Tuesday, June 29, 2010

Alabama's 5th District - The Home of the Blues Should Be Painted That Color

In Florence, Alabama, there sits a log cabin, the birthplace and childhood home of William Christopher ("W.C.") Handy, known as the Father of the Blues; today, it serves as a museum and monument. Florence sits in Alabama's 5th Congressional District, which has been a focus of national attention since the soon departed, and never regretted, Congressman Parker Griffith switched to the Republican Party in a "Christmas Surprise" in December 2009. Griffith was bounced by his new party in the June primary, and the general election contest will be between Democrat Steve Raby and Madison County Republican Commissioner Mo Brooks. And now, the 5th District is being subjected to another round of - are we ready? The CONVENTIONAL WISDOM.

If you're like me, after a few decades of working in Alabama Democratic affairs, the phrase "conventional wisdom" engenders a reflexive flinch. Because by now, we know what the Conventional Wisdom is going to be. "The district is white-majority, it's in Alabama. A Democrat can't win it." As George and Ira Gershwin, so clearly influenced by Handy, wrote, "It Ain't Necessarily So." In the case of what is today the 5th District, the last time a Republican won a general election to this seat as such, that Republican was John Benton Callis, and most of the votes were counted by his recent comrades in blue uniforms. (After his one term in Congress, Callis moved back to Wisconsin.)

True to form, inside the Beltway, this district is being referred to as some sort of likely Republican hold.
CQ/Roll Call refers to the district as "Leans Republican." What did CQ/Roll Call have to say about the Democratic primary?

The apparent Democratic frontrunner is former Alabama Board of Education member Taze Shepard, an attorney who is the grandson of the late Sen. John Sparkman (D).

That would be the same Taze Shepard who got an impressive 22.7% of the vote, to Raby's 61.7%, in the primary. (I'm not sure to whom CQ/Roll Call was talking. It wasn't me.) The New York Times gives them one-up, calling the seat "Solid Republican." (The Washington Post's politics page simply refers to the seat as "open," without offering a forecast at this time. Interestingly, they do the same thing with the black-majority 7th District, which has exactly zero chance of going Republican. It's interesting how such "labels" make a Republican takeover appear more likely ...)
Let's see if we can't help CQ/Roll Call and these other folks get a better handle on the reality on the ground in the 5th.

The numbers. I understand that an understaffed editorial office in Washington has trouble keeping track of 435 Congressional districts, while at the same time trying to follow 100 Senate seats, 50 governorships, the White House, and the occasional embryonic Presidential campaign. But ignoring 140 years of voting history, and important voting metrics, is hard to justify. Part of the problem is faulty methodology. Especially when an incumbent is not in the mix, most of these sources take time to look at one metric, the district's Presidential vote. This in itself is unwise. 83 House districts are currently held by members whose party failed to carry their district in the 2008 Presidential election. A disproportionate number of those 83 members of Congress are Southern Democrats, reflecting a longstanding Southern history of states and districts splitting their ballots, voting Republican in the Presidential election, but Democratic in Congressional and local races.

Slavish devotion to the "Presidential metric" presupposes that someone who votes for one party for President will follow that party down the ballot. While there is strong and well-accepted empirical evidence of a correlation, that does not always hold, especially in non-Presidential years. In the case of the 5th District, a look at downballot voting patterns reveals that it is fundamentally a Democratic district, which happens to vote Republican in most Presidential elections. (And a passing note, the "Southern" Democratic tickets headed by Clinton and Gore from 1992-2000 carried many of the counties in this district.)

If you want to know how folks vote in the 5th District for Representative, you will get a better view if you look to see how they vote for Representative. State Representative in 2006, that is.



