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Was OU Expulsion of SAE Frat members Constitutional?

Monday, 30. March 2015 16:49

Recently there was an incident at the University of Oklahoma where members of the Sigma Alpha Epsilon fraternity were caught on video singing a racist chant while on a bus to a formal fraternity dance. The chant, among other offensive and racist phrases, included the assertion that “There will never be a ****** in SAE.” The phrase used a racially derogatory term for African-Americans and expressed the sentiment that they would exclude African-Americans from membership in their fraternity. David Boren, president of the University of Oklahoma, announced that approximately 25 members of the school’s SAE chapter will face punishment ranging from expulsion to community service and cultural sensitivity training.

Two students, considered the ring leaders of the chant, have already been expelled. SAE was founded at the University of Alabama in 1856, and many of its founders fought for the Confederacy or were part of plantation-owning families. The national fraternity, in defending their institution, pointed to the fact that approximately 20% of its 15,000 national members self-identify as a minority or non-Caucasian. The chapter acknowledged that the OU chapter members likely learned the song at a national SAE leadership conference four years prior to the incident.

Was the chant by the students protected speech under the First Amendment? Read the following with pro and con opinions in articles on the subject:

Yes, it did violate their free speech rights:
No, it is not constitutional for OU to expel students for racist speech

First, racist speech is constitutionally protected, just as is expression of other contemptible ideas; and universities may not discipline students based on their speech. That has been the unanimous view of courts that have considered campus speech codes and other campus speech restrictions — see here for some citations. The same, of course, is true for fraternity speech, racist or otherwise; see Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University (4th Cir. 1993).

– Eugene Vokokh, UCLA Professor of Law

OU Broke the law to avoid bad press

Civil Libertarians Say Expelling Oklahoma Frat Students May Be Illegal

Strong Free Speech Defense for OU Students Expelled for Racist Chant

No, it did not violate their free speech rights:

only was SAE student expulsion legal, it was right

According to these rules, the students could be sanctioned with expulsion. In SAE’s video, abusive language was being directed toward a particular group of students (i.e. African-Americans who wanted to pledge their fraternity). That chant was more than just a casually recited song meant to invoke a sense of brotherhood amongst those in the chapter. And the meaning and significance behind the words in the chant did more than just offend a few students.

As Boren mentioned, the attack on black people that SAE alluded to could make students feel unsafe in a learning environment. After numerous unarmed black teenagers’ experienced deadly force at the hands of white law enforcement, students may feel intimidated by verbal attacks from white students.

– Willie Burnley, Jr. and Alex Samuels, USA TODAY Collegiate Correspondents

OU President Decision to Expel supported by Student Government at OU

Mr. Boren, in an interview Monday as he considered what action to take, said he was examining the relevance of Title VI of the Civil Rights Act of 1964, which prohibits racial discrimination by agencies that receive federal funds and, federal officials have said, forbids creation of a “racially hostile environment” in schools.

In a break with most legal experts, Daria Roithmayr, a law professor at the University of Southern California who has written about the interplay of law and racism, said that a plausible argument could be made that the students’ action caused a “material disruption” in the university’s educational mission and was not protected by the First Amendment.

OU Expulsion of SAE Students Leads to Free Speech Debate

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FEMA and Federalism

Monday, 23. March 2015 14:18

The Federal Emergency Management Agency (FEMA), the federal agency responsible for coordinating with states on disaster relief and disaster preparedness, recently declared that they would only approve state disaster preparedness funds for those states whose governors approve hazard mitigation plans that address climate change:

This may put several Republican governors who maintain the earth isn’t warming due to human activities, or prefer to do nothing about it, into a political bind. Their position may block their states’ access to hundreds of millions of dollars in FEMA funds. Over the past five years, the agency has awarded an average $1 billion a year in grants to states and territories for taking steps to mitigate the effects of disasters.

“If a state has a climate denier governor that doesn’t want to accept a plan, that would risk mitigation work not getting done because of politics,” said Becky Hammer, an attorney with the Natural Resources Defense Council’s water program. “The governor would be increasing the risk to citizens in that state” because of his climate beliefs.

