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By Brendan Loy
Demetrius Jones, who started at quarterback in Notre Dame's season opener against Georgia Tech with disastrous results, didn't make the trip to Michigan with his teammates, and will apparently transfer to another school -- specifically, Northern Illinois. (Hat tip: kcatnd and BGS.) He'll be the second of the four Irish QBs from last spring's Blue-Gold Game to transfer. Zach Fraser went to UConn.
By Brendan Loy
There was a big-time high-school football grudge match just down the road from us this evening, as West Knoxville archrivals Farragut and Bearden played their annual game. The traffic was insane, and there were cars parked all over the place; the game apparently draws thousands. I didn't go, but it seems the home team, Bearden, lost a heartbreaker in overtime, 35-28. Farragut has now won eight consecutive games over the Bulldogs, dating back to 2001. (That includes two playoff games.)
Speaking of high-school football, back in Connecticut, Newington won its opener tonight, 30-12 over Hartford Public. Nice!
The start of the Indians' season got me thinking -- and I know anyone reading this who graduated from NHS in the late '90s or early '00s will find this just as mind-boggling as I do -- this year's crop of NHS seniors have never seen the Indians have a losing season. Never! To them, Newington has always been a winning team!
(After ten straight losing seasons from 1994-2003, including a whopping 3-38-1 record during my four years there, Newington has gone 9-2, 7-3 and 6-3-1 the last three years. And now they're 1-0 and counting. Go Indians!)
By Brendan Loy
No, not those Trojans. The Troy Trojans. They're leading Oklahoma State, 27-10 with 3:56 until halftime, live on ESPN2.
Here's hoping they hold on -- for one of two Trojan victories over a Big 12 team this weekend!
By Brendan Loy
Don't miss the post below about my newly released article defending the Electoral College, "Count Every Vote -- All 538 of Them."
(It's gotten a bit buried since I posted it at 12:39 AM this morning, so I figured I should plug it again.)
This post will remain on top for a while; new stuff will appear below.
By Brendan Loy
With regard to Erwin-gate*, NRO's Victor David Hanson says UC Irvine Law School should re-hire Chemerinsky. (Hat tip: InstaPundit.)
Personally, I think they should re-hire him, and then re-fire him, just for kicks. It'll be like George Steinbrenner and Billy Martin for the ivory-tower set. Fun times all around!
Speaking of which, it's now mid-September, which means it's time for this purported baseball fan, i.e. me, to start actually paying attention to my Red Sox. (I know, I know: bandwagon, etc. But dammit, 162 games is too long. My A.D.D. can't handle it. Hence my tendency to "tune in" sometime in September.) Conveniently enough, there's a Red Sox-Yankees series this weekend to get me back into the swing of things. As Mgoblog says, "Your Hate Makes You Strong." (That reminds me: Michigan sucks!!)
The series is at Fenway, and really, Boston mostly just needs to avoid suffering another sweep. The Yankees have been on quite a roll lately, but the Sox are still 5 1/2 games up in the AL East, their biggest lead this late in the season since 1986, so even, say, losing two of three to the Bronx Bastards would leave Boston with a reasonably comfortable 4.5-game cushion with 12 games to go (13 for the Yankees) when the series -- the last Boston vs. New Yawk showdown of the regular season -- is over. On the flip side, winning two of three would mean a 6.5-game lead, and a Red Sox sweep would give the good guys a virtually insurmountable lead of 8 1/2 games -- and would put the Yankees back in danger of not getting the wild card. So that'd be nice.
Anyway, GO SAWX! We broke the Curse in 2004, and in the process we humiliated the Yankees in historic back-from-3-0 fashion, but we still haven't beaten them in the division race -- that is to say, been better than them over the course of the entire regular season -- since, like, forever. So let's wrap that up this weekend, shall we?
P.S. Boston's magic number is 11. Each win this weekend reduces it by 2.
* A.k.a. L'Affaire Chemerinsky. (Hat tip: Glenn, again.)
By Brendan Loy
Has TCU gone from "this year's Boise State" to "this year's Fresno State"? The Horned Frogs, once considered the most likely non-BCS-conference team to crash the big-bowl party in 2007-08, followed up its drubbing at the hands of Texas with a stunning loss to Air Force last night. The Falcons rallied from a 14-point fourth-quarter deficit to win 20-17 in overtime. They improved to 3-0; TCU is now 1-2, and 0-1 in the Mountain West conference. I daresay the Frogs' coach is probably cursing his team's schedule right now: in retrospect, visiting Texas on a Saturday and then playing at Air Force on the following Thursday may not have been the best idea.