DistrictPartyCandidateTOTAL IN 5TH CD
State House 01DEMIrons8,410
State House 02DEMCurtis7,704
State House 03DEMBlack9,585
State House 04DEMMitchell5,988
State House 05DEMWhite7,071
State House 06DEMSchmitz†7,202
State House 07DEMLetson7,680
State House 08DEMDukes7,833
State House 09DEMGrantland6,349
State House 18DEMMorrow2,357
State House 19DEMHall, A.*10,449
State House 21DEMHinshaw6,063
State House 22DEMHall, L.6,100
State House 23DEMRobinson7,969



100,760
TOTAL % D IN 5TH CD
13 Seats59.0%




State House 01REPSmith4,511
State House 02REPPettus4,115
State House 04REPHammon8,097
State House 05REPCoffman5,277
State House 06REPStiles3,960
State House 07REPRobinson2,475
State House 09REPStone4,895
State House 10REPBall9,041
State House 20REPSanderford13,859
State House 21REPWiggins3,861
State House 25REPMcCutcheon9,983



70,074
TOTAL % R IN 5TH CD
4 Seats41.0%


* Currently held by Taylor (D) after 2007 special.
† Currently held by Williams (R) after 2009 special.

While the Republicans have taken one seat since the election in which this chart was compiled, that takeaway happened in a special, making it a poor model for altering observations from a cycle more like the one in progress, than like a low-turnout special.

Another metric one might prefer to the Presidential vote, in predicting a Congressional vote is ... the Congressional vote. Let's look at this district since Bud Cramer's first election in 1990, with a couple of points in mind:

* No Republican nominee

First, is the pure and simple fact that this district has a solid Democratic voting record in Congressional races - an average of 69.5% over nearly two decades! This is even better than the Democratic totals in state legislative races, and remains so even if Cramer's unopposed 2006 re-election is factored out. It's painful to watch knowledgeable people rate such a Democratic district as Republican-leaning.

But a more subtle, and perhaps more important phenomenon revealed by the above chart is the distinction between the Democratic performance in the 5th in presidential and gubernatorial election years. The Democratic nominee in this district gets a boost in gubernatorial years of an average of 4.6%, an effect that is understated by the inclusion of the 1994 gubernatorial cycle in this calculation. (The national Democratic Congressional vote hit record lows that year, a fact that was reflected in the 5th.) So, even if you make a presumption that the 52%-48% Democratic majority from 2008 is some sort of more "current" norm than the modern historical average, that baseline should look more like 56% or 57% Democratic in 2010. Suffice it to say, if you want to find an "objective number" that makes this district look Republican, you have to go looking for the Presidential totals.

A passing word is in order about that 48% GOP showing in 2008. Not only did it take place in a presidential year (remember, that means a ~4.6%
GOP swing), that swing was exaggerated by the racial polarization against Obama at the top of the ticket. Statewide exit polling data indicate that Obama got about 10% of the white vote in Alabama, and that was acutely felt in the 5th. Another factor to consider is that the 2008 general election campaign brought out serious dirt on then-Democrat Griffith, including allegations that he had deliberately low-dosed cancer patients to prolong their chemo regimens, to make more money. (Griffith was an oncologist before entering politics.) This charge was the subject of a 3,000+ GRP media buy by the RCCC, and doubtless cost Griffith several points. No one has ever whispered that sort of dirt about Raby. In fact, Taze Shepard, his primary opponent, made a strong effort to go negative on Raby in the primary. The best dirt he could find - and he made it the subject of a TV buy of at least 1,500 GRP, maybe more - was an accusation that Raby - horror! - donated to Republicans! Now, the truth was and is, Raby did so for his lobbying clients, who also need GOP votes on the Hill. But the only real effect of this media blitz was to immunize Raby from any accusation by Brooks that he's a liberal party hack. I am sure Shepard's thank-you card from Raby is in the mail.

The candidates. Raby. The Democratic nominee is Huntsville lobbyist and consultant Steve Raby. This is Raby's first venture on the ballot in his own name, but he is no stranger to the game. He served for years as a top aide to the late Senator Howell Heflin, and doubtless learnt a thing or two from "The Judge" about winning Alabama elections. Most of Raby's business is centered on the sprawling Army/NASA complex at Redstone Arsenal, and among its large contracting community.

