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Monday, September 29, 2003


UPDATE (9/29/03) Here comes the new storyline!

Republican consultant Kenneth L. Khachigian has an op-ed in the Los Angeles Times today which picks up on the theme that Republicans should try to shove Bustamante down into third place.

This is the leading edge of the new media feeding frenzy. Expect a lot more columns and stories playing up McClintock's come-from-behind charge to overtake Bustamante.

Sunday, September 28, 2003


Republicans are in full panic mode that McClintock will tilt the election to Bustamante.

Democrats are in full panic mode that Bustamante is dead in the water.

Polls show Davis is way behind and maybe even losing ground.

Folks, it's over. Gray Davis is dead, burnt, ash of toast. Arnold Schwarzenegger is the new governor. And Tom McClintock is the new conservative hero.

Everybody had been focussed on the fact that two major Republicans are "splitting" their party's vote, thereby making it possible for Cruz Bustamante to win with a weak plurality. This is a very superficial, static analysis which is based on an improper application of historical results. Democrats are the dominant political party in California, so it seems logical that it would take a united Republican front to have even an outside chance of defeating the Democrat for Governor.

But this is the antithesis of a normal, historically-typical election. This is a "throw the bums out" election, and the people who vote are going to skew heavily anti-politician and anti-government. Let's look at what this means.

Around a million absentee ballots have been cast so far, and Republicans worry that the absentee votes cast for McClintock are lost forever, even if he were to suddenly withdraw from the race and throw his support to Schwarzenegger (which won't happen). True, but so what? Even in a normal election the early absentee ballots run more Republican and conservative than the election day voting. This election will accentuate that. The huge burst of absentee balloting is not coming from people who are eager to keep Gray Davis in office or who are fans of Cruz Bustamante. It is coming from people who can't wait to overturn the status quo.

So at 8:10 pm on October 7th, when the various county registrars release the early absentee vote counts, those numbers will show Davis going down by a huge margin. They will also show Schwarzenegger with a comfortable lead over Bustamante, and Tom McClintock with 10% to 15% of the vote.

In order for Davis or Bustamante to overcome that initial handicap, each would have to win in the election-day voting, and win by more than just the skins of their teeth. But if the election was close enough on election day for Bustamante to have a chance, then a large fraction of McClintock's supporters would hold their noses and vote for Arnold, which would easily put him over the top.

It's a lose-lose situation for both Davis and Bustamante. All those Republicans out there who have worked themselves into a state of shear terror have done so for nothing. As the results are reported on election night, we may see the percentage gap narrowing on the recall question and between Schwarzenegger and Bustamante, but the absolute margin of votes will continually increase. Even that might not be true; the percentage gap could also widen, and this could turn into a runaway landslide.

Indeed, if other polls in the coming few days mirror today's USAToday/CNN/Gallup poll, the pressure will abate for McClintock supporters to vote for Arnold to avoid Bustamante. If it seems certain that Arnold will win big, some of his reluctant conservative supporters may find it safe to swing back to Tom.

The news media needs conflict and it needs a story theme. If Davis' ouster and Arnold's victory is seen as a done deal, they'll have to turn elsewhere to find enough drama.

The surprise, last-minute election news frenzy may turn out out to be the question of whether Tom McClintock beats out Cruz Bustamante for second place.

Tuesday, September 23, 2003


A good, clean, unanimous decision.

The U.S. 9th Circuit Court's decision avoided the "chop the baby in half" solution which I had predicted below.

There seemed to be some sentiment to postpone Propositions 53 and 54 until the March primary, but then the 11-judge panel would have had to go to a lot of effort justifying such a conclusion. This way they simply deferred to the District judge's original ruling:

We recognize that there may be a stronger case on the merits for delaying the initiatives than the recall, because the initiatives were originally scheduled to be voted upon in March 2004 and would not take effect until at least 2005, while the result of the recall would be immediate. Because votes are already being cast on both the recall and the initiatives, however, moving the initiatives to a later election creates the same problem as moving the recall; an election would be halted after it has already begun. Although the claimed state electoral law violations do implicate the public interest, and the voters and ballot proponents anticipated a later election based on earlier certification, we cannot say that the district court abused its discretion in balancing the harms. Finally, we are reluctant to intercede in ballot timing of the initiatives, an electoral matter that falls within the province of the state to determine.

So what are the political consequences? The off-again on-again court orders added yet another set of unexpected twists to the entire recall drama, and may even have prevented Californians from losing interest. Now we are into the two-week home stretch. The pace will be fast, and excitement will build to a crescendo. Absentee ballots will once again pour in. Public opinion polls will pour forth. The news coverage will be non-stop recall, perhaps even approaching Gary Condit or Princess Di levels, as we come up on October 7th.

