.

A certain Walter Anderson was convicted, by guilty plea, of income tax evasion. Apparently, Anderson used "a complex scheme involving several foreign corporations" to hide about $450 million in earnings over five years.

Now, let's just pause for one second here. If I earned $450 million over five years, I think I would be happy to pay the $200 million or so I would owe in taxes and live fabulously on the $250 million I'd have left. I don't think giving up the $200 million would bother me that much. But then, perhaps that's why I haven't earned $450 million. Maybe, to earn that much, you have to want every penny of it. Maybe I just don't have the right attitude.

Anyway, Anderson wanted that $200 million so much that he risked going to prison for it, which he is now doing -- for nine years (that's why I still think my attitude works better). But here's the funny part: the plea agreement provided that "the court may order restitution pursuant to 18 U.S.C. § 3572." The obvious purpose here was that the court sentencing Anderson to prison would also have power to order him to pony up the taxes he'd evaded. But there was one little problem: 18 U.S.C. § 3572 isn't the restitution statute. It's the fines statute. The restitution

statute is 18 U.S.C. § 3663.

Oh, that's just "a typo" and not "something that the court should be getting wrapped up about," said the U.S. attorney. Not so fast, said the district court. Under the applicable statute, the court only had power to order restitution "to the extent agreed to by the parties in a plea agreement," and the plea agreement only permitted restitution under a non-applicable statute, so there was no power to order restitution. Sorry, your typo cost the government $200 million.

Actually, the error was not really a "typo"--no one tried to type "3663" and accidentally hit the keys for "3572." It was more like a "wrongo" or even a "stupido"--someone deliberately put in the number of the wrong statute.

In any event, the court of appeals came to the rescue, ruling (correctly, I would say) that (1) the restitution statute requires authority for restitution in a plea agreement, but does not require citation to the restitution statute in the agreement, and (2) the other conduct of the parties made it very clear that they intended the plea agreement to provide restitution authority. So they allowed restitution.

So all's well that ends well, but how would you like to be the attorney who made what might have been a $200 million error?

Back at Last

At long last, we shake off election fever and return to our regularly scheduled programming. (I know, I know, Al Franken is down by just 206 votes with a recount pending and you want to hear about it, but we're not covering election issues today!)

No, today it's back to good old law, particularly the latest Supreme Court opinion. You've probably heard that the Supreme Court ruled for the Navy in a dispute pitting environmental concerns against military preparedness. The Navy wants to conduct training in the use of active sonar to detect diesel-electric submarines, but there's some concern that the sonar would harm marine mammals. The district court hearing the case required the Navy to adopt various measures to mitigate the harm to marine mammals that its training exercises would cause.

The Supreme Court has now vacated the injunction. What's interesting about the case is the reason the Court chose to hang its opinion on. The Court doesn't disturb the district court's finding that the plaintiffs are likely to succeed on their claim that the Navy violated the National Environmental Policy Act by failing to prepare an Environmental Impact Statement. Instead, the Court says that even assuming the plaintiffs will win on this claim, the district court erred in issuing injunctive relief in their favor. The Court reminds us that injunctive relief is an "extraordinary remedy," and that, before awarding it, a court is always supposed to balance the competing harms to the parties and to the public interest. Even if you show a violation of law, you never have an absolute right to injunctive relief.

Here, the Court said, the harm to the Navy's preparedness exercises, and to the public interest in military preparedness, outweighs the interest of the plaintiffs in avoiding harm to marine mammals. It's difficult to gauge the validity of the Court's holding without plunging deeply into the record, but the case is an interesting reminder that you face many obstacles if you actually want the law enforced. Even when you show a violation, you have to convince a court that enforcement is actually a good idea.

Election Wrap-Up

Faithful readers, I know that you have been disappointed by the lack of blogging since the election, but I had to leave immediately afterward for a conference in Michigan. But I'm back now, so let me just say . . .

YES WE DID!

