The Rule of Law in Action

The main reason why you want to have clear election laws before you come to a crisis is because at the time of crisis it is almost impossible for us to avoid looking at whether or not the law will help or hurt our preferred candidate. If you are permitted to change the law midstream, you won't be able to stop yourself--you'll make the rule in favor of your candidate. 

In 2004 Massachusetts had a very clear rule about replacing its Senators.  If a vacancy came up, the governor appointed a replacement to fill out the term.  For various reasons, the voters in  Massachusetts decided at the time to have a Republican governor to balance their Democratic legislature.  When Kerry ran for President, the legislature decided that they didn't want to allow the governor to appoint a replacement if he should win.  So they decided that a special election would be mandated in case of a vacancy.  The governor suggested that he be allowed to appoint an interim Senator between the time of the vacancy and the time of the special election.  But the legislature was firm, no Republican governor would be permitted to appoint a Senator even for a short time.  The replacement would be by special election only.  (This crisis was unnecessary of course.  Kerry could have stepped down from his Senate seat and allowed another Democrat to very likely win).

A mere five years later, Kennedy's death has created a vacancy for his seat in the Senate.  The special election has been scheduled for January.  But suddenly that isn't good enough.  So they have passed a new law allowing an interim appointment.

I'm not sure why they didn't avoid this problem for the future by drafting it as "Democratic Party governors shall have the power to appoint replacements to the Senate, Republican governors shall not."  Surely that represents the will of the people better...

Would that be anything wrong with such a law? 

Comments

[publius]

Seb - do you mind adding your name under title? Just to avoid confusion...

Oh, and you're wrong of course. :)

[publius]

More substantively, I see your point, but I'm not sure I buy the criticism here. I mean, the state of Massachusetts voted overwhelmingly for a Democratic Senator (and is itself very Democratic).

IN 2004, it was actually protecting the will of the people i'd say.

Today, it's more difficult, granted. But still, they're not thwarting the public will. They're ensuring that they have 2 democratic voices (which is what they voted for) at a key time.

Again, I see the objections, but I don't think they're exactly thwarting the will of the public here.

[CCarp]

Thwarting the will of the public is, in important ways, at each margin, the point of the rule of law.

I would support a state constitutional provision making changes to election laws effective only after the next cycle. But if there isn't one, all you've got is jawboning (or tut-tutting, depending on one's preference), and that ain't the rule of law either.

[RogueDem]

Do you think stopping the recount in Florida and the subsequent ruling in Bush v. Gore represented the will of the people? However, it was the rule of law and Gore disagreed with it and abided by it.

But your sense of umbrage in this instance is duly noted.

[dj]

Yeah, I dunno about this one. Someone (Yglesias?) pointed out that in states with one-party rule, this kind of thing is inevitably going to happen. See also redistricting.

You could have a law saying that the governor has to appoint someone from the same party as the ex-senator. But a Republican governor might just choose the most conservative Democrat they could find, and vice versa. Maybe require the choice to be approved by some fraction of the state senators of that party.

At least the special election is soon. What if Blagojevich had appointed himself?

[John in Nashville]

In the history of American politics, two men have been nominated by five separate national conventions of a political party. Each is the central figure of his party during the twentieth century.

I remain proud of my party's five-time nominee.

Sebastian, are you proud of Richard Nixon?

[Lighthill]

Speaking as a Massachusetts resident:

Despite how stupid this is, it _is_ the will of the people. Generally speaking, MA likes to elect Republicans for governor pretty often, especially when we think that the legislature has fallen to pieces. If I'm counting right, then over the last 50 years, we've had Republicans as governor for 22 of them.

But we don't really seem want Republican senators these days; we haven't elected one since Edward Brooke.

So assuming that what a majority of voters actually want is to be able to elect Republican governors sometimes, but not wind up with an appointed Republican senator... how can they achieve this?

[Ginger Yellow]

I have to agree with Sebastian that this whole shenanigans is vey unseemly and not great for the health of the Republic. It's not as bad as partisan redestricting, but it's pretty bad. But then I've long been in favour of a constitutional amendment to harmonise the rules for electing/appointing senators among the states (along with standard federal rules for all elections to federal positions).

[liberal japonicus]

Why don't they get Orin Hatch to write the law.

[Elvis Elvisberg]

For any state, regardless of partisan makeup, holding an election to replace a senator seems to me to be preferable, by any democratic theory, to the governor appointing someone.

While the special election is being set up, it seems to me to be preferable for that state to have an interim senator, simply so the state doesn't go without representation during that time.

It was foolish for the Massachusetts legislature to wait until now to get to that state of affairs. But now we're there, and that is nice.

[tyronen]

They could simply require the governor to choose an interim senator from the same party as the old senator, as a few other states do.

[Anthony Damiani]

Actually, I think this system-- a temporary appointment coupled with a quick election-- is pretty good, though I'd prefer the temporary appointee be required to be of the same party as the old senator (ideally, they rather than the governor would do the selection) and required not to run in the special election.

Naturally, they shouldn't have had such a stupid rule to begin with, but we are where we are.

It IS calvinball, which is unfortunate. But it's legal, it reflects the will of the people, and the end result is a saner, fairer system.

[russell]

The new law is probably better than the old one. But the legislation in both 2004 and now are baldly partisan.

I agree with Lighthill, IMO it also accurately reflects the will of the people in MA.

And I agree with Ginger Yellow that horsing around with the law, even if you're the guys who are tasked with making the law, undermines a basic sense of fairness.

[Fair Economist]

Massachusetts has changed the replacement rules twice to give the people of their state the representation they want. In 2004 they wanted Kerry if he didn't win the Presidency (not a generic Democrat). Now they want somebody to vote now. I don't have a problem with people getting the representation they want. If the changes were not in accord with the wishes of the voters, then the state elected officials would pay in the next election. The rules of representative democracy are a means, not and end, and in this situation things are working just fine.

[bobbyp]

Gosh. Seb is upset because the Will Of The People can be fickle. Obviously, democracy should be cast aside.

Somehow I missed his outrage during the Bush administration when they consciously tried to make over the federal government as the praetorian guard for the GOP's "permanent majority".

I also eagerly await his new found love for the filibuster in the U.S. Senate, nay, no more "give us an up or down vote" now!

Conclusion: Seb is merely engaging in partisan weeping, because the GOP doesn't run things in Massachussetts.

[Brainz]

Amendment XVII:

... When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct. ...

[Tyro]

If you are permitted to change the law midstream, you won't be able to stop yourself--you'll make the rule in favor of your candidate.

As far as I can tell, the rules for changing a law, as outlined in the the Massachusetts state constitution, say that for a law to take effect, it must be passed by the State House, the State Senate, and signed by the governor. To my knowledge, this is the process that has occurred, so I am wondering what the problem is.

[Dantheman]

Breaking longtime silence to comment on this.

Sebastian, I recall from several years ago a thread where you advocated that California change its House apportionment rules in the middle of the decade to go to a more neutral system. I pointed out that it simply seemed like a Republican seat grab, not much different in effect than the then-recent Texas redistricting, and one I would oppose on principle.

I don't support this action by Massachusetts. How do you square your support for what California proposed with this?

[Plinko]

As far as I can tell, the MA legislature in 2004 enacted a rule to try and align the selection of interim Senators with their idea of the people's will. Unfortunately, they enacted a poorly-constructed rule. Today, crabby with the negative side effects, they're revising the rule to one that is, we hope, more sensible.

I've having trouble with seeing the problem here outside of stupid actions in the past, but this kind of action is exactly the kind of corrective action we should applaud. Are you suggesting we punish electorates by preventing legislatures from revising poorly-constructed laws?

