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Legal Commentary

: Balkinization

Being rewarded for bad behavior

By Jack M. Balkin

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Unless Barack Obama wins both Texas and Ohio (and adds Pennsylvania a couple of weeks later for good measure), the race will go on, and the controversy about counting delegates from Florida and Michigan will become ever more heated. The Clinton position that the results of the primaries held there in January, in patent defiance of the Democratic National Committee, should be honored, is preposterous. The candidates had pledged to honor the ban by not campaigning there. Obama wasn't even on the ballot in one of those states and certainly didn't campaign. But if Clinton and Obama remain more-or-less tied after the next string of primaries, there will, I suspect, be great pressure to rehold the primaries in a context where both candidates can campaign. This appears fair on the surface, but there is a real paradox in adopting this solution.

The paradox is similar, in its own way, to that facing the country in the aftermath of the Civil War, where the former Confederates states were actually rewarded with greater representation in the House of Representatives and the Electoral College because former slaves, who had been counted only as 3/5 of persons for purposes of computing representation, now were counted in full. If, however, they could not vote or otherwise participate in politics, the real winners were the unreformed Southern whites, as proved true following the end of Reconstruction in 1877. Confederate sympatheizers were, in a very real way, rewarded for attempting to tear the Union asunder, with terrible consequences for the next century of American politics.

So what is the connection with Florida and Michigan? It is this: Both of those states selfishly tried to break the queue in the belief that that would heighten their influence in picking the nominee. The same belief led to the cluster of states joined together in Super Tuesday, all of whom apparently believed that that would be the last day of the campaign. They were, of course, mistaken; for the first time in at least two decades, the Texas primary turns out to be significant, and Ohio is getting the same attention at the primary stage that it is used to getting at the national election. But if Obama is not the decisive winner by April (there is no plausible argument that Hillary would be the decisive winner), then to allow Florida and Michigan to revote would be to give them exactly what they wanted: disproportionate influence in selecting the nominee, with attendant pandering to the parochial interests of these two states.

I suspect that both Clinton and Obama will, should the context warrant it, agree to a revote. If Clinton holds to the "let's count the delegates from the illegitimate January primaries" and superdelegates provide the margin of support in what would undoubtedly be a vicious floor fight, the Democratic Party could indeed find a way to snatch defeat from the jaws of a monumental victory, as many Obama supporters would (properly) view his defeat under such circumstances as theft of what he earned fair and square. So the best solution from the Democratic Party's perspective would be the revote. Who would really be upset if such a solution ended up rewarding the miscreants who are responsible for creating this awkward situation in the first place?

Full post as published by Balkinization on February 29, 2008 (boomark / email).