This boosts Raby in two ways. First, his clear ties to the defense industry immunize him from the inevitable canned ads calling him a "Pelosi Liberal." Secondly, it gives him a superior entree to the substantial contributions those contractors always bestow. Both Raby's fundraising savvy, and the belief of those local contractors that Raby is the favorite, are evidenced by the fact that Raby was one of only four Democratic challengers nationally to outraise a Republican incumbent in the first quarter. (This is especially impressive if you consider the RCCC/leadership largess that was being lavished on Griffith in an effort to save his seat.) Raby grew up in cotton farming country outside Huntsville, and despite his time in D.C. and around Huntsville's rocket scientists, he retains a folksy manner and direct speech that go over well in the rural areas on the district's eastern and western ends. Raby is a multi-generational native of the district, and in the parts of this district that aren't NASA-dominated, that is an important consideration. From his long career with Heflin, Raby can tell you anecdotes at the drop of a hat, about places in the district with names like Town Creek, Center Star, Skyline Mountain and Capshaw, that would leave Brooks fumbling over his map and note cards.

Brooks. The Republicans have fielded Mo Brooks, who at first looks to have a modestly successful political record. However, at closer look, his several elections to the Alabama House, and to the Madison County Commission, have all been in districts that were carefully drawn to be safe Republican districts. More precisely, districts drawn to suck as many Republican votes as possible out of swing districts. His wins in contested primaries there show little more than his acceptability to reliable Republican voters. The one time Brooks has been on a countywide general election ballot in Madison County, after he was appointed district attorney by then-Governor Guy Hunt, he lost badly to Democrat Tim Morgan, 54%-46% - and Madison County is historically the strongest Republican region in the district. Before his win over Griffith, the last time Brooks was on the GOP primary ballot across the district was for his unsuccessful 2006 run for the Republican nomination for Lieutenant Governor. Despite the fact he was the "local" candidate (his two opponents were from 90 and 180 miles away), the "Friends and Neighbors" vote only got Brooks 49% of the vote in the counties in the 5th District. (That such a lukewarm primary candidate could trounce Griffith so badly in the GOP primary should be an object lesson for any would-be party switchers, anywhere.)

Brooks is no Ronald Reagan behind the lectern, but he does reliably, if dryly, recite the mandatory GOP line about abortion, guns, and taxes. However, in a district where the largest employer by far is the Federal government, there is a lot of sentiment for not cutting taxes too far. More problematic for Brooks is his somewhat offputting affect, which may have explained his 2006 showing. Like many alumni of Duke - of which Brooks is one - he leaves you with the distinct impression that he wants you to know that, as much better than your school as Duke is, he could have gotten in someplace even more selective had he wanted. (I already know from whom I will get the hate mail on that one.) If Brooks is to have a chance to win, he will have to make substantial inroads in - or carry - the bedrock Democratic counties on the eastern and western ends of the district. In the blue-collar towns and farmlands of those counties, aloof doesn't sell well.

Other factors. Of course, the national media line is that this is going to be a bad, bad year for Democrats. To be sure, there is some truth to that, even if the repetition of the mantra is not always borne out by facts in the real world. Special election wins by Democrats in places like the Pennsylvania 12th this year, and New York 23rd last December, keep stepping on that story line. Of course national trends will be felt here, but the terrain on which they will play out - as shown above - is much more Democratic than thought inside the Beltway.

An interesting piece caught my eye in
The New York Times last week, and I instantly thought of the 5th. Citing some fairly solid statistical evidence, it stated that the anti-incumbent-President effect is less in districts where the economy is doing better, and more in places it is worse. It posited that many of the battleground districts (among which it isn't yet counting the 5th) are faring better economically than the nation as a whole, which may result in unexpected good news for Democrats in November. Add the 5th to those economic high-performers. The 2005 Defense Base Re-Alignment and Closure (BRAC) process resulted in a net inflow into Redstone Arsenal of 4,700 jobs, not counting the associated jobs with outside contractors and suppliers, families, and the "multiplier effect." Huntsville even had to open a special website for workers moving in. Those newly-employed people are only arriving in numbers this year, and local business is feeling the benefits. Houses are being built, restaurants are opening and hiring, and schools are hiring teachers. The unemployment rate in Madison County was only 7.5% and dropping in May, well below the state average of 10.5%. When Brooks tries to work the local meat-and-three cafe with talk of the bad economy, he's apt to be greeted with the excuse that his listener has to be on time to her new job.