(Re: "this year's Fresno State," I refer, of course, to the post-USC-game Bulldogs, not the 8-1 squad that almost stunned the Trojans at the Coliseum on November 19, 2005. That team looked BCS-worthy, but since then, they've been an enormous disappointment, going 5-13 in their last 18 games starting with that loss.)
P.S. In comments, Randy predicts that Air Force will be "the Boise State of this college football season." Hey, it could happen! If they can win at BYU next Saturday, the rest of their schedule looks pretty reasonable... and now I'm debating whether to say "except for the game at Notre Dame on November 10." Frankly, winning at home against UNLV and Wyoming might be bigger challenges this year than beating the Irish... though hopefully ND will be much improved by November, and it is at Notre Dame Stadium. But I daresay Notre Dame's "easy" last four games may have just gotten a little less easy.
By Andrew Long
[Andrew guestblogging.]
Whether they realize it or not, Notre Dame's season just got a little uglier -- and they haven't even lost to Michigan yet. As part of the unfolding scandal now surrounding Bill Belichick and the New England Patriots, Paul Zimmerman reports an interesting nugget rife with implications:
Marinelli was the defensive line coach in Tampa Bay when the Bucs beat the Patriots in the 2000 regular season opener and did a good job controlling New England's offense. After the game the Patriots' offensive coach, Charlie Weis, was overheard congratulating the Bucs' defensive coordinator, Monte Kiffin.
"We knew all your calls, and you still stopped us," Weis said. "I can't believe it."
He couldn't believe it because the Patriots had videotaped all of the defensive signals in their last preseason game, which was against the Bucs.
Now, I'm not suggesting Charlie Weis still participates in such blatant attempts at cheating (all bitterness of Weis' poor gamesmanship ruining Desmond Reed's career aside), however, it does lead to a few questions:
I think the answers to the above two questions are terribly obvious, and this must be disconcerting for Domers. The evidence mounts that not only is Weis not the great coach he was cracked up to be, he also isn't the most ethical role model for Notre Dame.
Obviously Urban Meyer was Notre Dame's real target when the Golden alumni turned on Ty Willingham after the 2003 season and sabotaged his recruiting efforts with over-the-top threats, demands, and innuendo, but even though Domers congratulated themselves on getting the "genius" Weis after whiffing on Meyer, did they shoot themselves in the foot even worse than even their biggest detractors imagined?
There's no way Domers will admit how badly they treated Ty after the rough transition year in 2003, when Davie's option system and personnel were finally being flushed out for brand-new personnel for the still-emerging West Coast Offense and a bunch of new starters on defense. And without a doubt, the ten-year, $40 million contract Weis has means the current coach will not be expeditiously run out of town like Ty was. But we can hope that Ty's current success -- and the latest revelations about Weis and Belichick -- will once again teach Notre Dame to put personal integrity, morals, and academic commitment above greed and the yearning to return to the glory days when Notre Dame could rely on its built-in advantages (money, media exposure, and religion) to win national titles. There is still time before the Golden Dome is tarnished much further.
By Brendan Loy
My mom has been doing some genealogical research, and has apparently found the answer to a question I've long wondered about: just how many generations ago did the Irish side of my family (the McNamaras) emigrate from the old country and come to America? It seems the answer is six. My dad is a fifth-generation American on the McNamara side, and I'm sixth-generation.
According to my mom's research, my great-great-great-grandfather, John McNamara, was born in Ireland in 1822. His wife Mary, my great-great-great-grandmother, was also born in Ireland, in 1828. I don't know when they got married, but it seems they had their first child in 1855 or thereabouts, in Connecticut. Their fifth child, born in 1863 (also in Connecticut), was Daniel, a second-generation American and my great-great-grandfather. Dan McNamara begat Joe McNamara, who begat Helen McNamara Loy, my paternal grandmother. And the rest, as they say, is history. (Though as Nana Loy would point out, "What the hell do they know? They're a bunch of horse's asses anyway." Or words to that effect. :)
My understanding is that the McNamaras always claimed that they had come over before the Great Potato Famine, but we've never been sure if that claim was accurate. It has been speculated that certain proud members of the family might have wanted to separate themselves from the riffraff, if you will, by pretending they weren't forced to come here because of starvation, as so many other "shanty Irish" were. Well, now we finally have some dates, and let's see: if we assume that John and Mary were married in Ireland, and that she was at least 18 when they got hitched, that would mean they left Ireland sometime between 1846 and ~1855.
The famine was from 1845 to 1849. Ahem. You do the math.
So my ancestors, it seems, were quite likely refugees of the Great Potato Famine. Interesting.