[Free Lunch]

Laws should be designed to be something you are willing to live with for a while. Sure, they may need to be fixed at times, but the combination of the two laws in succession shows a lack of seriousness in Boston.

As others have mentioned, requiring the Governor to appoint the temporary senator from the party the previous senator was from is a very good start. It might also be improved by saying that the appointee cannot run for the seat.

On the other hand, I would like the Democrats in DC to get a little partisan rather than being afraid of their own shadows.

[wj]

What am I missing here? It would seem that the simplest way for the Massachusetts legislature to achieve what they want is just to revert. If there is a vacancy, forget about the direct election of Senators; simply have the state legislature elect a replacement. (Or an interim replacement, if you want to fudge a little.)

[Mr Furious]

I don't have a problem with people getting the representation they want. If the changes were not in accord with the wishes of the voters, then the state elected officials would pay in the next election.

This.

At first glance, I thought this was horseshit, and that the Dems should lie in the bed they constructed. But the more I thought about it, the more I came to the conclusion that these lawmakers are ostensibly working towards the desires of the electorate, and if they fail, they will be punished.

The fact that Kennedy's life's work might hang in the balance—and that his opponents quite probably stalled the vote hoping he would die before getting to cast it, was all I needed to cross over. The fact that Massachusetts would be shorted his vote between now and January is too cruel an irony.

The new law is better than the old one anyway.

[Marty]

This is a predictable, rational outcome of living in the only state that voted for Michael Dukakis. Even Republicans in MA only put up token opposition. That Dukakis is being considered to fill the spot is the entertaining part of it.

We are the only state that has made a real run at universal healthcare too (better or worse). That nasty Republican Governor got that passed so thank goodness he's gone so we can give the appointment power back to the Governor. :)

[JustMe]

the only state that voted for Michael Dukakis.

I seem to remember Dukakis winning about 10 states in 1988, one of which was West Virginia (!).

[RogueDem]

Quite a few states voted for Dukakis when he ran for President, McGovern however was a different story.

[Marty]

" seem to remember Dukakis winning about 10 states in 1988, one of which was West Virginia (!)."

I stand corrected.

[hairshirthedonist]

I'm not sure why they didn't avoid this problem for the future by drafting it as "Democratic Party governors shall have the power to appoint replacements to the Senate, Republican governors shall not." Surely that represents the will of the people better...

Would that be anything wrong with such a law?

I don't think such a law would represent the will of the people, because even partisan democrats would find a codification of partisanship distasteful. The law, in itself, would be partisan. That goes well beyond passing a law that favors one party over another in certain circumstances but not others - one that, in itself, is party-neutral.

The law you suggest, Sebastian, if left on the books in the form you suggest, would favor one party over another in perpetuity. That would be quite different from a law that suited a given party at a given time, but not necessarily later.

The simple fact that the Democratic Mass legislature needed to do something, in accordance with the state constitution, mind you, makes the 2004 law and the recently passed one different. There may come a time when this new law doesn't favor Democrats. That may be okay when such a time comes or it may not, depending on who's in power and by what margin. If not, legislators will be forced to do something and live with the political consequences, if any.

I can understand not liking what they did, but it's simply partisanship at work and not principle, really, unless they somehow broke the law in changing the law or somehow sheilded themselves from potential political consequences. It was all done in broad daylight in accordance with the law. You don't have to like it, but so what?

[Cyrus]

This thread is relevant. Commenters point out that Wyoming, of all places, might have the ideal way to handle these situations: replacement Senators are appointed by the governor from a short list provided by the party of the departed Senator.

How do you square your support for what California proposed with this?

IOKIYAR, probably.

[Jay Jerome]

marty: " That Dukakis is being considered to fill the spot is the entertaining part of it."

If he's appointed will he wear a tank helmet at the swearing in ceremony?

[JustMe]

Thwarting the will of the public is, in important ways, at each margin, the point of the rule of law.

Yes, we are ruled by laws, not men. Carping about how something violates the principle of "the rule of law" when the issue in question is about an elected legislature changing a law seems a little disingenuous. The "Rule of Law" means that we accept that the newly appointed Senator is the legitimate representative of MA. No laws were violated. No dirty deals were done. Heck, no traditions were even subverted in order to gain some kind of partisan advantage.

[Jay Jerome]

Proposed Changes To Offical Rules Of Major League Baseball For World Series Play:

Rule 9.06
Depending on which team is the Home Club umpires shall have the authority to disqualify any player, coach, manager, or batboy, depending on the applause level or booing level of the Home Club crowd, and will have the discretion to remove any such disqualified persons from the playing field while play is in progress if said umpire determines it is a reflection of the will of the fans.

All such disqualified persons shall leave the field immediately and take no further part in that game. They shall remain in the club house or change to street clothes and either leave the park or take a seat in the grandstand well removed from the vicinity of his team’s bench or bullpen.

In addition, home-plate umpires, in concurrent jurisdiction with the umpire-in-chief, may, in certain situations, waive the three-strikes-and-you're-out requirement for Home Club batters, to protect against thwarting the public will.

[liberal japonicus]

Dantheman, nice to see you out and about. Was the thread you were referring to this one?

[Bernard Yomtov]

As another MA resident, I'm largely with lighthill on this. It's inconsistent and partisan, and looks dumb. Still, it gives us the Senator we are entitled to at a crucial time, and assures that that Senator will be of the party vastly preferred by MA voters for the job.

At least, unlike gerrymandering, the purpose is not to deny representation. Given the general idiocy of the structure of the Senate and its rules I can't get too upset over this.

[KCinDC]

Jay, I think you've overlooked an important difference between baseball games and determination of who holds elected office. Might there be a difference in the relevance of the support of the people in determining the winner between the two cases?

[bc]

Seb:

Is there any ex post facto aspect to this? I would think any law passed after Kennedy's death and the actual creation of a vacancy is unfair because you are changing the rules midstream. Changing the rules before a vacancy is created doesn't have the same problem, at least to my way of thinking.

[Jay Jerome]

"Jay, I think you've overlooked an important difference between baseball games and determination of who holds elected office."

Yes, one is an institution with fairly consistant rules generally enforced impartially; the other an institution of government by rationalization.

[russell]

That Dukakis is being considered to fill the spot is the entertaining part of it.

If he's appointed will he wear a tank helmet at the swearing in ceremony?

Yeah, Dukakis, that earnest little do-gooding technocratic dweeb. Ha ha ha, what a clown!

It's worth remembering that Dukakis ran against a campaign orchestrated by Lee Atwater, world heavyweight champion ratf***er, who promised to "strip the bark off of him".

And so he did.

Well, Atwater's dead, and maybe Dukakis, one of most fundamentally decent and fair-minded people I've seen in public service, will be a Senator, however briefly.

Works for me.

[Marty]

"Well, Atwater's dead, and maybe Dukakis, one of most fundamentally decent and fair-minded people I've seen in public service, will be a Senator, however briefly.

Works for me."

Russell, I am not sure he will actually get it, but he would be an appropriate short term replacement. It is still entertaining to watch our politicians at work.

[JustMe]

Marty, just kind of curious, though-- you describe Dukakis getting appointed as "entertaining." Can you explain what is "entertaining" about it? I mean, specifically, perhaps in comparison to Bennett getting appointed to Salazar's seat in Colorado.

[Jay Jerome]

russell sez: "Dukakis, one of most fundamentally decent and fair-minded people I've seen in public service"

Yeah, and back then I supported him (with money and volunteer time -- mostly because of his stand against compulsory reciting of the Pledge of Allegiance in classrooms), but, really, he turned out to be a dweeby presidential candidate and in retrospect probably would have been a 2nd rate Prez if elected.