How exciting. Election night was really amazing -- I've never seen anything like it in DC. When the networks called the election for Obama at 11:00 pm, people poured out into the street and were dancing, singing, chanting, and hugging random strangers for hours. I remember that people were happy in 1992, when Bill Clinton won -- and that was after 12 years of Republicans in the White House -- but it was nothing like this. DC is excited. We're all looking forward to the new administration with great anticipation.

I'm looking forward to it myself, and also to returning this blog to its roots. This isn't really meant to be an all-politics, all-the-time blog, but I do tend to get a little distracted in the time leading up to a presidential election. Hopefully blogging can resume more normally now.

But we are allowed to be excited.

Finally

Thank goodness the election is today, I don't think I could take any more waiting.

Remember to VOTE.

Remind all your friends to vote. Particularly remind your friends who live in swing states. If you live in a non-swing state (or, heaven forbid, the District of Columbia), this is your chance to influence the election.

Be sure to vote effectively. Check your vote carefully to make sure it will count.

Ignore all polls on election day. Exit polls are unreliable. They were wrong in 2000 and 2004. Don't even look at them until after you vote.

Vote for Barack Obama, but whichever way you're voting, the main thing is to VOTE and to encourage everybody else to vote. Remember, Democrats are against vote suppression.

Don't let rain, snow, sleet, long lines, or anything else stop you from voting.

Get out there and vote, vote, VOTE!

Out on a Limb

In case you were wondering, here are the final results of Election '08, a day early:

PRESIDENT
OBAMA -- 311 -- 52%
McCAIN -- 227 -- 47%
OTHER -- 0 -- 1%

SENATE SEATS
DEM -- 58*
GOP -- 42

* - Counting Lieberman and Sanders

HOUSE SEATS
DEM -- 257
GOP -- 178

And by the way, today is my birthday, in honor of which I made up the following riddle:

What do you say to someone whose birthday comes just before election day?

Click here for the answer.

Doing My Bit

Just finished two days of canvassing for Barack Obama in Virginia. It was fun -- beautiful weather yesterday, a bit chilly today. Knocked on many doors. Eveyone was polite, even the uninterested.

The way canvassing works (where I'm doing it, at least) is that we start in DC, get assigned to a Virginia town HQ (Herndon today), get trained at the HQ and then sent to a local neighborhood HQ, where there's a tad more training and then we actually get sent out to canvass. And here's the big news: at the first local neighborhood HQ we arrived at today, there was nothing to do. All the canvassing packets were already distributed. There were too many volunteers. We had to go back and get reassigned. That's how fired up the Obama campaign is in Virginia.

And the town HQs are totally buzzing. Yesterday in Manassas and today in Herndon and previously in McClean, there are volunteers arriving every minute and people there coordinating them, working the phones, entering data, and doing tons of other stuff.

My experience is consistent with what you can read in the "On the Road" series at fivethirtyeight.com, which has consistently described Obama HQs buzzing like beehives and McCain HQs as almost sepulchral. Check out these photos.

Two days to go. Can you tell I'm fired up?

On Their Way Out the Door

While everyone is, shall we say, a little distracted, the Bush administration (yes, Bush is still President) is busy ramming through one last round of deregulatory rules. The proposed new rules would weaken regulation on consumer protection, the environment, and other issues.

Sheesh. It's not as though the Democrats were any better on this -- the Clinton administration tried to ram through a whole bunch of rules right at the end too -- but it's more than a little shady. Of course the next administration can undo rules, but it's cumbersome. Once an administrative agency adopts rules through a rulemaking process, it usually takes the same process to undo those rules. And while the rulemaking process is supposed to be fairly straightforward -- just propose the rules, receive public comment, and then announce your final decision -- in practice so many requirements have accreted onto the rulemaking process that it has become rather ossified. It's a big, complicated deal to do any rulemaking, even one that just undoes a previous rulemaking.

From the beginning, Bush has never cared much about public opinion. He's gone after divisive measures in a way that seems almost deliberate. One would hardly expect anything different now that he's immune to political reprisal. But it leaves a sour taste in one's mouth. This election can't happen fast enough.