UPDATE: Belatedly, it occurs to me that my logic vis a vis the timetable may not be entirely airtight. All we know, I think, is that John and Mary were both born in Ireland; we don't actually know that they emigrated together, as adults, as opposed to emigrating separately, as children, and then meeting and marrying in America. The latter is also possible, and it would not be at all surprising if two first-generation immigrants met in this country and married each other; immigrant communities were very tight-knit in those days. If that were the case, it would mean the McNamaras did indeed come over here before the famine.
Of course, the other thing that's odd about this whole train of thought is that, although I talk about these great-great-great-grandparents as "the McNamaras" because they are the ones who carried the name McNamara, the reality is I'm really only talking about a small sliver of the Irish ancestry from the "McNamara side" of my grandparentage (i.e., from my Nana Loy). One-eighth of it, to be exact. John and Mary McNamara were Nana Loy's great-grandparents; they represent a mere 12.5% of her bloodline. Yet she was 100% Irish. That means seven-eighths of Nana's (and my) Irishness came from other ancestors, who may have emigrated at other times, under other circumstances.
Regardless, I find this sort of stuff fascinating. I wish I knew more about my ancestors; I'd love to read their life stories, if they were written down anywhere. Even little snippets of information, though, make me feel more connected to these long-ago ages past. For my Immigration Law class at Notre Dame last fall, we had to write a brief paper about our own "immigration history," and in the course of researching it (again mostly via my mom), I learned all sorts of stuff I'd never known before, like how the Loomers (my maternal grandfather's side) are really a very old family in this country, dating back to the mid-1600s, as I recall. They didn't come over on the Mayflower, but they weren't that far removed from it either. ... Alas, very very little is known about the Loys. We don't even really know where they came from, or what the origin of the name is.
By Brendan Loy
Regular readers may remember my various posts last spring about my in-progress paper defending the Electoral College on pragmatic/procedural grounds. Well, it's finally done, and I've uploaded it to SSRN, where it's now available for download.
Here's an excerpt from the introduction:
In the minds of many observers, the 2000 presidential election was the ultimate argument against the Electoral College. For the first time since 1888, the popular-vote winner lost the electoral vote, and the people's second-favorite candidate became president. Adding insult to injury, the electoral vote was itself extremely close, and the decisive state was even closer. Thus, for the first time since 1876, an inversion between the electoral and popular votes coincided with a protracted dispute over the Electoral College winner—and for the first time ever, the dispute was settled not by Congress or a congressionally appointed body, but by the United States Supreme Court. All things considered, the 2000 election became Exhibit A in many arguments for the elimination of the Electoral College.
It is possible, however, to take precisely the opposite view: that the 2000 presidential election was the ultimate argument for retaining the Electoral College. This position is not sexy or politically correct; it is rooted in bald practicality, not democratic idealism. Yet it has considerable merit. A national popular vote system may be a good idea in theory, but in reality, it would become a nightmare in a close election. And the interstate-compact system, a bizarre extraconstitutional hybrid that is neither a true popular-vote election nor a functional Electoral College, is even more nightmarish than direct popular-vote plans. ... [I]t creates unclear lines of decision and a high likelihood of lengthy and unpredictable legal disputes when the winning candidate's margin is narrow.
These problems cannot be ignored, because without question, margins will sometimes be narrow. In 2000, for example, Al Gore's popular-vote margin over George W. Bush was barely one-half of a percent of the votes cast, which would be close enough to trigger a recount in some states. Judge Posner acknowledged this point in a review of the Bush-Gore dispute, noting that "if Presidents were elected by popular vote, a nationwide recount might have been unavoidable in 2000 because Gore's margin was so small." Yet that race looks like a landslide compared to Kennedy's 0.16 percent advantage over Nixon in 1960, a hairbreadth edge that would have been very difficult to accept as final without the availability of a national recount to confirm the result. Even closer was the election of 1880, in which James Garfield defeated Winfield Hancock by just 9,070 votes, or 0.098 percent.
In all three of these elections, and every other close vote in American history, the Electoral College isolated any controversies to individual states. But under an interstate-compact or direct-election plan, such an eventuality would create controversy and legal wrangling on an almost unimaginable scale. Every alleged anomaly, everywhere, would become the subject of potential legal action, because it would no longer matter whether a specific state was itself close. And the incentive to look for anomalies would be extremely high: as Posner wrote in reference to the 2000 race, "There is little doubt that if Bush's people nosed around heavily Democratic precincts throughout the nation they would come up with colorable arguments about voter and tabulation error that might have determined the election [if the president were elected by popular vote]."