[efgoldman]

I have known Mike Dukakis for more than 40 years, since he ran his first election for state rep the year I turned 21 (the ancient times, young 'uns, when that was the voting age). He knocked on my door one night to ask for my vote, and I gladly gave it to him then and every time that I could (I didn't live in his district when he ran for state Senate) since.

He is, as noted, a very, very smart guy and one of the most honest, sincere and nicest people in politics. He also, with Lee Atwater's help, ran one of the worst presidential election campaigns in my memory. His problem was that he couldn't believe the American people could possibly be dumb enough to buy what Atwater was selling. Its still a failing among Dems, see this summer for example.

He will make a great interim Senator, he will do everything he can to get the best health care bill he can get.

And Seb, did you complain about what Tom The Exterminator DeLay did about Texas re-apportionment? I thought not.

[tgirsch]

Anthony D:
I'd prefer the temporary appointee be required to be of the same party as the old senator (ideally, they rather than the governor would do the selection) and required not to run in the special election.

Agreed.

Cyrus:

replacement Senators are appointed by the governor from a short list provided by the party of the departed Senator.

Coupled with Anthony D's caveats above, also agreed.

[Jay Jerome]

efgoldman sez: "And Seb, did you complain about what Tom The Exterminator DeLay did about Texas re-apportionment? I thought not."

So if you didn't complain about someone getting shot on Tuesday, you can't complain about someone else getting shot on Wednesday?

And if you don't criticize DeLay's ludicrous Dancing With The Stars performance now you can't criticize any other tippy-toe politicians who make fools of themselves down the road? Even if it's Sarah Palin doing the Cha Cha Cha?

[arithmoquine]

I'm surprised to see so many implicit defenses of the Massachusetts' legislature's past action. I do think the change to the law now essentially corrects the original incorrect action. There might be slightly better solutions. For example, I'm not sure exactly why the appointee cannot run for the position. I assume it is to deny the advantage of incumbency to one who attained the office without being elected. As a believer in democracy, I am against unearned advantages of this sort, but our system is so rife with them, that I'm not certain how significant this one is compared to all the others. Conversely, denying the appointee the chance to run for the office does create the problem that you might be prevented from appointing the best candidate since the best candidate might easily be one who would want the office. And, while incumbency is a big advantage, it may be less of one for someone only serving a partial term. Nonetheless, the current change in the law seems appropriate.

However, I do not understand defenses such as "That's just the way things are," or "That's politics," or "Tom Delay did it." (Tom Delay shook his ass on Dancing with the Stars, does that mean you should do it too?) That's just not a relevant defense of the normative claim that they should have passed such a law.

I do understand that one might object to someone from the opposition party nominating the replacement since the public voted for a candidate for one party. However, the public also voted for the Governor from the opposition party, so, unless you think that people prefer one party in the Senate but prefer the opposition for the governorship, the argument is not strong here either. In our system, we vote for the individual, not the party, so it is not obvious (although likely) that the preference carries over to other members of the same party. Perhaps this is a slight reason to require that the replacement come from the same party, but that, obviously, was not the previous law.

Finally, I do not understand the defense that whatever law they passed must be acceptable because it passed constitutional muster. The state legislature did not violate the rule of law because they changed the law legally. Certainly this is true, but it does not follow that they should have done so. The complaint is not that they broke the law in changing the law, but that they changed the law (perfectly legally) in a way that was motivated purely for partisan motives and not from any consistent principle. If one thought it was wrong for Delay to redistrict Texas for purely partisan purposes even if it was legal, then one should equally object to the Mass legislature's previous action. That's the complaint, and if we expect some principle or consistency from our elected leaders, it is a good criticism.

I had not heard of the previous partisan by the legislature, and I disapprove of it, but at least they have remedied their error even if they did it primarily for partisan reasons.

[Turbulence]

I'm surprised to see so many implicit defenses of the Massachusetts' legislature's past action.

Here's an explicit defense: the legislature concluded that Romney was an untrustworthy lying fink would happily sell out the interests of MA residents if it meant giving political advantage to Republicans on the national stage. They couldn't pass a law removing the governor's selection power just for Romney because that sort of thing is just not done. But given Romney's performance since then, I think we have ample proof that he's a lying fink who cares not one whit about MA residents. If Romney had been a more trustworthy governor and hadn't spent months slagging MA, then this argument wouldn't hold up, but since those conditions don't hold....

As a believer in democracy...

Um, what exactly are the rest of us? Believers in dictatorship? Believers in republican governance (note the small r)?

Conversely, denying the appointee the chance to run for the office does create the problem that you might be prevented from appointing the best candidate since the best candidate might easily be one who would want the office.

Repeat after me: there is no one "best" candidate for a political office. There is no unitary ranking that gives every possible candidate a score on their "goodness" for office. Actually, there are many such rankings and people disagree about them. For any office, there are lots of people who can do a great job available in the country. However, it is impossible to say that any one candidate drawn from that set is "better" than all the others. If you disagree, please name the "best" candidate and supply evidence indicating that everyone in MA agrees with your judgment.

Sorry to rant, but this same muddle headed thinking pervades our discourse about Supreme Court nominees and I think it is quite harmful.

[Marty]

"If one thought it was wrong for Delay to redistrict Texas for purely partisan purposes even if it was legal, then one should equally object to the Mass legislature's previous action."

I have seen several references to this but none to the redistricting in Illinois to ensure Obama's election. Interesting that I find most of this as political "business as usual" (meaning I am something bad, I am sure) but it happens both ways.

Dukakis potential appointment is only entertaining to me, btw, from watching the, also normal, quid pro quo of MA politics. There are a number of other behind the scenes candidates that could be handed some visibility for the future instead of a clearly retired from politics Dukakis.

Dukakis was very active helping the Gov get elected and, having a fine career in academia, really doesn't need the appointment.

However, as a temporary replacement, I see him as a decent choice for those reasons.

I just think others will feel they could have been boosted into a little more prominence, (potentially for a run for Governor, oh yeah, could be a problem).

[KCinDC]

Marty, what redistricting are you talking about? The only redistricting during Obama's state senate career I've found mention of was a normal post-census redistricting in 2001.

DeLay's redistricting was objectionable because it was not a normal redistricting triggered by a census but was a mid-decade power grab.

The 2001 redistricting "to ensure Obama's election" (in which Obama was hardly the focus of the redistricting -- you make it sound like part of the conspiracy to make him president that included the planted birth announcement) was no different from what goes on every 10 years in most parts of the US, as far as I can tell.

[Marty]

"DeLay's redistricting was objectionable because it was not a normal redistricting triggered by a census but was a mid-decade power grab."

This is a thin line. Redistricting is normal but I did find this interesting

Obama’s former district had been drawn by Republicans after the 1990 census. But, after 2000, Illinois Democrats won the right to redistrict the state. Partisan redistricting remains common in American politics, and, while it outrages a losing party, it has so far survived every legal challenge. In the new century, mapping technology has become so precise and the available demographic data so rich that politicians are able to choose the kinds of voter they want to represent, right down to individual homes. A close look at the post-2000 congressional map of Bobby Rush’s district reveals that it tears through Hyde Park in a curious series of irregular turns. One of those lines bypasses Obama’s address by two blocks. Rush, or someone looking out for his interests, had carved the upstart Obama out of Rush’s congressional district.

In truth, Rush had little to worry about; Obama was already on a different political path. Like every other Democratic legislator who entered the inner sanctum, Obama began working on his “ideal map.” Corrigan remembers two things about the district that he and Obama drew. First, it retained Obama’s Hyde Park base—he had managed to beat Rush in Hyde Park—then swooped upward along the lakefront and toward downtown. By the end of the final redistricting process, his new district bore little resemblance to his old one. Rather than jutting far to the west, like a long thin dagger, into a swath of poor black neighborhoods of bungalow homes, Obama’s map now shot north, encompassing about half of the Loop, whose southern portion was beginning to be transformed by developers like Tony Rezko, and stretched far up Michigan Avenue and into the Gold Coast, covering much of the city’s economic heart, its main retail thoroughfares, and its finest museums, parks, skyscrapers, and lakefront apartment buildings. African-Americans still were a majority, and the map contained some of the poorest sections of Chicago, but Obama’s new district was wealthier, whiter, more Jewish, less blue-collar, and better educated. It also included one of the highest concentrations of Republicans in Chicago.