That Veep Role Again

It sure does seem to be hard for people to say what the Vice President does. Sarah Palin famously overstated the Veep's role when she said that the Vice President is "in charge of the United States Senate." As I have explained, that overstatement was not really so bad as people have been making out, inasmuch as she was trying to explain the Vice President's job in a way that would be understandable to a third-grader.

But now George Will, who should really know better, responds that the Vice President has "no constitutional function in the Senate other than to cast tie-breaking votes."

Look, what is so hard about this? There's just one sentence that sums it all up. The Constitution provides that "The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided."

So while Palin overstated the Vice President's role, Will understated it. The Vice President does have a constitutional function in the Senate other than casting tie-breaking votes. The Vice President is the President, or presiding officer, of the Senate. So the Vice President presides over meetings of the Senate, which involves choosing Senators to speak and making rulings on points of parliamentary procedure.

It's not much of a role. The Senate rules rather sharply constrain the power of the presiding officer -- in part precisely because the Senate doesn't want the Vice President to show up and exercise a lot of power. Even in choosing which Senator to call on, the presiding officer is constrained -- the rules require calling on whichever Senator rises first. And rulings of the presiding officer on parliamentary questions can be appealed to the full Senate (although this rarely happens).

For this reason, the power of the presiding officer is sufficiently minor that most of the time the Vice President doesn't even bother to show up to exercise it. But it's not nothing -- it's sufficiently important that the majority party permits only members of the majority party to preside.

So if we're going to jump on Palin for overstating the Veep's role, we should be careful not to understate it either.

More Nonsense From McCain

I'm sorry to have such a slanted headline, but really, the latest sally from McCain is just too much.

McCain is picking up on something Joe Biden said in a recent interview. In explaining Barack Obama's tax plan, Biden said that he and Obama disagree with the Bush policy of giving further tax breaks to people with huge annual incomes, and instead think the tax cuts should go to "people making under $150,000 a year."

McCain is leaping on this statement and saying that the Obama/Biden definition of "rich" is "creeping down." Pretty soon, McCain claims, Obama will be raising taxes on anyone who makes more than $42,000 a year.

Now, look. Biden misspoke. The Obama tax plan has been the same for months. He wants to cut taxes on families making less than $200,000 a year, not raise them on families making under $250,000, and have families making more than $250,000 a year pay the same tax rates they paid in the 1990s, or less. Biden said $150,000 when he meant $250,000. Even former National Review writer Jonathan Martin recognizes the possibility that Biden's statement is just a slip.

Biden is known for his gaffes, but there's a difference between making a gaffe and having a minor slip of the tongue. When you probably do 50 interviews a week (or about 50 more than Sarah Palin does), you're going to have some slips. If there were any reason to think that Biden's statement represented a change in policy, it would be fair game. But making a serious attack on a minor slip of the tongue is just absurd.

After all, it's not as though McCain is immune to slips. We all have a few laughs when McCain refers to problems on the Iraq-Pakistan border (which doesn't exist), or confuses Sunni and Shia in Iraq. But we don't imagine that every slip of the tongue he makes represents a change in his policy.

There's a week left to go. Let's run the campaign on real issues, not on imaginary nonsense.

Guilty, Guilty, Guilty

Actually, guilty, guilty, guilty, guilty, guilty, guilty, guilty.

That's the jury verdict on Senator Ted Stevens. The jury found Stevens guilty on all seven counts of failing to report gifts.

Now, I firmly believe that you can't make a fair judgment about a criminal case that you've followed only through news accounts. On the one hand, Stevens's defense, that he asked to be billed for all the work done on his house, and that it wasn't his fault if his builder included some freebies without telling him, was not wholly implausible. On the other hand, Stevens' claims about some of the gifts were a little hard to believe, such as, for example, the claim that a massage chair placed in his house wasn't his property and he'd never used it, even though it had been there for seven years and he sent an e-mail saying, "It is great: I can't tell you have [sic] much I enjoyed it."

This is why we have juries. The jury saw all the evidence, not just the part they happened to read on any given day in a newspaper story. The jury weighed it all up and decided that they were convinced, beyond a reasonable doubt, that Senator Stevens had failed to report gifts as required.