With Prop 54 still in the mix, Democrats will have a lever to get minority voters to the polls. That will help Davis some, but not nearly enough. After all, it doesn't really matter whether he loses by a 60%-to-40% or a 51%-to-49% margin; either way he's out of there.

Bustamante will get a boost, but I think it will also fall short. The decision by Superior Court Judge Loren McMaster regarding Bustamante's illegal money-laundering will add to his negatives. Especially because Bustamante is refusing to return the money to donors, claiming it's already all spent.

The main thing now is that Democrats can't scapegoat the U.S. Supreme Court for the recall election, which is the trap the 3-judge panel had tried to set up. Recall supporters still have the emotional edge, and even with Prop 54 left on the ballot they should turn out in much larger numbers than recall opponents.

One might even speculate that the confusion caused by the 3-judge panel's decision will seriously hurt the get-out-the-vote efforts of Democrats and their liberal allies. By the ACLU's logic, if minority voters are too stupid to properly handle punch-card ballots, how can you expect them to handle conflicting news reports about whether the recall election is on schedule?

Monday, September 22, 2003


Sacramento Bee shoots its leg off

----- Original Message -----
From: Daniel Wiener
Sent: Sunday, September 21, 2003 7:32 PM
Subject: Daniel Weintraub's blog

Dear Mr. Marcano,

I was shocked to read that the Sacramento Bee is now trying to reign in Daniel Weintraub's superb blog. Don't you people have the slightest clue?

Daniel Weintraub has become THE news guru for the current recall election because of his fast, insightful, leading-edge reports and analysis. EVERYONE who cares about the recall now stops at least once and often several times a day at his blog. He is constantly quoted in other stories throughout the Internet.

And because of Daniel Weintraub, the Sacramento Bee has seen its reputation and influence skyrocket. No other paper can compete in recall election coverage, including the Los Angeles Times.

At least that was the situation up until today. Now the Sacramento Bee has gone and shot its entire leg off with this idiotic decision. Mr. Weintraub's reports are likely to slow down, and all his readers will have to be concerned that he is either self-censoring his comments or (more likely) being censored by timid, politically-correct editors.

I sincerely hope that Mr. Weintraub finds himself another job and a newspaper that properly respects him. Then the Sacramento Bee will learn the hard way that it needed him much more than he needed it.

Sincerely yours,
Daniel Wiener

Monday, September 15, 2003


UPDATE (9/16/03): I love it when a plan comes together!

The 9th Circuit Court has decided to have an 11-judge panel reconsider yesterday's ruling by a 3-judge panel to postpone the recall election. This comes after the Los Angeles County Registrar revealed [catch by Daniel Weintraub] that the new voting machines can't handle both the super-long recall ballot and the large number of other March, 2004 contests:

"It's more than a wrinkle," said Los Angeles County Registrar-Recorder Conny McCormack. "No one even asked the largest county in the state if we had the capacity to run it in March. The answer is no."

What a set-up! The full 9th Circuit Court can now avoid enormous embarrassment and reversal by the U.S. Supreme Court by simply doing what I describe below: Allow the recall election to proceed on October 7th, but postpone the propositions until March, 2004.

If they do that, the Supremes won't touch the matter. Democrats will be unable to demonize the U.S. Supreme Court because it will be entirely a 9th Circuit Court decision. The anger level and get-out-the-vote intensity of recall supporters will have been elevated by the effort to abort the election, but recall opponents will have no excuse for comparable anger against a "partisan Supreme Court". And there will be no Prop 54 on the October ballot to energize minorities to get to the polls, and incidentally vote for Davis and Bustamante.

You'd almost think the 9th Circuit Court was in league with the Republicans...

Did the 9th Circuit Court screw Davis and Bustamante?

All the pro-recall people are all upset over the decision by the 9th Circuit Court to block the October 7th election. But those first impressions may be wrong.

So here's my fearless prediction, after pondering the political implications and after reading the decision itself.

The Court's decision has a veneer of plausibility, since the previous (Republican) Secretary of State, Bill Jones, had already conceded in a consent decree that voting machines used in many California counties were defective and had to be replaced. Back then everyone basically agreed that it would take time to replace them. It couldn't be done in time for the 2002 election, but it was feasible for the March, 2004 primary. Nobody really expected a statewide election to take place during the interim, although it was theoretically possible (not just from a recall, but by the Governor calling a special election for some initiative or bond measure).

In other words, everyone agreed that the public interest in holding a regular election in 2002 outweighed the public interest in postponing elections until better voting machines were available.