“It was a radical change,” Corrigan said. The new district was a natural fit for the candidate that Obama was in the process of becoming. “He saw that when we were doing fund-raisers in the Rush campaign his appeal to, quite frankly, young white professionals was dramatic.”

from here

[Mr Furious]

That's interesting, Marty, but still part of the normal, post-census redistricting.

Apples and oranges.

[Hogan]

Rush, or someone looking out for his interests, had carved the upstart Obama out of Rush’s congressional district.

So it wasn't to "secure Obama's election" to an office he never ran for after 2000; it was to secure Rush's reelection.

[Marty]

"Apples and oranges."

It's all fruit.

[tgirsch]

"It's all fruit."

Yes, and murder and jaywalking are both "crimes."

[Marty]

"Yes, and murder and jaywalking are both "crimes.""

But neither the apples or oranges is a crime.

[Dantheman]

lj,

"Dantheman, nice to see you out and about. Was the thread you were referring to this one?"

The very one.

[Sebastian]

Dantheman, If that is thread you are talking about, I'm not sure how it applies. In that I was advocating that voters in California decide to reform the gerrymandering process through a forward looking initiative.

Here, the state legislature is deciding to give or take away an appointment power based on the political affiliations of its governor.

I'm not really sure which similarities you think are pertinent. Is it that they both change the rules? I'm not against changing election rules. I'm against transparently flip flopping them back and forth for political advantage.

I'm also not sure how the argument that the people of the state elected Democratic legislators means that it was the will of the people that the governor not appoint a replacement if he is a Republican, but should appoint a replacement if he is a Democrat. Didn't the people vote for the governor too?

The rest of the objections appear to be of the "helps my party so I don't care variety" which is exactly what I don't think is a legitimate defense for changing election rules.

[JustMe]

Having read through Marty's comments, at this point I'm convinced he just enjoys both being obtuse and annoying others. Everyone needs a hobby, I guess.

[Dantheman]

Sebastian,

"I'm against transparently flip flopping them back and forth for political advantage."

Then it's nice that you have changed your mind. Flip-flopping for political advantage remains my objection to changing the method of apportioning Representatives in the middle of the decade. I have no objection to doing it effective with the next census-based reapportionment. On the other hand, any changes made in the middle of the decade cannot be divorced from their political implications, and violate the same principles you believe Massachusetts is violating here.

[hairshirthedonist]

"I'm against transparently flip flopping them back and forth for political advantage."

Yeah, they should have done it in secret. ;)

[Marty]

"Having read through Marty's comments, at this point I'm convinced he just enjoys both being obtuse and annoying others. Everyone needs a hobby, I guess."

I don't really understand the obtuse part, I am annoying regularly. I agreed with your point

The "Rule of Law" means that we accept that the newly appointed Senator is the legitimate representative of MA. No laws were violated.

and then, as an aside, noted that there was some entertainment value to watching MA politics in action. Since I am not an ideologue by nature, I often annoy people on both sides by not being outraged at the common reality of politics. Re districting in Texas, Illinois and the change in law here are all equivalent events to me. None of them upset me much.

Hope that is less obtuse, while still possibly annoying.

On having a hobby, commenting here is certainly not my vocation so I guess that is accurate.

[RogueDem]

Calling the Texas and Illinois redistircting events equivalent when it is has been described above how they clearly differ could be construed as obtuse.

[Marty]

"Calling the Texas and Illinois redistircting events equivalent when it is has been described above how they clearly differ could be construed as obtuse."

I understand the difference, but it is still just politics. No one broke any laws, just like in MA no one broke any laws. I find the objections and rationalizations are typically predictable by partisan perspective.

[JustMe]

The weakness of this post is that it was entitled "the rule of law." Sure, one can argue that there are points to make about the issue, but Sebastian fumbled it right from the start by saying that this was an issue of "rule of law." There weren't any corruption or any dirty deals involved, and no one is calling into question the legitimacy of the process, or even lawmaking, which all seems to have been above-board and transparent. So Seb is free to argue what he wants to argue, but this isn't a "Rule of Law" or even a corruption issue.

[Sebastian]

The Rule of Law is about many things:

It is about predictability, so citizens can order their lives around the rules.

It is about treating similar situations similarly.

It is about providing a groundwork of nuetral rules which help people trust the system.

I didn't say what they did was *illegal*. I said it was against the rule of law. A dictator can do all sorts of things that are *legal* and capricious; they follow the form of the legal system in question, but tend to undermine the practical workings of the legal system and investing them instead in the dictator or party.

This is definitely about the rule of law. It is about treating similar situations differently based purely on the political affiliation of the person holding office. It is especially important to make representation and election rules beforehand, because of the enormous temptation to tilt them toward your side for temporary political advantage while doing long term damage to the political system as a whole. See also gerrymandering.

[arithmoquine]

Re: Turbulence response to arithmoquine.

No one has ever responded to a comment of mine on a blog before. Thank you. I'm so excited...

On the substance, however, I am a bit distressed. I am accused of muddle-headed thinking by suggesting that, "Conversely, denying the appointee the chance to run for the office does create the problem that you might be prevented from appointing the best candidate since the best candidate might easily be one who would want the office."

The problem with this thinking is, allegedly, that I am assuming that there is at least sometimes a single best candidate for office, whereas in fact there is no such thing. One wonders how anyone is to vote given that there is no such thing as a best candidate. Perhaps I should have added, "From among the options available"?

Perhaps I should repeat the quotation in full:
Repeat after me: there is no one "best" candidate for a political office. There is no unitary ranking that gives every possible candidate a score on their "goodness" for office. Actually, there are many such rankings and people disagree about them. For any office, there are lots of people who can do a great job available in the country. However, it is impossible to say that any one candidate drawn from that set is "better" than all the others. If you disagree, please name the "best" candidate and supply evidence indicating that everyone in MA agrees with your judgment.

Needless to say nothing I said implies that there is a "unitary ranking" or a strict set of criteria for goodness with which no one would disagree. Nor do I have the burden of showing which individual might meet such a standard to all objective readers. All I intended to imply was that one might exclude a candidate whom one would prefer given all the other contextual evidence because that candidate would want to run for that office. If you do not think that there is any way to choose a best, better, or preferable candidate given a limited number of options, I don't know how you vote, and I don't know how you could expect the governor rationally to name a candidate. The point is that some candidates are preferable to others given an indefinitely large set of criteria (about which some rational disagreement is possible), and that it is entirely possible that one such candidate might come out clearly ahead of the alternatives given those criteria (as, say, Obama might have come out ahead of Clinton, McCain, etc.), yet would be the sort of candidate who would want to run for the office. Indeed, I thought that was fairly likely since people who have the skills and ambition and who have put in the hard work to make themselves good candidates for such a job might want that job.

Alas, I used the word "best", since this is a blog comment and not a dissertation, and that is taken to imply some overly simplistic, muddle-headed mindset. It's nothing of the sort; I'm simply applying the same kind of reasoning we would all apply to our admittedly imperfect ordering of candidates in elections or similar contexts.