Well, there's no law against the people of Alaska re-electing him anyway, and who knows, maybe they'll be drawn to him as a contrarian reaction against the verdict delivered by the jury in Washington, DC. But it looks like Alaska might have a new Senator soon.

Sarah the Wealth Sharer

Sarah Palin has taken to calling Barack Obama "Barack the Wealth Spreader" to highlight his connection to what she calls socialism. Like everyone else who uses this argument, she's just displaying her ignorance of what socialism is.

And, as with so many things the McCain/Palin ticket is saying, she's also being utterly hypocritical. Let's flash back to an interview she gave before she was the vice presidential nominee. In commenting on the fact that Alaska not only has no income tax but actually sends each resident a check every year, she told Philip Gourevitch of the New Yorker:

"Alaska—we’re set up, unlike other states in the union, where it’s collectively Alaskans own the resources. So we share in the wealth when the development of these resources occurs."

Collective ownership of resources! Share in the wealth! Now that's more like socialism.

Communism

There's a lot of talk lately about how Barack Obama's tax plans amount to socialism, or even communism. Let's take a look at a typical example, from radio talk show host Neal Boortz. Boortz recently wrote a letter "To The Undecided Voter," in which he says the undecideds should "try to base your final choice on some substantive facts." I'm all for that, but Boortz seems to be the one who needs to get his facts straight. Boortz says that "what Barack Obama is pushing here, at least insofar as his tax policies are concerned, is communism." He elaborates in this vivid passage:

"Let's talk heartbeats. Sounds weird, but I'm going somewhere here. A bit of Internet research led me to the fact that the average number of heartbeats in a life time for a human being is about one billion. To make this more understandable, the average human heart beats around 70 times a minute. In one eight-hour work day your heart beats around 33,600 times. This is your heart beating .. every beat subtracted from the one billion .. every beat a part of your life gone, never to be recovered. If you are a moderately successful human being Barack Obama is going to take about 13,000 (39%) of those heartbeats away from you every working day. Put your finger on your wrist and feel your pulse. Feel every heartbeat. Just count up to 100. How much of your life went by as you counted? You can't get those beats back. They're gone, for good. Remember, you only have a finite number of those beats of your heart left ... and Obama wants 13,000 of them every working day of your life. Those heartbeats – your life – being expended creating wealth. Your heartbeats, your wealth. Obama wants them. You don't need them. Someone else does. The police power of the state."

What Boortz might have said a little more accurately is:

"Barack Obama is going to take about 13,000 (39%) of those heartbeats away from you every working day if you make more than $250,000 a year. If, like 95% of all Americans, you make less than that -- say, you're one of those plumbers, waitresses, bricklayers or teachers whom John McCain loves so much -- then Barack Obama is going to take no more of your heartbeats than the federal government takes now. In fact, he's going to give most of you a tax cut, so that he'll take fewer heartbeats than the federal government takes now, and fewer than John McCain will take. For 95% of you.

"Yes, if you are in the top 5% of all American earners, Barack Obama is going to take 39% of your heartbeats. And guess what? John McCain is going to take 35% of them. That's what the federal government's been taking for the last 8 years, under President Bush's tax cuts for the richest.

"Somehow, it seems that I think that 35% of your heartbeats is the all-American, super-capitalist amount of heartbeats to take, but taking 39% constitutes communism.

"I guess the truth is that I, Neal Boortz, don't have the foggiest clue what communism even is, if I think Barack Obama is proposing communism at 39% but John McCain isn't at 35%."

Look, if people don't like Obama's tax plan, that's fine. But the essence of it is changing the top rate from 35% to 39%. The essence of it is going back to where we were in the 1990s for those making more than $250,000 a year. Maybe you think all progressive taxation is communism, in which case Barack Obama is a communist and so is John McCain and so is George Bush, Ronald Reagan, and every President we've had for nearly 100 years. But if you're willing to admit that we have capitalism now, and especially if you're willing to admit we had it in the 1990s, then calling Obama's tax plan communism is just plain stupid.