It is worth recalling that Florida was hardly the only state where voting and vote-counting anomalies may have occurred in 2000. There were alleged anomalies in many other states, but they were generally not litigated because those states were won in landslides, so the possible discrepancies did not matter to the candidates. In a national popular-vote system, by contrast, the concept of "winning" a state would be meaningless; any close presidential election would be a nationwide free-for-all. Every state and county courthouse in the country would become the front line in a pitched battle over a razor-close vote.
Worse, the "final" resolution might not be so final, thanks to the likely thicket of legal challenges. In an interstate-compact system, these could include a to the overall structure of the compact system itself. In a true direct-election system, finality could be an even bigger issue, as there would be no built-in mechanism to definitively end it all — no meetings of the electors at which the 538 votes that matter are finally cast, no congressional tally of those votes to conclusively choose the president and vice president. Without such a mechanism, challenges could drag on indefinitely, with state and federal judges extending deadlines in the name of "counting every vote." What if "every vote" is not counted to everyone's satisfaction by January 20? What if differing interpretations of the vote count produce different "final" results, perhaps with different winners? Which "winner" is inaugurated?
If the dispute over Florida's election in 2000 proved anything, it is that accurately measuring the will of millions of voters is very, very difficult. Again quoting Judge Posner, "the counting of millions of ballots by any method is liable to error." And yet Florida's vote total was just under 6 million; the difficulties would become far greater if we needed an accurate national count of more than 100 million votes. Many steps can and should be taken to improve the accuracy of our voting system, regardless of whether the Electoral College is retained. But we must be realistic: there will always be the potential for disagreement about the result when the vote is close enough, and our electoral system must be robust enough to retain its legitimacy, functionality and timeliness even when such disputes occur.
As measured against the national popular vote, the Electoral College will very occasionally, in a very close election, give us the "wrong" president. But it always gives us a president, and does so in a reasonably timely fashion, well before the January 20 inauguration. It may be unfashionable to defend a system that sometimes fails to accurately reflect the national popular will, but as long as inversions of the electoral and popular vote remain rare and limited to very close elections — ones in which the popular will is hardly overwhelming, and may indeed be quite unclear — this admittedly imperfect system is vastly preferable to the alternative. Whatever its abstract merits, the practical reality is that direct election by national popular vote could, in a razor-close election, produce a true legitimacy crisis that would threaten to seriously undermine the presidency itself.
I've submitted the paper (or, ahem, "article") to a whole bunch of law reviews, law journals, etc., hoping to get it published. Whether I get any nibbles remains to be seen. If I fail, I'll make some revisions and try again in the spring. But I wanted to give it a shot now.
I'm told it's okay to post the article on SSRN while it's under consideration for publication elsewhere. Apparently law journals, in contrast to some other types of publications, don't generally care about that -- and indeed, apparently an SSRN posting can occasionally generate enough buzz to make it more likely that a paper will get published. I'm not expecting that, however. I mostly wanted to post it there so that y'all, my blog readers, can finally look at the darn thing, considering how many of you asked back in April and May when you'll be able to read it. :)
Many thanks to Professor Mayer, who has been incredibly helpful throughout this whole process. A footnote on Page 1 thanks him, and also thanks my dad, "Joe Loy, a retired elections administrator in the state of Connecticut, who instilled in the author a lifelong interest in elections and a healthy understanding of the importance of procedure." :)
Anyway, here's another excerpt, from pages 51-56, outlining several of the key problems with a direct popular-vote system:
A direct election system would strip away several all-important safeguards, inherent to the Electoral College system, that ensure a timely resolution and prevent a constitutional crisis—and all in the name of choosing the “right winner,” which is impossible to do with any certainty in a close election anyway, even if one accepts the dubious proposition that “the right winner” means nothing more than “the guy who got the most votes.”