I find the substantive defense of the previous Mass legislature's action interesting. I am perfectly prepared to consider Romney an "untrustworthy lying fink" but I'm not sure that this defense is relevant. Surely Tom Delay thought the Texas Democratic party was made up entirely of untrustworthy, lying finks, but that would not have made his action justified. But, surely, Romney really is a fink, and those Dems were not. Probably, but I don't see that as justifying the change in the law. Maybe I'm just naive, but I think that legislatures should not be in the business of passing laws against individuals and their choices even if the consequences are ultimately for the good. I don't this could constitute an absolute prohibition, but it does set the bar for gubernatorial malfeasance fairly high.

As to the unnecessary snark, I will be gracious enough not to call attention to it.

[hairshirthedonist]

A dictator can do all sorts of things that are *legal* and capricious; they follow the form of the legal system in question, but tend to undermine the practical workings of the legal system and investing them instead in the dictator or party.

But, Sebastian, don't you think a dictatorship is a fundamentally flawed system of government, one in which the law has little meaning? Would you say the same about the system of governement in Massachusetts? I tend to believe that following the law in Massachusetts means a lot more than following the law in a dictatorship.

Regarding gerrymandering, that is something that disenfrachises voters. I'm not sure that removing the appointment powers of a governor is quite as oppositional to the spirit of democracy as gerrymandering. The new law in MA has no effect on the voters' ability to effect the representation they prefer in the next election as far as I can tell.

You still don't have to like it, of course.

[hairshirthedonist]

and why do my damned fingers always spell "government" as "governement"? I do that all the time. *&%*&^!

[Sebastian]

"But, Sebastian, don't you think a dictatorship is a fundamentally flawed system of government, one in which the law has little meaning? Would you say the same about the system of governement in Massachusetts?"

I didn't bring up dictatorship to directly equate the action with a dictatorship. I brought it up to illustrate that 'legal actions' are distinct from 'actions that violate the rule of law'. The rule of law is a meta-legal concept.

I believe that in general, the system of government in Massachusetts has legal meaning. I believe that in this specific instance, it acted against the rule of law by capriciously flip flopping the governor's appointment power based on the party of the duly-elected-by-the-citizens-of-Massachusetts governor. I believe that acting that way is corrosive to the rule of law, corrosive to trust in the law, and corrosive to the political institutions of the US. (Again, see gerrymandering).

I believe that a willingness to screw around with election and appointment laws on the fly (effecting current questions instead of future ones) is a really bad practice.

This is especially transparent, because in 2004 the exact same proposal (interim appointment, quick election after) was rejected by almost the exact same legislature.

[KCinDC]

I understand the difference, but it is still just politics. No one broke any laws, just like in MA no one broke any laws.

So no one can complain about anything unless the action in question is actually illegal? I'm not sure you do understand the difference, if you still think the Illinois redistricting -- which might be something that should be changed but is a perfectly common activity that happens in most of the United States every 10 years (and thus has nothing to do with Obama or Illinois specifically) -- and DeLay's Texas redistricting, which opened up the door to gerrymandering after every election.

Can you really see no grounds for objecting when people take unprecedented steps beyond the established boundaries of behavior (when those boundaries are lax enough as it is)? I guess it make sense considering your opinions of congressional Republicans and Bush.

[KCinDC]

in 2004 the exact same proposal (interim appointment, quick election after) was rejected by almost the exact same legislature.

If so, any legislator who voted differently then and now on that specific provision is a hypocrite. There are presumably plenty on both sides.

I'm finding it hard to get that worked up about this, though, because the 2004 law was an improvement over the previous situation (because it gave people an elected senator sooner), and the new law is an improvement over the 2004 one (because it avoids a long gap in representation).

Of course, Massachusetts residents' lack of a senator for several months is nothing compared to the complete lack of senators for all 600,000 residents of DC.

[Turbulence]

Needless to say nothing I said implies that there is a "unitary ranking" or a strict set of criteria for goodness with which no one would disagree.

I disagree. When you say that a restriction might prevent the best candidate from running, you are asserting that there exists a "best" candidate and there is consensus on this point. Are you not?

I think you're missing the distinction between individual and collective metrics. Of course voters individually decide which candidate is "best" -- but that doesn't mean that they all share the same metric for making that decision. Which means that if you eliminated any one candidate from candidate pool early on, you wouldn't significantly reduce the quality of the elected candidate. Yes, some voters would not be able to vote for their first choice, but in practice, for any given candidate there are many many people who would perform their job in an extremely similar manner.

All I intended to imply was that one might exclude a candidate whom one would prefer given all the other contextual evidence because that candidate would want to run for that office.

Let's say that I prefer candidate X. In my mind, X is the best. Do you think there exists a rational basis for asserting that there does not exist any other person Y who might perform the job in roughly the same manner as X?

I'm sure there are some people that insist that their preferred candidate is the only person on Earth who could possibly be acceptable, but I think those people are crazy and don't pay attention to them. Do you?

Surely Tom Delay thought the Texas Democratic party was made up entirely of untrustworthy, lying finks, but that would not have made his action justified. But, surely, Romney really is a fink, and those Dems were not. Probably, but I don't see that as justifying the change in the law.

Well, I think you can make an objective case as to the relative trustworthiness of a politician. Tom Delay is a criminal who appears to have some non-trivial psychological problems, so I don't think he makes a good reference point. A better test case might be Rod Blagojevich. If the IL legislature had decided to curtail his ability to appoint a Senator, I think that would have been a justifiable action. Even if the IL legislature was controlled by Republicans. Even though Blagojevich is a Democrat.

I actually think there are quite a number of Democratic politicians that are untrustworthy.

Maybe I'm just naive, but I think that legislatures should not be in the business of passing laws against individuals and their choices even if the consequences are ultimately for the good. I don't this could constitute an absolute prohibition, but it does set the bar for gubernatorial malfeasance fairly high.

Well, not everyone agrees with you. I mean, you haven't really made a case; all you've done is express an opinion.

As to the unnecessary snark, I will be gracious enough not to call attention to it.

I don't know what you're talking about but you don't seem very gracious. If you think I did something wrong, explain what it was. If you don't feel like doing that, then keep silent. But this passive aggressive game of alluding to unspecified wrongs has no place in adult conversation.

[Marty]

"Can you really see no grounds for objecting when people take unprecedented steps beyond the established boundaries of behavior (when those boundaries are lax enough as it is)? I guess it make sense considering your opinions of congressional Republicans and Bush."

I see, I see! I could say the same about many unprecedented things, I can also say that gerrymandering between census is not unprecedented. I suspect in the 200 years its been happening its not a unique event.

I could also say changing the succession ruless in MA based on what party sits in the Governors chair is unprecedented.

I just don't see that redistricting to benefit the party in power is any better or worse done off cycle than on cycle. It is still a blatantly political process.

Its all politics, the party in power wins some, the other party is disadvantaged. I suspect there are some Dems who are envious of Delays "coup", under their outrage. They would do it if they could.

It has next to nothing to do with my view of Republicans or Bush. If it did I would be incensed that my current home state was being so "sleazy". Those Dems just have no ethics... But I am not. We have a Senator, he will go to Washigton and I will agree or disagree with what he does. Then I will complain or not bsed on that.

[Dantheman]

Sebastian,

"The Rule of Law is about many things:

It is about predictability, so citizens can order their lives around the rules.

It is about treating similar situations similarly.

It is about providing a groundwork of nuetral rules which help people trust the system."

I agree entirely with this statement, and strongly agree with the importance of the rule of law. I just do not see how one can square it with your prior support for a change in the California apportionment rules in the middle of the decade, when that effort clearly violated the first and third of your statements, and would have violated the second had Texas not already changed its rules mid-decade.

[arithmoquine]

My comment that I would overlook the unnecessary snark was what is known colloquially as a joke. Perhaps you would prefer some happy-face icons. Specifically, it was a rhetorical device in which one does something while pretending not to do it. So, in fact, it was supposed to be funny because it was not in fact a gracious overlooking of unnecessary snark but an ungracious pointing out of unnecessary snark (that snark being the comment about my being democratic--there was really no point served by asking whether I believed in democracy or not). Haha.