One other factor that I have talked about elsewhere is the top of the Democratic ticket. Raby took two wins on primary day - his race and the gubernatorial primary. He will not be dealing with the prospect of Artur Davis polarizing the electorate along racial lines (see, Obama, 10%, supra), and the head of his ticket will be Ag Commissioner Ron Sparks - whose Fort Payne home is a mere 15 miles outside the district. The Tennessee Valley has not had a native son in the Governor's Mansion since 1971, and Sparks's nomination is apt to have a lot of the Democratic base here excited. This should have an especially strong turnout impact in Jackson County, the Democratic stronghold that adjoins Sparks's native DeKalb. (The GOP gubernatorial nominee will be from either 130 miles (Bentley) or 360 miles (Byrne) away from Huntsville.) As I have noted elsewhere, solid empirical evidence has demonstrated that the "Friends and Neighbors" vote first identified by V.O. Key continues to have effects in the South, even on candidates downballot from the "neighbor." These anecdotal factors indicate that the historical 4.6% gubernatorial-year Democratic boost in this district should be even greater, given this lineup.

Gambling, as everyone in Alabama has been told by now, is a uniquely Democratic Party sin. Pray that you can resist its temptation. But if you must yield, whatever you do, don't bet on the Alabama 5th going Republican this November.

Saturday, June 26, 2010

Which Democrat for Attorney General?

Sometimes, when one is a Democrat in Alabama, it's hard to be humble. One of those times I enjoyed was contemplating the primary fields of the two parties in the race for Attorney General on June 1. To put it simply, any of the three Democrats running in our primary would be so superior to either of the losers in the other primary, that there's simply no choice. Not that the Republicans set the bar very high this time, giving their primary voters a choice between Troy the Sex Toy Boy and a lobbyist for Big Oil who's apparently never tried a case in court.

Against those two, we offered a choice among three attorneys, none of whom could be said to be less than an excellent choice for the post. Before proceeding to the point of this post - looking at the upcoming runoff - a passing word about Michel Nicrosi, who isn't in it. In many ways, she offered what we should
want in an Attorney General: an otherwise apolitical, experienced career prosecutor with a number of malefactors' scalps under her belt to show for it. Her campaign this year got sandwiched between two much, much better funded opponents. She only got up on TV in the last week of the campaign, when any ad is going to only have marginal effect in the deluge of campaign spots. Unlike her two opponents, she did not have an established political network to call on. Considering all this, her showing of 19.3% was very creditable. The bulk of her campaign consisted of personal appearances at Democratic club meetings and fish fries. Obviously, based on her vote, a lot of people liked what they saw in person. One can only hope we'll see her again in the future, whether in an elected or appointed position. My only regret with her posture for that is that she lives in Baldwin County, which makes an effort for a spot as DA or local judge difficult for a Democrat. But there are, and will be, many statewide opportunities.

In the runoff, we have a choice between former Ethics Commission Chairman James Anderson, and former Democratic Party executive director Giles Perkins. Both are well known in Democratic circles in Alabama. The climb facing Perkins in the runoff campaign is made very simple by this map showing the counties each carried in the primary (Nicrosi carried no counties). Overall, Anderson barely missed winning the nomination without a runoff, gathering 49.6% of the vote to Perkins's 31.1%. In the runoff, each has some advantages, and each faces differing hurdles. Either should be a slight favorite against Republican nominee Luther Strange in November.

