Le Sigh.

It looks like it may be time for another edition of Zuzu The Rules Junkie Explains It All For You.

Disappointingly, the person needing the explanation is Atrios.
Making Us Stupider

As Scott says, it isn't trivial and it's destroying the respect I once had for a group of people.

It's weird, really, having in some sense started my political life defending the Clintons and now being rather fed up with them.

I'm not important, but I'm not alone.
So, what's "it" referring to here? You can go to the link in Atrios's post yourself, but essentially, Scott Lemieux is soiling his boxer-briefs over a post by Whoever Kidnapped Josh Marshall, who in turn soils himself about Terry McAuliffe's claim that Clinton is ahead in the popular vote. Marshall accuses McAuliffe (and by proxy, Clinton) of "moving the goalposts" and Lemieux gibbers about "Calvinball" and ZOMG SHE'S TRYING TO DESTROY THE PARTY!!!

Whoever Kidnapped Josh Marshall says the following:
As I said in this morning's episode of the TPMtv, I think that over the last week there've been tentative but hopeful signs of a deescalation of tensions between the two campaigns. But some of this stuff is just ridiculous. Point one sounds like it's probably true. What relevance it has I have no idea. Point two though is really the kicker. Even if you change the rules and fully seat Michaigan and Florida and count them for the popular vote totals and don't count any portion of the Michigan "uncommitted" (which were understood a the to be for Obama) vote for Obama, Hillary is still behind in the popular vote total. The only way she moves ahead in popular vote is if you do all that and don't count four of the caucus states.

Some stuff is just too ridiculous to let pass. You just have to assume this is just Terry's nonsense.
However, Whoever Kidnapped Josh Marshall does not provide support for the following propositions:

1. That you must "change the rules" in order to fully seat Florida and Michigan or to count the popular vote in those states;

2. That the Michigan "uncommitted" vote total can, or should, be assigned to Obama;

3. That Clinton "is still behind in the popular vote total"; or

4. That there's anything fishy about not including the caucus totals of Iowa, Nevada, Maine and Washington in present vote counts.

As for point 1, Whoever Kidnapped Josh Marshall is simply incorrect that the seating of Florida and Michigan require any "changes" to the rules (or, for that matter, to the charter and bylaws). The DNC Rules are set, and are not changed if the Rules and Bylaws Committee, after hearing the challenges of Michigan and Florida (challenges are explicitly provided for in Rules 20 and 21) reverses its decision to go nuclear on Florida and Michigan and instead decides that the facts don't support a deviation from the 50% standard penalty in Rule 20.C.1.a and 20.C.4. In fact, the 50% penalty is automatic, so that the only way that the RBC could lift the penalty entirely would be to find that there was no violation of the timing rules.

It's worth noting that there is a difference between rules and rulings. Rules, like laws, provide a framework for making a decision (or ruling). The rule provides the standard by which the decision is made. You can appeal decisions, and one of the bases for an appeal is that the rules were misapplied, or disregarded, or what have you. However, if a ruling is changed because the decisionmaker incorrectly applied the rules, that does not mean that the underlying rule is changed. Let's analogize to, say, a murder statute. In order to find that the defendant is guilty of the particular charge, the court must find that there is sufficient evidence that the defendant violated each element of the murder statute. If the court finds the defendant guilty, but the defendant can show on appeal that the evidence did not support some particular element of the charge, i.e., intent, the appeals court can decide that the trial court misapplied the law, or that the facts did not support the charge.

However, a successful appeal does not change the murder statute. What it does is change the decision that was based on the statute because the evidence simply didn't support the conclusion that the defendant committed murder.

And the same thing happens with rules. In the case of Florida and Michigan, the issue, at least for Michigan, is not so much that they didn't violate the timing rules but that the nuclear-option punishment -- which is a deviation from the standard and automatic 50% penalty -- is not supported by the evidence (Florida, from what I understand, takes the position that because the Republican-controlled legislature set the date and tied the legislation to a must-pass paper-trail rider, they should not be punished at all). So the RBC can reverse itself (or modify its findings) without having to change the rules.

In fact, the RBC doesn't even have the power to change the rules simply by reversing its earlier decision, which brings me to the second part of point 1: that the popular vote from Michigan and Florida is somehow related to, or gains legitimacy from, the DNC rules.