In Charge of the Senate

Some people are jumping on Sarah Palin for saying that the Vice President is "in charge of the Senate." (Video here.)

Now, now, let's be fair. It's true that Palin's statement was not accurate. Under the Constitution, the Vice President is the President (i.e., presiding officer) of the Senate, but under the rules of the Senate the presiding officer doesn't really exercise much power -- certainly the presiding officer is not "in charge" of the Senate. And in practice, the Vice President rarely even exercises his (or her) power as presiding officer, such as it is.

But the context of Palin's statement is important too. The question came from a third grader. The statement that the Vice President is "in charge" of the Senate, while not fully accurate, is an explanation that one might appropriately give to a child. The difference between "presiding over" and being "in charge" of a legislative assembly is probably too subtle for a third grader to understand.

Look, there are plenty of reasons why Sarah Palin is unqualified to be Vice President. She doesn't understand or have sufficient experience with national issues, and, for heaven's sake, she can't even face a press conference. We don't need to drum up extra reasons. Jumping on this statement is playing gotcha.

Real America

Sarah Palin just loves to talk about how small towns are the "real America."

Even putting aside her absurd comment that small towns constitute the "pro-America areas of this great nation," it's incredible how we've allowed ourselves to be gulled by the notion that "real America" consists of small towns (preferably in the midwest).

It's just not true. The census shows that 79.2% of Americans live in urban areas. Now, that defines "urban areas" to include "Urban Clusters" with a population of 2,500 to 49,999, which might seem inappropriate. To me, a place with 2,500 people is a small town. But the same chart shows that 58.3% of Americans live in urban areas with a population of more than 200,000. And another 10.4% live in urban areas with a population of 50,000 - 200,000. So 68.7% of Americans live in urban areas with populations of 50,000 or more.

So even if we give "small town" the very generous definition of anything less than 50,000, we're talking about 32.3% of America -- less than a third. More than 2/3 of Americans live in urbanized areas with a population 50,000 or more.

If you like to live in some kind of imaginary place where you define your own reality, you could say that the group that makes up less than a third of something is the "real" part. But if you care about actual facts, it seems pretty absurd to ignore the group that makes up more than 2/3 of the population you're talking about.

Oh, and by the way, I'm sure every real American woman has spent $150,000 on her clothes since August, plus $4,700 on hair and makeup!

Obama For President

Two weeks from today, Americans will choose a new President. I'm voting for Barack Obama.

As a law professor, my biggest issue is judicial appointments. The next President will probably appoint 1-3 Supreme Court Justices and scores of lower court judges.

We've had eight years of Bush judicial appointees. They've been highly qualified -- you have to give them that -- but highly ideological. John McCain has expressed his strong support for the Bush appointees and pledged to give us more of the same. That's not what we need.

The Supreme Court in particular is balanced on a razor's edge. If the Republicans win and get even one seat, the Court will be hard-right conservative for decades to come. Many constitutional rights would be endangered.

That alone is reason enough to vote for Barack Obama, but there are many more reasons.

George Bush and the Republican party have been in control for the last eight years. And what have they brought us?

A disastrous economic collapse. Lowered standing in the eyes of the world. Domestic spying. Torture. Implacable government secrecy and unaccountability. Terribly mismanaged government agencies run by unqualified political cronies.

We need change, not more of the same. John McCain is not George Bush, but so many of his policies are George Bush's policies. In particular, he believes in the same economic policies that brought us the mess we have today -- he thinks deregulation and lowering taxes on the wealthiest Americans will solve everything. We've tried that for 8 years, and look what it got us.

John McCain claims to be the candidate of plumbers, bricklayers, teachers, and waitresses, but his plan to help them consists of cutting taxes for rich people. It's the same old trickle-down economics that got us where we are today.

John McCain has also gravely disappointed those who respected him for his so-called "maverick" image. Over the course of the year, he's changed many of his basic positions to match those of President Bush: on the Bush tax cuts, on torture, and other issues. He's run a fear-mongering, negative campaign, in which we've heard endlessly about Barack Obama's slight connection to someone who did bad things 40 years ago -- as though that were the key issue.