Why Anderson will win the runoff. To start with, anyone who only came .4% short of winning without a runoff has to be considered the favorite in that runoff. Anderson retains his solid base among lawyers - he is a former Vice President of the Alabama State Bar - and an unsurpassed Rolodex from his years of service as the (unpaid) general counsel of the Alabama Democratic Party. In the final pre-primary finance reports, he outraised Perkins substantially, and there's no obvious reason that won't continue. While Perkins has improved his stump style over the course of the campaign (this is his first campaign for public office as a candidate), Anderson has been better in blue collar and rural settings from the beginning. Anderson's middle-of-the-road conversational style requires little adjustment in the boardroom or the union hall, and he is effective in both environments. Outside Jefferson, none of the only four counties Perkins carried constitutes a major vote center. (Shelby County is almost a footnote in the context of the Democratic primary.) In addition, the Chablis-and-brie crowd who turned out for Artur Davis, and voted for Perkins, in Jefferson and Shelby, have no gubernatorial motivation in the runoff. Anderson, by contrast, showed strong support in every other corner of the state. You cannot win a statewide race carrying only four, or even seven or eight, counties, even if one is Jefferson. In short, it seems that Anderson has so many advantages that Perkins simply doesn't have time in six weeks to overcome them.

Why Perkins will win the runoff. Still, six weeks is a long time, especially in politics. This will be the only statewide race on the ballot, and in many counties, the only race on the ballot. This means that the electorate in the runoff will be a lot smaller than that in the primary, and a change in the electorate can always mean a change in the result. Perkins scored a "must" win when he picked up the New South endorsement for the runoff. (New South had endorsed Nicrosi in the primary.) Given the arithmetic, Perkins can't afford any major "losses" on the ground, and he came through in the biggest test of the inter-primary period. Perkins was faulted as ED of the Party, whether rightly or not, for being obsessed with the I-65 corridor, and ignoring traditional Democratic strongholds in the Shoals, Gadsden and East Alabama. During the primary campaign, he was also tagged, though by people pushing his opponents, as not campaigning outside greater Birmingham. (His high-visibility walk along the Selma-to-Montgomery march route notwithstanding.) Since the primary, he has certainly been more active in other parts of the state, and, as the Nicrosi vote shows, face time = votes. Finally, the configuration of other races on the runoff ballot may tilt slightly his way. His strongest area is metro Birmingham, and Jefferson County features several local runoff races that will increase turnout there. He also ran stronger in the western Black Belt than statewide, and the New South nod will help there. Also critical in light of Perkins's stronger support in that area, is that turnout there may be higher due to the Smoot-Sewell runoff in the 7th Congressional District. One interesting potential game-changer was Perkins's announcement of his support for a moratorium on the death penalty in Alabama until certain reforms can be implemented. It will be interesting to see if Perkins can use the unpopularity of the death penalty among the black population (upon whom it is disproportionately used) will enable him to peel ADC-influenced votes away from Anderson. It will bear close watching over the next few days, to see if this issue gains traction.

Why Anderson would be the stronger nominee. As I have noted elsewhere, the Democratic ticket this year has a north Alabama tilt for the first time in decades. Anderson's Montgomery roots would make a nice balance. His 31-year career as a litigator will make a better contrast to Big Oil Luther's lobbying-only experience, than will Perkins's mainly transactional practice. Anderson is well known in white Montgomery - which includes the Republican base counties of Elmore and Autauga - as a moderate, and as something of a white-shoe lawyer, whose firm's clientele includes many local businesses. This gives him the chance to carve votes from the GOP core. Finally, his connections among the Alabama Bar can't be matched. To the extent people across the state ask their personal lawyers for guidance on this race, Anderson will clobber Strange. Finally, any realistic assessment of the two candidates' electability has to consider the extent to which Perkins's commendable stance on the death penalty might be used against him in the general election campaign. Charlie Graddick's "fry 'em 'til their eyes pop out" death penalty ads from 1978 come to mind.

Why Perkins would be the stronger nominee. Several statewide Democratic campaigns in recent years have faltered on the basis of low turnout in Democratic precincts in Jefferson County. Don Siegelman's 2002 campaign comes to mind. Perkins is very, very close to the political operations of former Birmingham Mayor Richard Arrington. (Perkins is the son-in-law of Bev Head, one of Arrington's closest and earliest supporters.) Ron Sparks's triumph in Jefferson County shows that the Doc still knows how to turn out votes, and those same gears would be enthusiastically churned for Perkins. While Anderson boasts Montgomery connections, Perkins is a Mountain Brook resident, and a member of St. Mary's Episcopal Church alongside such blue-blood Birmingham families as the Arants, deBardelebens, and Harberts. He, too, can claim the ability to make inroads among Republican strongholds.