The policy doesn’t affect federal money for relief after a hurricane, flood or other disaster. Specifically, beginning in March 2016, states seeking preparedness money will have to assess how climate change threatens their communities. Governors will have to sign off on hazard mitigation plans. While some states, including New York, have already started incorporating climate risks in their plans, most haven’t because FEMA’s old 2008 guidelines didn’t require it.

Several Republican governors have voiced opposition to the global warming theory and opposed mitigation policy aimed at reducing carbon emissions.

Among those who could face a difficult decision are Republican Governors Rick Scott of Florida, Bobby Jindal of Louisiana, Chris Christie of New Jersey, Greg Abbott of Texas and Pat McCrory of North Carolina—all of whom have denied man-made climate change or refused to take action. The states they lead face immediate threats from climate change.

This federal policy change aligns FEMA with environmentalists who have pressured the agency to include global warming in its hazard mitigation guidelines. FEMA declared to the Natural Resources Defense Council it would revise the guidelines in 2014, it issued draft rules in October of 2014, and officially released the new procedures this past week.

On March 8, the Florida Center for Investigative Reporting said Scott instituted an unwritten ban on the use of “climate change” or “global warming” by Florida officials. Earlier this month, Republican Sen. Jim Inhofe of Oklahoma took a snowball to the U.S. Senate floor as evidence the climate isn’t warming, highlighting GOP leaders’ climate views.

“The challenges posed by climate change, such as more intense storms, frequent heavy precipitation, heat waves, drought, extreme flooding, and higher sea levels, could significantly alter the types and magnitudes of hazards impacting states in the future,” FEMA wrote in its new procedures.

FEMA’s disaster preparedness program has been granting money to states since the 1980s for projects as diverse as raising buildings out of floodplains and building safe rooms. States are required to update their plans every five years to be eligible for the agency’s mitigation funding. Since 2010, FEMA has doled out more than $4.6 billion to states and territories as part of this program.

Republican-led regions constitute eight of the top 10 recipients of this category of FEMA money between 2010 and 2014. Louisiana was No. 1, having received almost $1.1 billion from FEMA for hazard mitigation. New Jersey was third with nearly $379 million, and Texas fourth with almost $343 million.

This is just one example among a plethora where the federal government uses grants to the states to try and pressure them to fall in line with national polices. The most famous example was in the 1980’s when the Reagan administration decided to withhold 5% of highway funds in order to pressure states to move to the 21 years old age for drinking alcohol. This policy was upheld by the Supreme Court as “non-coercive” in the case of South Dakota v. Dole in 1987.

A number of commentators have voiced criticism of FEMA’s policy, given the controversial nature of global warming.

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KTRE Segment on Homeland Security Funding Battle

Saturday, 28. February 2015 11:42

I was interviewed by KTRE on Friday (2/28/2015) about the current political controversy over the Homeland Security funding bill in Washington, D.C. that centers over Republican opposition to the President’s decision to invoke Executive authority to exempt about 4.5 million undocumented immigrants from deportation. Excerpts from the interview are used in the segment and article linked below. | Lufkin and Nacogdoches, Texas

KTRE Article on Homeland Security Funding Battle

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Projecting the Future: A Lesson in Humility

Tuesday, 24. February 2015 0:00

80s laptop

The NY Times had this to say about the profitability and utility of laptop computers in 1985:

WHATEVER happened to the laptop computer? Two years ago, on my flight to Las Vegas for Comdex, the annual microcomputer trade show, every second or third passenger pulled out a portable, ostensibly to work, but more likely to demonstrate an ability to keep up with the latest fad. Last year, only a couple of these computers could be seen on the fold-down trays. This year, every one of them had been replaced by the more traditional mixed drink or beer.

Was the laptop dream an illusion, then? Or was the problem merely that the right combination of features for such lightweight computers had not yet materialized? The answer probably is a combination of both views. For the most part, the portable computer is a dream machine for the few.

The limitations come from what people actually do with computers, as opposed to what the marketers expect them to do. On the whole, people don’t want to lug a computer with them to the beach or on a train to while away hours they would rather spend reading the sports or business section of the newspaper. Somehow, the microcomputer industry has assumed that everyone would love to have a keyboard grafted on as an extension of their fingers. It just is not so.