So does the public interest in holding a recall election in October, 2003 outweigh the public interest in postponing this election until better voting machines are available?

This is the weak spot in the 9th Circuit Court decision. The judges tap-danced hard on this one, arguing that the recall might have been postponed till March anyway:

The operation of this exception produces arbitrary results; because the signatures were certified seven and a half — instead of six — months in advance of the March 2004 election, this exception does not apply, and the deadline falls in early October. In essence, granting a preliminary injunction would put the election only one and a half months after the longer six-month time period provided for by the California Constitution.
But the whole point of a recall, and the reason it was written into the California Constitution the way it was, is that the people must have the power to quickly rid themselves of an elected official when they believe the situation warrants it. Otherwise why not just wait until the end of that official's regular term? Six months from certification is the outer limit allowed in the California Constitution for scheduling the recall election.

The 9th Circuit Court has a much better case for booting Propositions 53 and 54 (the Racial Privacy Initiative) from the October 7th ballot, and the Court explicitly says so:

The case for postponing the election is even stronger with respect to the votes on Propositions 53 and 54. The two propositions on the special election ballot were originally scheduled to be placed on the ballot of the March 2004 election. Indeed, on July 15, 2002, more than a year ago, then Secretary of State Bill Jones issued and signed a certification placing the initiatives on the March 2, 2004 primary election ballot. ...

There is no urgency in obtaining a public vote on the propositions. Proposition 53, to establish the “California Twenty-First Century Infrastructure Investment Fund,” would require specified percentages of the California general fund revenues to be set aside for acquisition, construction, rehabilitation, modernization or renovation of local infrastructure. The first year affected by the proposition would be 2006.

Proposition 54 would amend the California Constitution to prohibit state and local governments from using race, ethnicity, color, or national origin to classify current or prospective students, contractors, or employees in public education, contracting, or employment operations. The initiative has an effective date of January 1, 2005.

So here's what I believe is likely to happen. For the next few days everyone is going to froth at the mouth over the 9th Circuit Court's action. Recall supporters will be livid, and recall opponents will be cautiously delighted. Then the U.S. Supreme Court will step in and rule that the public interest in holding a recall election without delay, as prescribed in the California Constitution, outweighs the public interest in waiting for better voting machines. The U.S. Supreme Court will specifically note that the 2002 elections took place using the same voting machines.

But, the U.S. Supreme Court will agree with the 9th Circuit Court that there is no urgency in voting on Propositions 53 and 54, and that those should be postponed until March, 2004. Doing it in that way will take the sting out of the USSC decision; it will appear very measured and reasonable and "judicial", and will be hard to paint as just another Republican coup by a partisan right-wing court. After all, it makes it far more likely that both propositions will be defeated in a Democratic-weighted primary election. Especially for liberals who are horrified by Prop 54, that is a very big deal.

If the USSC follows the above scenario, it will be a HUGE defeat for the Democrats. Gray Davis might have had a chance to survive if the recall election itself was postponed till next March, during a hot Democratic primary. If nothing else it would be a reprieve, and who knows, by then the horse could learn to talk. But an October recall election is a political death sentence for Davis, and everybody knows it. The Democrats' only hope was to motivate their base of minority voters to get to the polls. A lot of that motivation drains away if there's no Prop 54 to vote against.

It's also a HUGE defeat for Bustamante. He was counting on anti-Prop 54 sentiment to help turn out Latinos and blacks. He was going to transfer $3.8 million of heavily-criticized contributions into the campaign to defeat Prop 54 (featuring himself in the TV commercials). Now what will he do with the money? No matter what new scheme he comes up with for spending the money, it will look dirty and it will further raise his negatives.

And what of the propositions themselves? Both were iffy even in an October election. Prop 53 is bad policy, in that it locks in future state spending. True, the state's infrastructure is decaying, but our bigger problem is huge budget deficits and uncontrolled state spending. Prop 53 would virtually guarantee future tax hikes, and I think the voters will be quite skeptical. Prop 54 is mainly a symbolic measure. It's loaded with loopholes in order to survive the inevitable court challenges. And its sponsor, Ward Connerly, practically conceded defeat a few days ago. So moving the propositions to March probably won't matter.

The 9th Circuit Court (and especially these particular judges) has a reputation for being extremely liberal, partisan, and results-oriented rather than following the law and U.S. Supreme Court precedents. In this case I think they've overplayed their hand. The U.S. Supreme Court has repeatedly slapped the 9th Circuit Court down, and is likely to do so again.

Liberals may come to rue this court decision as the final nails in Davis' and Bustamante's coffins.

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