Lanny Davis, annotated:

Here are two important neutral principles that should guide the Democratic National Committee’s Rules Committee when it meets May 31 to decide whether to seat the Michigan and Florida delegations — and, if so, how to allocate them between Sens. Barack Obama and Hillary Rodham Clinton.

One principle is based in law, the second in pragmatic politics. Both principles result in the same solution: in some rough approximation, honoring the results expressed by almost 600,000 Michigan Democrats and more than 1.7 million Florida Democrats, who turned out in record numbers though they were told their votes didn’t count, were not responsible for the rules violations, and don’t want to be disenfranchised.

Record numbers? Not in Michigan. According to the Michigan Bureau of Elections, the record for participation in a Democratic Presidential Primary came in 1972, when 1,588,073 Michigan Democrats cast ballots. That is nearly one million more ballots than were cast this year. (On the other hand, had Michigan held an “official” primary, and had the voters had behaved approximately as they did in Indiana, Wisconsin, and Ohio, about 2,000,000 voters would have cast ballots, easily breaking the record).

The legal principle supporting that solution is pretty simple. In U.S. contract law, the party breaching a contract usually has the right to “cure” the violation during the term of the contract. But if the other party stands in the way of that cure, the breaching party cannot be further sanctioned — and certainly, as a matter of fairness, the party preventing the cure should not stand to benefit.

If the breach in question is Michigan’s decision to advance the date of its primary beyond what the DNC permitted, it would seem that the parties to that dispute are (i) the Michigan Democratic Party (MDP), and (ii) the DNC. Therefore, if the MDP sought to cure the breach (that is, hold a do-over election), the principle that Davis articulates would suggest that the “breaching party” — a.k.a. the MDP — could not be further sanctioned.

It is unclear, however, what any of this has to do with the Clinton and Obama campaigns. At best it is an argument for seating Michigan’s delegates. It isn’t an argument about how to seat them.

That is, in fact, what happened in 2008 to Michigan and Florida. Those states violated the party rules when they scheduled their primaries before Feb. 5. But then in March, elected officials and party leaders in both states were willing to “cure” — i.e., to hold new primaries and raise the money privately to pay for them. In Michigan, Gov. Jennifer Granholm and Sen. Carl Levin proposed a “fire house” primary in June, in which voters could revote at local fire houses or libraries. In Florida, Sen. Bill Nelson and others supported a revote by mailed ballots and perhaps also offering the fire house alternative for those voters who preferred to vote in person.

DNC Chairman Howard Dean said at the time that such revotes were permissible and would bring Michigan and Florida back into compliance. And there was precedent: In 1996, Delaware Democrats held a party caucus earlier than the permissible date, resulting in a rule violation. But state Democrats were allowed to hold another caucus later on and were then found to be back in compliance.

In March and April 2008, Clinton publicly supported the revote proposals of Michigan’s Granholm and Levin and Florida’s Nelson. She repeatedly invited Obama to join her and do the same. He never did — and the revotes never occurred.

Now the Obama campaign would say that they neither objected nor approved; they just raised “concerns.” That is a fact. But here is an unavoidable inference from other undeniable political facts: Had Obama instructed those supporters in Michigan and Florida who were opposed to the revotes to support them, and joined with Clinton in endorsing the revotes, the new rounds of voting would have occurred.

Can anyone seriously argue against that inference? Or that the Obama campaign, by referring to vague concerns for weeks about the revote proposals without offering to sit down with Clinton campaign, Florida, and Michigan Democratic officials to work them out, was more intent on playing out the clock and killing the chance of any revotes than finding solutions to permit the revotes to occur?

While Obama might have run the clock out on Michigan and Florida revotes, he probably would not have had the opportunity to do so had the Clinton campaign decided to start playing offense a little sooner. In a US News interview dated March 6th — two days after the Ohio and Texas primaries — Clinton stated her opposition to Florida and Michigan revotes:

I would not accept a caucus. I think that would be a great disservice to the 2 million people who turned out and voted. I think that they want their votes counted. And you know a lot of people would be disenfranchised because of the timing and whatever the particular rules were. This is really going to be a serious challenge for the Democratic Party because the voters in Michigan and Florida are the ones being hurt, and certainly with respect to Florida the Democrats were dragged into doing what they did by a Republican governor and a Republican Legislature. They didn’t have any choice whatsoever. And I don’t think that there should be any do-over or any kind of a second run in Florida. I think Florida should be seated.

Moreover, as late as March 13, the Clinton campaign opposed a Bill Nelson type vote-by-mail primary in Michigan. But at some point in mid-March, the Clinton campaign changed its position. This would appear to have been motivated by the fact that the Clinton campaign had not significantly cut into Barack Obama’s delegate margin in Ohio and Texas, and needed some way to add time to the clock.