But the real future of the laptop computer will remain in the specialized niche markets. Because no matter how inexpensive the machines become, and no matter how sophisticated their software, I still can’t imagine the average user taking one along when going fishing.

Keep this in mind when reading confident predictions as to what gadgets, technological innovations, and innovative tools will be in demand and useful next year and five years from now. What may seem like sagacious prognostication now may appear to be quaint foolishness just a few years down the line. We are no better and projecting the future market than we are at projecting the weather of the future (i.e. next week).


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Relevance of Athenian Democracy to Study of American Government

Sunday, 8. February 2015 16:31


Legal Scholar Paul Gowder makes the case for studying Athenian democracy in order to understand modern political debates over law and politics.

Even though Athens isn’t really at the heart of our legal tradition, it is at the heart of our political tradition. The democratic self-understanding of the (male, native-born, not-enslaved) Athenians is remarkably similar to ours, not least because ours is in part directly traceable to theirs through the tosses and turns of intellectual history. And a lot of the other things they were concerned about were also concerns of ours. They, for example, were also concerned about keeping those with socioeconomic advantages from turning them into political advantages (although the worry ran less to campaign finance and more to coups). They, too, were worried about balancing popular sovereignty with good decision-making—a fun exercise is to read Plato together with, say, my friend Jason Brennan.

As VC blogger and law professor Ilya Somin puts it:

Ancient critics of Athenian democracy, such as Plato and Thucydides, argued that the state was dysfunctional because the citizens who ruled it through direct democracy were often too ignorant and irrational to make good decisions. For example, Thucydides claimed that Athens launched the disastrous Sicilian expedition, which led to the fall of the Athenian Empire, because the ignorant citizens had no idea how large and populous the island of Sicily was, and thus were easily snookered by demagoguery in favor of the ill-advised high-risk venture.

For centuries, critics of democracy pointed to Athens as a prime example of why the ignorant masses should be barred from wielding political power, especially directly. These critiques of Athens had a major impact on the American Founding Fathers. They were a key factor leading them to include a number of anti-democratic features in our Constitution.

Hat tip: The Volokh Conspiracy

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The State of the Union – 2015

Wednesday, 21. January 2015 11:46


A roundup of reactions and analysis of the SOTU for 2015:

A visual of the common words in President Obama’s SOTU speeches since 2008:

SOTU Graph

An analysis of the language of the STOU from a historical perspective:

The Language of the State of the Union Address

Political Analysis of the SOTU from across the spectrum:
NY Times: In State of the Union, Obama Sets Ambitious Agenda
Politico: State of the Union Fact Check
National Journal: New Page, Same Obama
Ezra Klien: The Most Important Sentence in SOTU
David Frum: The Real Target of the SOTU – Hillary Clinton
Byron York: A Disconnected, Out of Touch, In Denial SOTU
Peter Baker: In SOTU, Obama Looks to Reset Goals

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Remembering Grandma Dollie

Monday, 10. November 2014 13:46

Grandma Dollie Young and Old

I delivered the below eulogy for my Grandma Dollie at her funeral, Thursday, October 30th, 2014. She was 93 years old.

They say that smell is the sense most directly linked to memory. It should come as no surprise then, that some of my most indelible memories of Grandma Dollie are wrapped up in the scents of her kitchen in that little red farmhouse on the hill. From the delicious skillet-sized pancakes, to the pan-grilled cheeseburgers, to the cinnamon fragrance of her applesauce pieces, nothing calls to mind those carefree days of summer with Grandma better. Passing thoughts of any one of these brings me back to that special time in that special place with that special lady.

Grandma Dollie’s house was summer. There was little in my boyhood that I looked forward to more than summer vacation at Grandma’s.

As a boy, your life is governed by what you cannot do. No, you cannot stay up past your bedtime. No, you cannot watch TV. And no, you cannot fling mud at your younger brother. That is, except at Grandma Dollie’s.

There you could find, for all too brief a moment, an escape from the bondage of childhood.

Want pancakes for dinner? Grandma Dollie would make them.

Want to watch Mr. Ed on Nick-at-Nite well past your bedtime? Yup, you could do that at Grandma Dollie’s.