In choosing a running mate, McCain violated his pledge to put country first. As even leading Republicans have recognized, Sarah Palin is not qualified to be President if that should become necessary. She can't even face a press conference! And her abuse of power in personnel matters and disrespect for legislative investigation are frighteningly reminscent of President Bush and Vice President Cheney.

Barack Obama represents the change we need. He's shown good judgment throughout the campaign. He's got the better health care plan. He recognizes the importance of education. He'll work to restore America's standing in the world. And he chose a running mate with gravitas and experience who could step in and be President at a moment's notice if necessary.

He'll help the country on race relations. He's run a post-racial campaign. He's appealed to all American regardless of race and he hasn't asked for any special treatment because of his race.

And he's smart. The Republican party seems to think there's something wrong with being smart, eloquent, and talented. It's time to remember that these qualities are good. You don't get to be President of the Harvard Law Review without having something on the ball. We need a smart President.

Yes, one might wish that Obama had more years of national experience. But no candidate has everything. Obama has demonstrated wisdom and judgment beyond his years.

He's the future. He represents the change we need. McCain represents more of the same.

Obama for President.

Listen to the General

Nothing I could say today could match the sober, thoughtful, eloquent endorsement of Barack Obama yesterday by General Colin Powell. I'm sure you've heard news of the endorsement, but if you haven't seen the actual tape, be sure to watch it.

Poll-Driven, Part II

I've mentioned before that I always lose some productivity in the weeks running up to an election because I waste too much time checking the polls. Now I want to raise a mathematical question about the websites that aggregate polling data, particularly the two that I check most: Real Clear Politics and electoral-vote.com. It seems to me that their analysis is off statistically (although both are terrific sites). I don't actually know much about statistics, but I do have an undergraduate degree in mathematics, so I think I at least have a valid question, although I'm not sure of the ultimate answer.

Here's the thing: these websites are gathering up polling data and averaging the data for each race. They weight polls equally. So if one poll shows Obama ahead by 6 in a state and another poll shows Obama ahead by 4, the websites average the two polls and say that Obama is ahead by 5 in that state.

That seems too simplistic to me. At the very least, I think the polls need to be weighted to reflect the number of voters polled in each.

Let’s do a simple example to show why. Suppose one poll surveys 1000 likely voters in a state, and 600 say they’re voting for Obama and 400 say they’re voting for McCain. This poll reports that Obama is ahead 60-40. (I'm making the simplifying assumption that the pollster just reports the raw numbers, which is not what most pollsters actually do, but the issue would be the same regardless.)

Another poll in the same state surveys 500 likely voters, who are evenly split. So this poll reports that the race is 50-50.

Now, the aggregating websites would simply average these two polls and report that Obama is ahead 55-45. But that’s not what the numbers show! Altogether, the two polls surveyed 1500 people. Of those 1500, 850 said they were voting for Obama (600 in the first poll and 250 in the second) and 650 said they were voting for McCain (400 in the first poll and 250 in the second). And 850/1500 = 57% (actually 56.67%), not 55%. So the correct reporting of the two polls combined should be 57-43, not 55-45. That’s a noticeable difference.

So there’s something wrong with just averaging poll numbers equally.

That’s not even considering the fact that the polls might be taken on different days and use different methodologies. But I don’t see any easy way to correct for that. But there is an easy way to correct for the different number of people surveyed in each poll. I think the aggregating websites should take this into account.

fivethirtyeight.com, another poll aggregator, does assign weights based on sample size. But they also assign weights based on other factors that seem pretty subjective.

So the bottom line is that polling, and taking "polls of polls," are more complicated that they appear. The votemaster has a good run-down of polling issues.

Update (10/20): I sent my question to the Votemaster, who kindly sent me a reply, in which he said that my point was correct, but that there were so many other issues regarding polls (such as the order of the questions, or whether party identification is given) that the sample size is "down there in the noise."