Money was certainly not an issue. Sufficient funds — estimated at between $15 million to $20 million for both states — could have been privately raised. New Jersey Gov. Jon Corzine and many other big Democratic donors publicly offered to raise this much. Moreover, does anyone doubt that had Obama joined Clinton in supporting these revotes, there would have been any difficulty in raising this sum just from their joint appeal on their campaign web sites alone? Hardly.

I can agree with Davis on this point: money was the least of the barriers to Michigan and Florida revotes.

So what is the fairest solution for the Rules Committee, taking into account Michigan’s and Florida’s willingness to revote but for the failure of the Obama campaign to sit down and work out details to solve their “concerns”?

It is rather simple. Go back, in effect, to the status quo ante and make some reasonable and fair adjustments.

In Michigan, Clinton received 55 percent of the vote. According to Thegreenpapers.com, she thus should receive 73 pledged delegates based on that percentage.

What about the 50 remaining uncommitted delegates, and 7 collectively cast for Sen. Chris Dodd and Rep. Dennis J. Kucinich, who were also on the ballot?

Stop right there. What are these “7 [delegates] collectively cast for Sen. Chris Dodd and Rep. Dennis J. Kucinich” that Davis refers to? He appears to have invented them out of thin air.

According to Davis’s preferred source, the Green Papers, the largest share of the vote that Kucinich + Dodd collectively received in any one congressional district was 6.7 percent, in MI-15. However, this percentage would have fallen far short of the 15 percent threshold required for a candidate to receive delegate representation out of a congressional district.

I would also note that Davis’s arithmetic is wrong. He suggests that Michigan had 130 delegates: 73 for Clinton, 50 uncommitted, and these 7 phantom delegates he assigns to Kucinich and Dodd. But in fact, Michigan had been assigned 128 pledged delegates before its sanctions, and not 130.

Some of those 50 delegates might have been for Clinton as a second choice to candidates other than Obama, so it would be totally unfair to award all 50 delegates to Obama.

It isn’t quite clear to me what Davis is arguing here. That some voters who voted for “uncommitted” did so as a proxy for John Edwards, but would have voted for Clinton had Edwards withdrawn from the election? Notwithstanding that the number of such voters was probably very small, Democratic primaries make no provision for instant-runoff voting. Should we also go back to New Hampshire and South Carolina and assign John Edwards votes in those states to Clinton and Obama? No; Edwards should get credit for all his presumptive votes, and if he gets any delegates out of them, those delegates should be free to behave as other Edwards delegates do.

One little known fact: Clinton complied with party rules by allowing her name to remain on the ballot, as did Dodd and Kucinich. Obama was not forced by party rules to remove his name — he chose to do so.

Actually, this is debatable. The pledge letter signed by Hillary Clinton did not merely prevent Clinton from campaigning in Michigan and Florida, but also from “participating” in those contests.

The Rules Committee has several options. The fairest would be to allocate those 57 pledged delegates, to Clinton and Obama by the same ratio of their standing to one another in the average of the most recent Michigan statewide polls prior to the Jan. 15 primary. Or perhaps one Solomonic compromise, more generous to Obama than to Clinton, would be to divide the remaining delegates approximately 50-50 between the two of them, 28-27 (giving Clinton the extra delegate since she led in all the latest statewide polls prior to Jan. 15).

I don’t even know where to begin. Davis is arguing that Clinton should be given all of her delegates and the lion’s share of the uncommitted delegates based on her standing in pre-election Michigan polling. Or, he might be so kind as to let Obama have (almost) half of Michigan’s uncommitted delegates. Such magnanimity has not been seen since last night’s season finale of The Tudors.

If Davis is arguing that public polls should be used to assign delegates, he opens up a whole can of problems, not least of which are that:

(i) The last public poll taken in Michigan that had Obama’s name listed as an option was in the field from November 30th through December 3rd — more than six weeks before the Michigan primary. (After that point, all polls pit Clinton against uncommitted). According to Real Clear Politics, Clinton held a 19.2 point lead over Obama in national polling on December 1st. But by January 15th, when the Michigan primary took place, that lead was down to 10.4 points. A lot had changed after Iowa, and it would probably have changed in Michigan.

(ii) For that matter, why not instead use a Michigan poll conducted six weeks after the primary, like the one Rasmussen conducted on March 6th? In that poll, Clinton and Obama were tied at 41 percent.

(iii) If the Clinton campaign thinks that polls are an accurate measure of the popular will of the electorate, it has trouble claiming the moral highground on the popular vote argument, when current polling shows Obama ahead of Clinton by an average of 10.2 percent.