One of the most important lost safeguards, and one that cannot be recaptured by any possible permutation or amendment of a direct election proposal, is the loss of the current system’s invaluable tendency to “quarantine” election disputes to individual states. Even in the wildest imaginable Electoral College scenario, only a small handful of states would ever be truly “in play” and relevant to the determination of the winner. In 2004, the only such state was Ohio; 2000, it was Florida; in 1960, Texas and Illinois; in 1888 and 1880, New York; in 1876, South Carolina, Louisiana, Florida and Oregon. Outside of these states, any discrepancies or irregularities in those elections simply did not matter, either because they happened in a state too small to affect the national outcome or (more often) because the winning candidate’s margin in the state in question was too large to be seriously threatened. In a direct election system, by contrast, each state’s individual margin does not matter; the state tallies only matter as part of a larger whole, so the difference between, say, a 1,000,000-vote lead in a given state and a 1,005,000-lead in that same state is of equal significance to the difference between a 2,500-vote lead and a 2,500-vote deficit. In either case, the difference is 5,000 votes out of the national total. This portends an enormous increase in the numbers of challenges and lawsuits in the event of a close election. …
Moreover, because the challenges to a national popular election would originate in different state court systems, and probably the federal court system as well, it would be very difficult to streamline these lawsuits into a single case or small group of cases working their way up the appellate chain toward a single final resolution, as occurred in Florida in 2000. Jurisdictional issues would likely prevent such streamlining, and even if not, consolidating cases from multiple states would create a nightmarishly complex set of facts for any court to analyze and adjudicate. Simply put, the state-by-state electoral “quarantine” created by the Electoral College is the only thing holding back the floodgates of judicial chaos in the event of a close election. A tight race under a direct election system would lead to a torrent of litigation that would make Florida 2000 look like an exercise in litigious restraint. The end result could be paralysis and constitutional crisis, seriously undermining the system’s ability to fulfill the “undisputed and timely winner” purpose of presidential elections.
Another lost safeguard is the 200 years of history and precedent that underlie the Electoral College system and imbue it with legitimacy. No matter how well-drafted a constitutional amendment creating a wholly new system might be, it is impossible to anticipate every conflict that could potentially arise. Thus the courts will inevitably be drawn into adjudicating issues that have never been considered before, and while courts are routinely called upon to do that in other areas of the law, there ought to be a strong presumption against “reinventing the wheel” when it comes to the method of choosing the president of the United States, the most powerful official in our government. The long history of the Electoral College creates public confidence that the system will be able to successfully navigate close elections, and that same history guides the courts and Congress as they consider how to follow procedures and resolve disputes. We know what the rules are, we know how they have historically been interpreted, and we know they are not just going to change in mid-stream. Essentially starting from scratch would create considerable uncertainty, and again, disrupt the certainty of an undisputed and timely winner.
Yet another problem with a true direct election system is the elimination of the mid-December and early-January deadlines—which are, as noted earlier, more than mere deadlines, but are in fact beginning and ending dates of wholly independent stages in the election process. This multi-stage aspect of the Electoral College system creates the aforementioned “instant replay” effect: once a new play starts, the old play can no longer be reviewed. Once the electors have voted, and especially once Congress has counted and certified their votes, challenges to close elections in individual states become irrelevant, thus preserving the integrity of the result and preventing a legitimacy crisis if disputes arise later. A true direct election system might have more malleable deadlines, as it would likely be a much more linear process. Even after the “final” certification of the national vote tally is announced, it is not difficult to imagine it being revisited in the name of “counting every vote” if a late development threatens to change the result. A state or even a federal court might adopt the logic of the Florida Supreme Court, which extended a statutory deadline on the basis of a legal interpretation that rested in part on its overarching belief that “the will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle in election cases.” The point here is not to lambaste the Florida court or rail against judicial activism, but simply to point out that the battle cry “count every vote” is a compelling one, and well-meaning judges may be sorely tempted to follow its call even when important deadlines stand squarely in the way. This may appeal to strict majoritarians, but the consequences for timeliness and certainty would be disastrous.
A good example of what could occur in a fairly linear direct-election system, devoid of the sort of truly ironclad deadlines that characterize the Electoral College system, is the 2004 Washington gubernatorial race. As noted earlier, vanquished Republican candidate Dino Rossi did not concede until he was defeated in a final court challenge on June 7, 2005—fully seven months after the election and five months after Gregoire’s inauguration. Consequently, his election contest morphed into a “five-month legal effort to remove her” from office. When the courts finally forced Rossi to give up, a spokeswoman for Gregoire—by this point roughly 10 percent done with her four-year term—said the decision “brings an end to a long campaign. This is a moment that will allow her and the state to move forward in addressing all of the pressing issues before us.” It should go without saying that a similar scenario would be devastating on the national level. The impact of such a cloud hanging of the president’s legitimacy would be far-reaching and crippling. Thus, in an extremely close election, timeliness and certainty easily outweigh any “right winner” benefit, since the scenario in question could only occur in an extraordinarily close election, where the “right winner” is essentially a flip of a mathematical coin anyway.
Again, if you want to read the whole thing, just go to its SSRN page and download it.
Viva the Electoral College! :)
P.S. To those who volunteered to be "beta-testers" for the paper, I apologize for never sending you a copy. My plan was to make my "final" revisions earlier in the summer, then get input from the "beta-testers," make whatever changes might result from that, and then submit it to SSRN and the law reviews. But I didn't finish my revisions till much later than I hoped, and with deadlines approaching, I had to skip over the "beta" phase and pull the trigger on the submissions.
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