It's important to keep in mind that the DNC rules are actually delegate-selection rules and not election rules. And why? Because the DNC, a private organization, does not have the authority to validate or invalidate elections, which are run pursuant to state law and certified by the state's secretary of state's office (remember Katharine Harris?). The DNC's authority is limited to promulgating and enforcing its own internal rules about who may be seated at the Democratic National Convention and under what circumstances. Penalties are limited to stripping delegates because that is the limit of the DNC's authority; the DNC's purpose is to select delegates who then select the nominee for the general election. The DNC, a private organization, has absolutely no power to invalidate elections that were duly conducted pursuant to state election laws. And despite the claims that the Florida and Michigan contests were "invalid" or "flawed" or what have you, those contests were certified as free and fair and in compliance with state election laws. The problem was not in the way that the elections were conducted by the states and by the voters, but in the delegate-selection process which is separate from, but obviously hinges on, the state-run primary elections.

In other words, it's not that 2.3 million people didn't cast valid votes, it's that the party has decided to punish the state party organization in two states by not allowing them to send delegates selected on the basis of the results of those primaries to the DNC. The votes do not disappear simply because the DNC refuses to allow the state parties to use those votes in order to select delegates to the convention. In addition, if the RBC decides to go with the 50% penalty, that does not change the fact that 2.3 million Floridians and Michiganders cast their votes in accordance with the laws of their states. Just like the fact that the Americans Abroad delegation only got a half delegate doesn't change the number of votes actually cast by Americans abroad as part of that primary.

And since I'm sure that someone will bring up the "pledge" and allege that Clinton "agreed" that Florida and Michigan would not count: No. First, the only promise made in the pledge was not to campaign in any state that violated the timing rules, and the candidates were already bound by the DNC rules not to do that; there was no promise to withdraw from any ballots, nor did the pledge have anything to do with delegate selection, just campaigning. Second, Clinton did not, and indeed could not (because she did not have the authority) make any "agreement" that the primaries in Florida and Michigan would not count. The most anyone's come up with is some answer she gave to a caller on a radio show, and it sounded to me like a description of how things had already shaken out, not some kind of exercise of authority.

Which brings us to point 2, the uncommitted votes in Michigan. No, they can't be counted for Obama as part of the popular-vote numbers. Why? HE WASN'T ON THE BALLOT. Again, he wasn't required to withdraw; he did so voluntarily. Moreover, uncontested elections happen ALL THE TIME. In fact, Obama won his state legislature seat after he got all of his primary challengers knocked off the ballot in a series of ballot-certification challenges. Yet his election was nonetheless valid under Illinois law. Similarly, the Michigan primary was valid under Michigan law, regardless of the fact that Obama withdrew his name.

The DNC is within its rights to assign the uncommitted delegates to Obama, or choose delegates for the uncommitted slots that will likely vote for Obama at the Convention -- but as discussed above, the DNC has no power over state elections or votes cast. It cannot arbitrarily assign votes cast for "uncommitted" to Obama. If Obama wanted to count those votes, he could have stayed on the ballot or he could have agreed to a revote.

Moving on, Josh Marshall is a journalist, and journalists tend to enjoy things like sourcing. Whoever Kidnapped Josh Marshall, I'm not so sure about. Because points 3 and 4 could be resolved by a simple link to one or another of the popular vote calculators out there. And lo and behold, Clinton has an argument for being ahead in the popular vote if Michigan and Florida are included in the total.

And contrary to his assertion, this holds true if the four caucus states of Iowa, Nevada, Maine and Washington are included in the total. Real Clear Politics' calculator gives various configurations (i.e, with Florida but not Michigan, with or without IA, NV, ME and WA). And, if you include Michigan, with or without the four caucus states, Clinton pulls ahead. If you don't include Michigan, Obama remains ahead.

By the way, the reason that those four states' caucus results are often not included in popular-vote calculations is not manipulation but because those states haven't actually released official popular-vote data. There's nothing terribly nefarious about it, and RCP's calculator uses estimates.

As for Scott's "Calvinball" blatherings: he continues to pretend that somehow Clinton is responsible for the fact that unpledged delegates (a/k/a "superdelegates") will be making the decision of who to vote for, and that the fact that there are no rules for them to follow when making their decision is likewise somehow Clinton's fault. So while he derides the metrics of the popular vote, and accuses Clinton of forwarding the popular-vote argument in order to hurt Obama's legitimacy as the nominee, he seems to lose sight of the fact that neither Clinton nor Obama gets over the hump without the superdelegates, and the superdelegates can consider any metric they choose to in order to make a decision. And -- surprise! -- both Clinton and Obama are playing to win, and playing within the rules.


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