Legal Commentary

I have tried not to get caught up in the horse-race analysis of the presidential election at this point so as not to drive myself nuts, but I cannot help myself. I find myself checking lefty political blogs (mainly Huffington Post, TPM, and Kevin Drum) and a good new lefty poll-analysis and projection site. The constant story, besides criticism of the MSM, is the narrative, based on polls, that Obama is "winning" and McCain is "losing" and the question is by how much and whether Obama should be leading by more and who is gaining or losing ground (constant theme: Obama leads, but not by enough, so every poll showing a close race is "good news" for McCain). McCain played into this a few weeks ago by insisting that he was going to make a big comeback and pull the election out forty-eight hours before Election Day.

My thought when I read that was "No, you're going to pull it out (or not pull it out) on Election Day." Prior to that, you are not leading or trailing or coming back or blowing a lead. There is nothing to lead or trail in until the polls open at 7 a.m. on Election Day and people actually begin casting votes; prior to that point, "the game" has not started. Compare it to the Super Bowl. There are two weeks of wall-to-wall coverage leading up to the game, talking about who has advantages over whom and why and how the game likely would play out, one team is installed as a "favorite" over the other (sometimes, as in this past game, a prohibitive favorite), and pundits predict who is going to win when the game finally is played. But for all that noise, at kick-off the score is 0-0. The Giants can claim a lot from their win in the last Super Bowl; "coming from behind" because all the stories prior to kick-off predicted a New England victory is not one of them. Nor would we say the Patriots "blew" a big lead because they were early favorites.

So why is that any less true of elections?

Why do people still speak about Michael Dukakis (whom polls projected as winning by 20 points in mid-summer) as having lost a big lead to Papa Bush? One reason might be that the pre-Election-Day noise influences what happens on Election Day, creating something of a self-fulfilling prophecy. If the narrative is "Obama is leading," that might fix what some people do when they vote. The pre-Super Bowl hype has no direct effect on what happens on the field, except perhaps as it affects the expectations and mental preparation and attitudes of the players and coaches and those attitudes affect physical performance (probably only minimally). Another is that polls are a rough preview of the precise actions that will matter come Election Day (casting of votes); certainly we can assume that the people who actually respond to polls will vote the same as they respond. The discussion of how Tom Brady or Eli Manning will play on game day are merely predictions (really just wild guesses) of what might happen based on past performance, but do not really affect how they, in fact, perform. But are those differences so meaningful that we can say the "game" of the election is going on when no one is actually casting votes and the numbers are just projections of what we expect to happen?

The snarky line from sportscasters is "X looks like the better team on paper, but that's why they don't play the games on paper." Similarly, what representative segments of the public think on the telephone prior to Election Day may make one candidate seem better than the other, but the election is not decided by representative segments of the public on the telephone.