Want to spend the night camping out in the old green pop-up tent? Grandma Dollie was in! She would thrill her young audience with spooky ghost stories. “”He’s cooommming up the third step!”

Want that transformer you’ve been pining for? Why Grandma Dollie would take you to the store in that yellow stick shift bug of hers and buy it for you. You didn’t have to ask twice.

And should Grandpa Gooch choose to lay down the law, Grandma Dollie would deflect with an “Oh, Bob” and that was the end of it.

It seemed every wish or whim could be fulfilled in Grandma’s little red house. Where one day you could spend the entire afternoon watching cartoons and the next splash the day away with cousin Kenny at the pond. It was a place where the word “no” simply didn’t exist.

What wasn’t possible at Grandma Dollie’s? If there were limits, we were blissfully unaware. It was freedom – pure freedom. As close to Heaven on Earth as this eight year-old boy could get.

Now, if someone took exception, Grandma would be quick to remind you, it is every grandmother’s God-given right to spoil her grandchildren. I’m grateful to Grandma Dollie for loving and trusting us enough to indulge all of us in that way.

In Mark 10:15, Jesus tells us “…anyone who will not receive the kingdom of God like a little child will never enter it.” Grandma Dollie lived the wonder-filled child-like love Jesus commanded. I know this because of her smile – her magnificent, contagious grin.

I saw it when she met her great-grandson William.

And for a moment, it felt like summer again and we were back in that little red farmhouse on the hill.

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Did Michigan Trigger a Constitutional Convention?

Wednesday, 2. April 2014 10:47

Constitutional Convention

From Ed Morrissey at Hot Air, an interesting blurb on the possibility of Michigan having triggered a Constitutional Convention. The state legislature signed on to a call for a federal balanced budget amendment. The relevant portion of the Constitution is Article V, which provides for two methods of constitutional change – the normal amendment process (where we have seen all of the changes to the Constitution come from), and a constitutional convention. A constitutional convention is triggered when two-thirds of the states call for one — it isn’t clear whether this has actually happened (some states have rescinded their call – which may or may not be allowable under the Constitution), or what would be the result if it did, but it is fascinating to consider. A Constitutional Convention has never been called in all the years since the Constitution of 1789 was adopted.

Noted conservative pundit Mark Levin proposed a constitutional convention in his new book.

George Will suggests amending the Constitution to control federal spending.


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Game Theory & Russian Expansion

Monday, 17. March 2014 10:09

Obma vs. Putin

With the ouster of the Russian-favored Ukranian President Viktor Yanukovych in a mass protest over his decision to affiliate with the Russian Federation rather than the European Union, Russian President Vladimir Putin has seized the opportunity to essentially claim the Crimeian pennisula, justifying Russian troops in Crimea on the transparent excuse of defending ethnic Russians, who constitute a majority in Crimea. Over the weekend and under the bootheel of a Russian occupation, there was a referendum in Crimea to secede from the Ukraine, which “passed” overwhelmingly. The United States has condemned the Russian agression and denounced the vote as illegal.

Tyler Cowen discusses this foreign policy crisis using game theoretic concepts. Specifically those of credibility, self-interest, and credible threats, i.e. nuclear deterence. Of particular interest is his discussion of tipping points – are we at a tipping point in foreign policy…where the world shifts back to a footing of greater violence to resolve conflicts? A question worthy of consideration, and game theory can help us better understand how this plays out in the real world.

Pointing out how the absence of a nuclear determence (Ukraine gave up its nuclear missles post-Cold War in a pact with Russia and the US that was supposed to ensure Ukrainian territorial integrity), and the lack of US credibility encouraged Russian aggression in the region. Cowen believes market forces may serve as a more effective deterent to Russian imperialism than it has in the past, given that the Russian economy is more tied to the global economy today (particularly through its oil and gas exports). He further argues that weakness in this particular instance may not undermine US credibility to a large extent, given the tenuous nature of our interest in the region. However, he ominously noes: “Still, there may be a net loss of credibility, perhaps a serious one, when the world is uncertain where American self-interest lies.”

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The Wages of Office

Thursday, 20. February 2014 12:16


I mentioned in class a pictorial of presidents before and after their terms of office. Below is a link to presidential aging from LBJ to Barack Obama. Hat tip to student Gabriel Sigler for finding the link.