I did, of course, assume that you had intended this comment to be snark and would therefore recognize my reference to it.

Please forgive, but I do not know how to use the italicize function, so I will place my comment in quotes and then place the comment in quotes.
Here's mine:
"Maybe I'm just naive, but I think that legislatures should not be in the business of passing laws against individuals and their choices even if the consequences are ultimately for the good. I don't this could constitute an absolute prohibition, but it does set the bar for gubernatorial malfeasance fairly high."

Here's the response:
"Well, not everyone agrees with you. I mean, you haven't really made a case; all you've done is express an opinion."

First, you're quite right that I did not produce an argument for the assertion that one should not pass laws against individuals or specific actions by individuals (rather than say laws against types of actions). It's a bit odd to treat this as some sort of criticism of me, however. As in: arithmoquine did not prove that there are objective facts in his proof of the existence of God but instead assumed them. (Game, set, match!) Again, I took that for granted, but if you wish an argument, I will appeal to a thought experiment. Here it is: Congress passes a law making it illegal for Tom Delay to appear on Dancing with the Stars. Is that morally acceptable (albeit unconstitutional) action by Congress? Why not? Because it is an arbitrary use of government power to pass laws that apply only to single individuals; it treats people differently even if they are similar in all relevant respects.

Do I also need to support the premise that we should treat people the same if they do not differ in any relevant respect? I'm not sure that it is possible to find a premise that is more certain than that and which can support it. On the other hand, you may think that there are relevant differences in the Mitt Romney/Tom Delay redistricting cases. That may be true, but my point was that one would have to make a compelling case that there is enough of a difference to merit special laws against the actions of a particular individual or a particular individual's action.

Finally, I am unsure of the scope of the claim that I have not made a case but only expressed an opinion. I tried to make a case for several claims in my original comment; I hope your claim is not to imply that I made no case for anything but only failed to make a case for the claim (that I in fact had not attempted to make a case for given that it was functioning as a premise of my argument, not a conclusion).

At any rate, back to the subject of selecting a "best" candidate. The issue of individual vs. collective metrics is totally irrelevant. If one thinks that of two candidates X and Y, one of them may be roughly preferable to a group or to another individual candidate, then one should be slightly troubled that the preferred candidate, call her X, should not be given the seat because she would want to run for the office again.

In no way, at no time did I say anything that implied that:
"[T]here does not exist any other person Y who might perform the job in roughly the same manner as X."
Or that I am one who
"insist[s] that their preferred candidate is the only person on Earth who could possibly be acceptable".

Again, if there can be reasons to prefer one candidate over another (or set of others), then it is unfortunate that if said candidate wants to run for the office, that that fact would disqualify her from being appointed to the office. This does not imply that no one else could do the job, that said candidate is measurably best by everyone's standards. The metric one uses could be individual (if it is the governor's evaluation) or collective (if there were an election of a term-limited office). Suggesting that I might be crazy for advancing a claim that I neither made nor implied is not very helpful. Honestly, I don't see that I have said anything terribly controversial; that people prefer (and under certain circumstances should prefer) one candidate over others on a number of grounds is something of a commonplace.

[JustMe]

So no one can complain about anything unless the action in question is actually illegal?

Of course you can complain about it, but it's not really credible to claim that what you're complaining about is some kind off "corrupt bargain" and offense to the principle of the "rule of law" when nothing illegal or offensive has occurred.

You know, this is especially the case when such laws as Massachusetts has passed only serve to reinforce the status quo at the time of the laws' adoption. The most charitable interpretation of Sebastian's objections is that his objections are aesthetic in nature.

[Sebastian]

"I just do not see how one can square it with your prior support for a change in the California apportionment rules in the middle of the decade, when that effort clearly violated the first and third of your statements, and would have violated the second had Texas not already changed its rules mid-decade."

First, are you arguing against the Mass action, for the California action, or you can't decide? Do you believe your criticsm of my CA stance hurts or help the case against Mass?

Second, I don't see the problem with the California reapportionment *initiative*. It would have gone from supremely non-neutral rules, to much more nuetral rules. It was a decision made by the electorate as a whole, not the legislative elite. Therefore it isn't obvious how it could have particularly hurt public trust in the political system (except by revealing the extent of the problem of gerrymandering, but I don't think rule of law considerations generally argue for hiding corruptioin). Also the electorate, if it had decided to adopt the redistricting plan would not have been aiding one political party at the expense of another--the very nature of the proposal was to resist that. Further, the electorate as a whole in California wouldn't have flip-flopped the rule twice in 5 years if it had adopted the initiative (treating the same things similarly. Invoking Texas isn't nearly as strong since it is a different jurisdiction with different legislators and a different electorate while the Mass case practically involves the very same legislators less than 6 years from their old vote).

Unless you think that my criticism makes all rule changes impossible, I don't understand your comparison to the two.

JustMe, there are lots of things that are corrosive to the rule of law that are not technically "illegal". Selective prosecutorial discretion can be for instance. Gerrymandering is perfectly legal, but is a manipulation which is corrosive to the rule of law. Changing election laws capriciously is corrosive to the rule of law, but not illegal. You seem hung up on a charge I didn't make. I didn't say what they did was illegal. It almost can't be, they make the law. I said it was corrosive to the rule of law.

[JustMe]

Sebastian, things like selective prosecutorial discretion is a misapplication of the law. Things like gerrymandering are effectively subversions of the democratic process. I view the changing of the MA laws as something more akin to closing loopholes or adjusting laws to adapt to circumstances. In this case, the circumstance of an incumbent dying and going without a senator for several months during the high season of legislating is more important than the need to keep it vacant in conformance with another law. A law which itself was more important than allowing a governor from the opposite party to fill a vacancy until the next election cycle in the event that the senator became president.

I just don't see greater legal principle being subverted in this case.

[twitter.com/v_greene]

Many many posts ago, Anthony Damiani said:

"Actually, I think this system-- a temporary appointment coupled with a quick election-- is pretty good, though I'd prefer the temporary appointee be required to be of the same party as the old senator (ideally, they rather than the governor would do the selection) and required not to run in the special election."

Why not run in the special election? This strikes me as actually HANDING the governor the easiest way to take a potentially disliked candidate out of voter consideration. "Hmm," says our presumed-nefarious governor, because he's the one you have to assume when you make laws like this, "who's the last person I want the idiot electorate to choose? And how much damage could that appointee really do between now and the special election?"

Like term limits, this seems an unnecessary restriction on voter choice. Arithmoquine and Turbulence have been duking it out on something at least related, but so far nobody's answered the fundamental question. If we want democratic elections, then let's leave the field as open as possible. If we don't want it as open as possible, then I'd want to see a good solid reason to let the one lone governor have that much say in the matter.

[Sebastian]

"n this case, the circumstance of an incumbent dying and going without a senator for several months during the high season of legislating is more important than the need to keep it vacant in conformance with another law. A law which itself was more important than allowing a governor from the opposite party to fill a vacancy until the next election cycle in the event that the senator became president."

But those weren't the only options. They could have enacted this very law in 2004--allow the governor to fill a vacancy until the special election. They specifically refused to do that in 2004 when it was proposed. "Governor of the opposite party" isn't a good rule of law reason to change the rules.

Again, you would see that it is ridiculous to write the current law with "unless the governor is a Republican" right?

[hairshirthedonist]

JustMe, there are lots of things that are corrosive to the rule of law that are not technically "illegal". Selective prosecutorial discretion can be for instance. Gerrymandering is perfectly legal, but is a manipulation which is corrosive to the rule of law. Changing election laws capriciously is corrosive to the rule of law, but not illegal. You seem hung up on a charge I didn't make. I didn't say what they did was illegal. It almost can't be, they make the law. I said it was corrosive to the rule of law.