If Davis insists on using polling to allocate the Michigan delegates, it would seem logical to use the exit poll from the day of the election, which has the virtues of being contemporaneous with the election and consisting of people who actually voted in it. What does the exit poll reveal? If all candidates had been on the ballot, support would have broken down: Clinton 46, Obama 35, Edwards 12, Kucinich 2, Richardson 1.

The exit poll also suggests that very little of the uncommitted support was intended for Clinton. By doing some very simple algebra, we find that uncommitted supporters would have given 77.1 percent of their support to Obama, 19.1 percent to Edwards, and 3.8 percent to Clinton had all names been on the ballot.

And interestingly, some significant fraction of Clinton’s support would have gone to Edwards and Obama had their names been on the ballot. Specifically, 11.6 percent of Clinton voters indicated that their first choice was in fact Obama, and another 6.6 percent John Edwards.

I took the liberty of reassigning Michigan’s vote based on the exit poll results. In accordance with the exit polls, the Uncommitted vote was assigned 77.1/19.1/3.8 to Obama/Edwards/Clinton, and the Clinton vote was assigned 81.8/11.6/6.6 to Clinton/Obama/Edwards. The vote that went to the other candidates (Kucinich, Dodd, Gravel) is a little tricker to figure, but it appears that 33.2 percent of the “other” vote would have gone to Edwards, 22.3 percent to Obama, 44.5 percent would have stayed with one of the minor candidates (essentially none would have gone to Clinton). Using these figures and the district-by-district results prepared by thegreenpapers.com, we come up with the following reallocated Michigan vote.

If one accepts Davis’s argument that polls are an accurate way to evaluate the voters’ intent in Michigan (and uses the election night exit poll — the only poll conducted within a three-month window surrounding the Michigan primary) then Clinton would have beaten Obama by about 50,000 votes in Michigan.

We can also use these reallocated vote totals to assign delegates based on the usual formulas. Note that John Edwards failed to achieve 15 percent viability in any congressional district, so all of the delegates are assigned to Clinton and Obama.

According to this procedure, 69 delegates should be assigned to Clinton and 59 to Obama; none to the other candidates. Interestingly, the 69-59 split exactly matches the one now proposed by Michigan’s Democratic Party.

Florida’s compromise solution is even easier. Clinton won 50 percent of the vote, while Obama won 33 percent of the 1.7 million Democratic votes cast. According to Thegreenpapers.com, that would give Clinton 105 delegates and Obama 69 delegates. That leaves 11 elected John Edwards delegates yet to decide, as well as 13 still unpledged superdelegates. (Eight supers have already decided for Clinton and five have decided for Obama).

Although I have fewer objections to counting the Florida vote as is, I fail to see how this in any way qualifies as a “compromise”, since it’s Clinton’s strongest possible position.

Practical politics: Winning the November election

Such solutions for the seating of Michigan and Florida, rooted as they are on neutral and long-standing principles of law and equity, are also required by practical political realities if the Democrats want to win the White House in 2008.

If more than 2.3 million Democrats in Michigan and Florida are told their votes didn’t count even though their party leaders were willing to revote, that could anger them, to put it mildly. If they blame Obama for not supporting the revote while still blocking a fair solution by the Rules Committee, essentially not permitting their January votes to count, they are likely to be angrier still — if, that is, he is the Democratic Party’s nominee. In a close election that could mean the difference between the Democratic candidate carrying or losing Michigan and Florida.

Is it worth risking the White House in November by not accepting this fair solution?

I don’t think so — too much, such as the Supreme Court and Roe v. Wade, hangs in the balance.

But which campaign is blocking a compromise now? Which campaign is not amenable to the 69:59 split proposed by the Michigan Democrats, or the solution to count Florida as half-delegates, as proposed by Clinton supporter Bill Nelson? The answer, in each case, is the Clinton campaign.

Moreover, it is hardly clear that voters are directing their anger on the issue particularly at Obama. While Clinton has outfundraised Obama in Florida ($9.02 million to $5.66 million), the opposite is true in Michigan, where Obama has outfundraised Clinton $1.39 million to $1.15 million. (In the April fundraising period, Obama roughly doubled Clinton’s take in Michigan, raising $305,794 to Clinton’s $164,187). Also, while Clinton has tended to perform stronger in general election polling in Florida, Obama has usually had the edge in Michigan.

It would seem from looking at these figures that Florida voters are directing most of their ire at Obama, and Michigan voters most of it at Clinton. As such, both sides have an incentive to compromise.

Lanny Davis’ solution is not a compromise. On the contrary, it is so intellectually dishonest as to render a compromise more difficult.