Time Magazine’s How Presidents Age in Office


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Obama’s Presidential Character

Friday, 18. October 2013 9:25

Angry Obama

When examining the nature of the presidency, we have discussed the importance (or lack there of) of presidential character — the personal and psychological characteristics of the men who have served in the office. In the course of that discussion, we assessed and criticized the most famous (infamous?) effort in that vein: James Barber’s “Presidential Character,” which schemes presidential character in a two-dimensional (four category) typology. One dimension is active/passive, assessing essentially whether they are looking to use the office to accomplish political goals, and the other dimension is positive/negative, essentially refering to their personality (dour and tending toward paranoia versus optimistic and cheery). One of our criticisms of the application of this scheme to presidents by Barber is that it suffers greatly from confirmation bias –tending to rate presidents in the ‘good’ categories based on partisan disposition rather than an objective assessment of their character. See, for example, John Dean’s effort to place Mitt Romney in the Active/Negative category along with George W. Bush. The scheme also suffers from “backfitting” — i.e. identifying bad characteristics with failed presidencies (Nixon) or those which ended badly (LBJ) and identifying good characteristics with those that were successfull (FDR).

All that said, a new article at the National Interest looks at President Obama’s presidential character and attempts to place him in the typology based on his behavior in office over the past five years. In the author’s view, President Obama belongs in the Active / Negative category — the ‘worst’ category for presidents.

Here he makes the case that Obama belongs in the Active category:

He took office with big ambitions and a manifest resolve to change American society in very significant ways. This was manifest particularly in his Affordable Care Act, designed to transform the way we dispense health care in America and increase federal intrusion into a sixth of the current economy (projected to be 20 percent of the U.S. economy by 2020). And he was willing to do this without a single opposition vote, which reflected an almost breathtaking political audacity. His energy bill represents another reflection of his ambitions, and multiple actions in the regulatory realm (some of questionable constitutional validity) reflect also Obama’s preference for America as a European-style social democracy. Since the country has generally shunned such a course since the early years of the New Deal and a brief spurt of federal activity under Lyndon Johnson, Obama’s presidential temperament clearly falls into the Active category.

And here he makes the case he belongs in the Negative category:

But is he a Negative or a Positive? The Positive presidents relished the job and the grand necessity to move events by persuading, cajoling, bargaining with and perhaps occasionally threatening other players in the political arena. The great Active-Positive presidents all had fun in the job. They showed a zest and enthusiasm that was infectious, not just with the American people but, more significantly, with members of Congress.

We sure don’t see any of that with Obama. Edward Klein, a former New York Times Magazine editor and author of a book on Obama called The Amateur, has written that Obama “doesn’t learn from his mistakes, but repeats policies that make our economy less robust and our nation less safe.”

Do we see any presidential zest or political joy in this chief executive? Hardly. He seems always stern, beset, frustrated and angry. It’s as if he expects the opposition to join him in whatever he wants to do for the simple reason that they should want to make his life easier. After all, he’s the president.

Here’s how Barber describes the Active-Negative: “…relatively intense effort and relatively low emotional reward for that effort. The activity has a compulsive quality…His self-image is vague and discontinuous. Life is a hard struggle to achieve and hold power, hampered by the condemnations of a perfectionistic conscience. Active-negative types pour energy into the political system, but it is an energy distorted from within.”

Nothing illustrates this more starkly than Obama’s insistence on shirking his responsibility as president to lead the way out of Washington’s increasingly dire fiscal deadlock, with the government partially shut down and a possible financial default on the horizon. His political petulance is so far from the Positive traits, as defined by Barber, that his categorization as an Active-Negative is unavoidable.

What do you think? Does President Obama belong in the Active/Negative category?

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Tuesday, 21. May 2013 13:03

Albert Pujols Schadenfreude

Joe Posnaski talks about why Albert Pujols doesn’t matter anymore.

Albert Pujols is currently hitting .241 for the Angels. Schadenfreude, sweet Schadenfreude.