Sebastian, though this comment wasn't addressed to me, I think it touches on the subject of our previous exchange.

I understand your distinction between what is legal and what is in accord with the rule of law. I get that and I agree with your point in general. But what I wrote earlier in response to your comment about legal actions under a dictatorship holds.

In a dictatorship, the dictator can, for example, make a law that allows the dictator to detain people as he sees fit without further review. The rule of law has no real meaning beyond physical force. It's not respected by the people. It carries no moral weight.

In a democratic, constitutional state where basic morality and human rights are codified, there is (or can be) rule of law. If you follow the law in a well structured system respectful of human dignity, it is much harder to undermine the rule of law than in a corrupt or immoral system, I think. That's what I meant when I wrote that it means more to follow the law in Massachusetts than in a dictatorship.

If the law has meaning, following the law has meaning. Following the law is not a guarantee of maintaining the rule of law, but it's much more meaningful than following the law in a dictatorship.

Beyond that, rule of law, given other contexts in which I've seen that phrase used, here on this very blog, can also apply to stretching the law by interpreting it in a way that allows one to act against the spirit of the law while claiming to act within it according to some literal, strained interpretation of the law. This seems to me to be the most common use of "undermining the rule of law" or "corrosive to the rule of law" when discussing such issues occurring in this country. (That or actual violations of law by those in power who manage to get away with it because of their position.)

But what we're discussing in the Massachusetts changes occurred within a strong, well respected, just, non-corrupt system. It didn't push the boundaries of the law (i.e. no one has raised any question or would have any basis to raise any question on the legality of it). It didn't undermine the voters. (Yes, I know they took one particular appointment power away from the governor who was duly elected, but that hardly is a significant change to the office. I doubt many people voted for him because of who he would appoint to the senate on an interim basis.)

So, my point is, I can understand you don't like their changing the rules for a particular situation for partisan reasons and their flip-flopping. It does come off a bit unseemly at first blush, though I think there may have been good reason for the more recent change at least. But does it really undermine the rule of law? It just doesn't strike me as a big enough deal to do that. Maybe I'm biased.

[Dantheman]

Sebastian,

"First, are you arguing against the Mass action, for the California action, or you can't decide? Do you believe your criticsm of my CA stance hurts or help the case against Mass?"

I've already said I oppose the Massachusetts action, because I don't think rules should be changed when the consequences of the change are apparent. You're the one who has no problem doing it in California or Texas where it helps Republicans, and only in Massachusetts where it helps Democrats.

"Second, I don't see the problem with the California reapportionment *initiative*. It would have gone from supremely non-neutral rules, to much more nuetral rules. It was a decision made by the electorate as a whole, not the legislative elite. Therefore it isn't obvious how it could have particularly hurt public trust in the political system (except by revealing the extent of the problem of gerrymandering, but I don't think rule of law considerations generally argue for hiding corruptioin). Also the electorate, if it had decided to adopt the redistricting plan would not have been aiding one political party at the expense of another--the very nature of the proposal was to resist that."

I am amazed that you can say this. Truly. Of course it aided one party at the expense of another. Your failure to acknowledge that this was an entirely Republican proposal, intentionally made with the sole purpose to increase Republican representation in Congress, is beneath you. If the proposal were to say that these would be the new rules effective with the 2010 census, there would be no issue.

"Further, the electorate as a whole in California wouldn't have flip-flopped the rule twice in 5 years if it had adopted the initiative (treating the same things similarly. Invoking Texas isn't nearly as strong since it is a different jurisdiction with different legislators and a different electorate while the Mass case practically involves the very same legislators less than 6 years from their old vote)."

So under Sebastian's rules, one flip is OK, but not two. This would mean you would have no objection to the Massachusetts action in 2004, but only when they flipped back in 2009. I think both are horrible policies.

[Sebastian]

Having the electorate as a whole change the redistricting process from highly partisan to non-partisan one time is not a flip flop. Was there an earlier initiative that I'm unaware of where the electorate ratified the Democratic gerrymander?

"Of course it aided one party at the expense of another. Your failure to acknowledge that this was an entirely Republican proposal, intentionally made with the sole purpose to increase Republican representation in Congress, is beneath you."

California is a highly Democratic leaning state. There was never any evidence that going to non partisan redistricting would have a major impact on the number of representatives for either party--the main argument was that it would empower the more moderate members of both contingents by not creating such ridiculously 'safe' seats for either side. If it had been about replacing a partisan-Republican gerrymander for the already existing partisan-Democratic gerrymander (which is more of what happened in the Texas case) you would have a much better point.

It wasn't though. It was about reforming the entire process such that the hyper-partisan gerrymanders wouldn't be permitted.

The fact that it wasn't going to have a major impact on the then-current highly Democratic contingent shows how difficult the reform is--gerrymandering is about incumbents severely bending the rules for their own job protection. You attack that when there are opportunities (which is almost never).

The Massachusetts legislature considered the very proposal they are now adopting, and rejected it then for partisan reasons, and are adopting it now for partisan reasons. That is a flip flop for partisan reasons. The CA electorate hadn't considered redistricting in decades. Deciding to change it wouldn't have been.

[Marty]

"If it had been about replacing a partisan-Republican gerrymander for the already existing partisan-Democratic gerrymander (which is more of what happened in the Texas case) you would have a much better point."

And, for clarity, the partisan Democratic distrcting from 1991 in Texas allowed the Democrats to control a majority of the seats with just under 40% of the vote. The 2003 redistricting (clearly partisan) actually created a much closer (at the time) match between representation and voting totals.

[Marty]

"But what we're discussing in the Massachusetts changes occurred within a strong, well respected, just, non-corrupt system."

This is an interesting statement. Does it imply that MA politics is less corrupt, more ethical and more just than other states?

Because the it just isn't true. I would ask for ANY analysis that says, for example, that the districts in MA are any less oddly drawn to ensure huge Democratic majorities, even in a state where it probably isn't necessary.

The state has it's share of scandals and political deal making etc.

Why is it "more respected" than anywhere else?

[Hartmut]

One objection to arithmo's fears about the 'best candidate' would be that the chosen one could easily refuse to take the interim position becasue (s)he wants to run later.

[Dantheman]

Marty,

Get your facts straight. The 2003 Texas redistricting did not amend 1991's districting, as that had already occurred following the 2000 census, and which came into effect for the 2002 elections. It was fairly neutral, reflecting that both parties had a role in it. In 2003, Texas Republicans had control of both branches of the Legislature for the first time since Reconstruction, and used it to change the rules in mid-decade to pick up several House seats.

[Dantheman]

Sebastian,

"There was never any evidence that going to non partisan redistricting would have a major impact on the number of representatives for either party--the main argument was that it would empower the more moderate members of both contingents by not creating such ridiculously 'safe' seats for either side."

Sorry, but that does not come close to passign the smell test. Given the sheer fact that the 2005 initiative was strongly">http://en.wikipedia.org/wiki/Electoral_reform_in_California#Redistricting">strongly pushed by the Republicans, you are asking us to believe that they spent lots of their party's money pushing something that would not help them.

"It was about reforming the entire process such that the hyper-partisan gerrymanders wouldn't be permitted."

Then my suggestion is do it effective the next reapportionment scheduled to occur anyways. Doing it in the middle of the decade is simply changing the rules to suit one side. You condemn it when the Democrats do it, but cannot bring yourself to do so when the Republicans do.

[Marty]

"Get your facts straight. The 2003 Texas redistricting did not amend 1991's districting, as that had already occurred following the 2000 census, and which came into effect for the 2002 elections."