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Gay Marriage & Standing

Wednesday, 17. April 2013 13:57

As we discussed in class, standing (or standing to sue) means that the people who have brought the case are the ‘right’ people (parties with an actionable dispute) and are in the ‘right’ jurisdiction. A key issue in the California Prop 8 (which defined marriage as beetween a man and a woman in the California Constitution) is whether those who brought the suit have standing. They are not the state (CA abandoned defending Prop 8 in the early stages of the case) and thus the Court could “punt” on this issue by ruling on standing rather than on the substantive issue of whether gay marriage is protected by the US Constitution. A roundup of the Gay Marriage case (Prop 8) and the issue of standing:

Could Standing Stand in the Way of the Gay Marriage Decision?

Justices Flirt with Throwing Out Prop 8 Case

What’s Standing in the Way of Gay Marriage?

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Habemus Papam!!

Wednesday, 13. March 2013 13:52

Viva il Papa!

We have a new pope!

Pope Francis I is the son of Italian immigrants to Argentina.

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Coolidge & Aggrandizement

Monday, 11. March 2013 11:23

When we discussed the institution of the presidency, we defined the institution’s evolution in terms of aggrandizement – the accumulation of responsibility. We noted 10 presidents who had contributed to the expansion of the office over the course of American history.

Of course, contributing to aggrandizement doesn’t necessarily make a president ‘great.’ Indeed, it may not be a ‘good’ thing at all. Amity Shales offers us an alternative conception of ‘greatness’ for presidents in her depicition of Coolidge as “The Great Refrainer.”

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Close, but no cigar…

Thursday, 22. November 2012 14:28

President Obama won pretty much the same number of electoral votes in 2012 as he did in 2008. However, this fact masks the significant drop in support for Obama across the board in the country. As the below map illustrates, Obama lost support in almost every state. He suffered his biggest drops in support in the West/Northhwest part of the country, excepting the Left Coast. Obama picked up votes in only 5 states, and only in Alaska was it a substantial improvement.


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It was 2004 afterall…

Wednesday, 7. November 2012 10:26

I’ve updated the figure from my 2004-2012 comparison post here. Note that Obama converges on the Bush line 2 days before the end of polling, while Romney converges on the Kerry line the final day of polling. Oddly, and reflective of the national poll “miss” of the election, the RCP average understates Obama’s number by about a percentage point. On election night, Obama underperformed Bush by about 0.7% (50.7% to 50%) in the national popular vote, not the -1.6% underperformance predicted by the RCP average. Either way, this election tracks the 2004 election results fairly well. While Romney outperformed Kerry substantially in the first three weeks of September and the middle of October, he falls back in line with Kerry in the final week of the election. And concomitantly Obama was well underperforming Bush through September and into October, but rallied in the later part of October to nearly match the Bush final tally. Lesson? I guess don’t nominate grey-haired, lanky, white politicians from Massachusetts if you want to beat an incumbent president in a down economy. ;)

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Second Term

Tuesday, 6. November 2012 23:16

Looks like those state polls turned out to have it right afterall. Congrats to President Obama.

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The Trouble with Bellweathers

Tuesday, 6. November 2012 3:56

Is they are…until they aren’t. Still, bellweather counties in NH and Ohio lookingly marginally good for Romney.

bellweathers throughout history

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2012 Election Predictions

Monday, 5. November 2012 13:29

My real prediction on the presidential election is “too close to call.” Models of the election that look at economic factors tend to predict a Romney victory, while those that look at political factors (incumbency in a 1st term party control presidency, approval ratings, likeability ratings, etc.) tend to predict an Obama re-election. There is a noticable divergence between state polling (which suggests a 1-2 point lead for Obama in swing states) and national polling (which tend to show a tie or 1-2 point lead for Romeny) that cannot be reconciled by random error — there MUST be systematic bias in one of the two sets of polls. I don’t know which, but I’m more inclined to go with the national pollsters (Gallup, Rassmussen, Pew, Battleground, etc.), since they have more of a track record in polling presidential elections. That said, here are my fearless predictions:

PRESIDENTIAL: Romney 52%; Obama 48% | Romney 280-300+ EC
SENATE: Republicans +4 (51/49 R to D Caucus)
HOUSE: Republicans +5 (246/186 R & D)

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