I know the facts. The 2001 redistricting was turned over to the courts as the legislature was unable to agree on a plan. The plan that resulted was essentially leaving the 1991 plan in place, with the same results. Thus when the Republicans managed to gain enough control an actual redistricting was accomplished.

[Sebastian]

"Sorry, but that does not come close to passign the smell test. Given the sheer fact that the 2005 initiative was strongly pushed by the Republicans, you are asking us to believe that they spent lots of their party's money pushing something that would not help them."

It was heavily pushed by the governor, who isn't a typical Republican in many ways.

You aren't offering evidence (the actual proposal tends to contradict you).

[Sebastian]

"Doing it in the middle of the decade is simply changing the rules to suit one side. You condemn it when the Democrats do it, but cannot bring yourself to do so when the Republicans do."

Sure I can, the Texas plan was trying to ram a partisan plan through midstream and was done by legislators=bad. The CA plan was trying to end the partisan redistricting and would have been enacted by the people of CA=much better.

The Mass. legislature was trying to play partisan politics on both sides of both decisions. And they did=bad.

[Dantheman]

"The CA plan was trying to end the partisan redistricting and would have been enacted by the people of CA=much better."

Umm, no. As you said earlier, "The Rule of Law is about many things:

It is about predictability, so citizens can order their lives around the rules.

It is about treating similar situations similarly.

It is about providing a groundwork of nuetral rules which help people trust the system."

Under your set of goals, the 2005 attempt to change California's method of apportionment clearly violates the rule of law. The law provided that the redistricting following the 2000 census applied until the next census. The attempt to change that law made the districts, which were supposed to be predictable until 2010, unpredictable. And it did so so one side could gain partisan advantage, by having the Republicans pick up several seats, not out of an attempt for neutral rules.

[hairshirthedonist]

This is an interesting statement. Does it imply that MA politics is less corrupt, more ethical and more just than other states?

Because the it just isn't true. I would ask for ANY analysis that says, for example, that the districts in MA are any less oddly drawn to ensure huge Democratic majorities, even in a state where it probably isn't necessary.

The state has it's share of scandals and political deal making etc.

Why is it "more respected" than anywhere else?

I'm talking about Massachusetts' system of government, not how their politicians conduct themselves. I live in New Jersey, so I understand corruption and scandal. But that is extra-legal activity, or at least tests the boundaries of the law. And that sort of thing certainly undermines the rule of law.

The point I was making was that the changes in the law in Massachusetts were done well within the boundaries set by their system of governement and their laws. And it's not as though Massachusetts has a corrupt system that, even if followed, would not be respected (as in a dictatorship).

The problem is that politicians in Massachusetts don't follow the rules, or they stretch the rules as far as they can, but that's not what happened with regard to the law regarding interim senators.

As I keep writing, you don't have to like, though.

[Sebastian]

"The problem is that politicians in Massachusetts don't follow the rules, or they stretch the rules as far as they can, but that's not what happened with regard to the law regarding interim senators."

How is flip flopping the rule based on the political affiliation of the governor not streching the rules? Having one rule under Democratic governors, than another under the Republican governor, than a third under the Democratic governor isn't exactly respecting the idea of neutral election rules.

"The attempt to change that law made the districts, which were supposed to be predictable until 2010, unpredictable."

But the change would have been made by the electorate as a whole, which makes it much more difficult that it would undermine public respect for the legal system. Unlike having the legislative elite change the rule back and forth in five years depending on the governor's party. The predictability issue in the rule of law isn't about never changing things. It is about not changing election rules capriciously.

Changes BY the public aren't as likely to undermine the trust OF the public.

One time changes aren't as likely to undermine the respect for public institutions as flip flopping for political advantage.

Do you disagree with either of those statements?

[Marty]

"And it's not as though Massachusetts has a corrupt system that, even if followed, would not be respected (as in a dictatorship)."

Thanks, I was confused as to what you were comparing it to.

[Dantheman]

Sebastian,

"The predictability issue in the rule of law isn't about never changing things. It is about not changing election rules capriciously."

And that is exactly what was attempting to be done in California. There was an attempt to change the rule capriciously, at the behest of and for the benefit of one political party.

"Changes BY the public aren't as likely to undermine the trust OF the public.

One time changes aren't as likely to undermine the respect for public institutions as flip flopping for political advantage.

Do you disagree with either of those statements?"

The second, absolutely. Especially when the one time change is clearly for being done for political advantage.

[hairshirthedonist]

How is flip flopping the rule based on the political affiliation of the governor not streching the rules?

How is it? What law governing law-making did they stretch? What intent did they violate? What legal basis would you have to challenge what they did? What rule, specifically, did they stretch, or were they working well within the legal framework that applied to them? Is there some aspect of the process that they toyed with through a strained interpretation of the wording of the law that you know of? I think the burden's on you, Sebastian, as the accuser.

Do you disagree with either of those statements?

You didn't ask me, but, no, I don't.

[Sebastian]

"The second, absolutely. Especially when the one time change is clearly for being done for political advantage."

This seems to be an argument against ever moving to more neutral districting rules as they will always disadvantage the party that cheated for the current rules. Is that your intent in the argument, or is there a nuance I've missed?

[Sebastian]

"What legal basis would you have to challenge what they did? What rule, specifically, did they stretch, or were they working well within the legal framework that applied to them?"

What do you mean what legal basis would you have to challenge? They are the legislature, they pass the laws they want. The laws they pass are by definition 'legal' unless they are unconstitutional. Again, do you agree that gerrymandering is problematic under the rule of law? Are you aware that it is perfectly legal?

[Dantheman]

"This seems to be an argument against ever moving to more neutral districting rules as they will always disadvantage the party that cheated for the current rules. Is that your intent in the argument, or is there a nuance I've missed?"

Yes, of course there's a nuance you've missed -- the same one I've noted many times. I have no objection to moving to a different system at the time there would be reapportionment anyway (e.g., following the 2010 census), as everyone knows the districts are subject to change at that time. I have a strong objection to changing the rules in the middle of a decade, as the expectation is that the reapportionment will last the entire decade.

[Sebastian]

But changing the rules still messes with the predictability right. And it still is likely to disadvantage the party that prefers the old rules, right?

You were objecting to it with "Especially when the one time change is clearly for being done for political advantage."

[hairshirthedonist]

What do you mean what legal basis would you have to challenge? They are the legislature, they pass the laws they want. The laws they pass are by definition 'legal' unless they are unconstitutional. Again, do you agree that gerrymandering is problematic under the rule of law? Are you aware that it is perfectly legal?

Yes, but, as I wrote earlier (quite a while ago, so I don't blame you for not remembering), gerrymandering directly affects voters. A governor's ability to appoint someone isn't fundamental to the state's democracy.

And there are rules that govern how the legislature does things. There is a process. Did they violate the rules or a process? Did they even use some obscure rule in an ahistorical way, or did they have a normal vote during a normal session when they passed the laws? You wrote "...unless they are unconstitutional" as though it were some remote consideration or an aside. Well, yeah, was it unconstitutional?

Or are Massachusetts' system of government and constitution and legislative processes so weak that following them very clearly and unambiguously doesn't give you some assurance of the integrity of the rule of law?

What evil deeds do you think future politicians or public servants will be able to get away with or be willing to try given the change in the law regarding interim senators?

What voters were disenfranchised?

How did the people who passed the laws shield themselves from the political consequences of their actions?

How does it undermine the rule of law?

What institutions were weakened?

What do you think should be done about it?

Regardless of your answers, you don't have to like it. And if you don't, I won't hold it against you.

FWIW, I don't know all the details on the California redistricting, but I agree generally with you that public referenda, short of some major deception on what's at stake, can't easily undermine rule of law.