Why either should win in November. I hate to keep harping on the same issue, but ... if the Business Council had known the Deepwater Horizon was going to explode, they would doubtless have recruited another challenger for Troy King, as much as they love Big Oil Luther. The "lobbyist" handle was going to be a millstone around Strange's neck under the best of conditions, but his list of Big Oil lobbying clients should be a deal-killer in the must-win Republican precincts of Baldwin County. Add to that, Alabamians are going to be leery about electing an attorney general who has never uttered the phrase, "Ladies and gentlemen of the jury ..." Don't think either Anderson or Perkins will let that go unmentioned. Also, because Strange is inextricably tied to Boob Riley, he will poll well below Republican averages in the Dothan area (also a must-win area for any successful Republican), where Riley's bingo raids have destroyed literally thousands of jobs. There's nothing like unemployment to sour a voter on his Republican past.

Strange did not win the Republican primary because he's a great prospective attorney general. He won it because his name is not "Troy King." A wise political operative once told me, "You want to predict the winner of a Republican primary? Go with the guy they
think they are supposed to vote for." In this case, that was Strange. Prediction: by late August, you will see "polls" in The Birmingham News and its sister Newhouse rags publications showing Strange with a comfortable lead over the Democrat. Those polls will probably originate from Rasmussen, or from Public Policy in North Carolina. Just remember, those are the same papers, publishing the same pollsters, who gave Artur Davis a 10+ point lead over Ron Sparks up until the day of the primary. Then enjoy your laugh.

Battle of the Ads. OK, for the sake of equal time, I linked to Perkins's main TV spot. But sorry, Giles, the best TV spot of the year is Anderson's first ad, which got a heavy statewide buy, and became almost as famous as the Dale Peterson guns-and-llamas ad. Believe me when I tell you, this ad got more notice nationally, in the professional political community, than the Peterson joke. Its ironic self-deprecation manages, in 60 short seconds, to push at least a dozen buttons of satire about all that is wrong with media campaigning today - all while still doing a very effective job for its candidate. (The casting even made a presumptive hint about Anderson's winning of a key endorsement.)






In a nutshell, as tempting as it is to intermeddle in the Republican gubernatorial runoff, we do have important business in our own yard on runoff day. We have two good candidates from whom to choose, for a position we really need to take this year. The politicization of "criminal" investigations, and high-handed GOP "opinions," has gone on for 16 years, and needs to stop. While I think James Anderson would make the stronger candidate in November, and he remains a clear favorite in the runoff, both are making good arguments for their campaigns, and deserve our presence at the polls (in our primary) on July 13.

Tuesday, June 22, 2010

The 7th Congressional District - Who Shall Represent the Pettus Bridge in Congress?

Winding from the downtown skyline of Birmingham, southward through Selma, and almost to Mobile, is Alabama's 7th Congressional District. This is a district of history, providing Alabama with its first black Congressman since Reconstruction, and again poised to make history this year by electing its first woman to Congress, other than the widow of an incumbent. In terms of this blog, it also occurred to me that if I want to say something about this district, I'd best be typing, as the general election vote in this 63.3% black district promises to be one of the great yawners of November. The action, as it has been from this district's birth in the 1992 cycle, is in the Democratic primary.

This is, of course, an open seat, vacated by Artur Davis in his Quixotic bid to become a triangulating black governor of Alabama. The runoff gives voters a choice between Jefferson County Commissioner Shelia Smoot, and Birmingham lawyer Terri Sewell. Sewell led the primary with 36.8% of the vote, with Smoot getting 28.6%. State Representative Earl Hilliard, Jr., of Birmingham, son of the former Congressman from this district, narrowly missed the runoff with 26.8%, and Martha Bozeman, a former Davis staffer, trailed with 7.8%.

The Horserace. The traditional saw that a primary frontrunner is the presumed favorite in a runoff may have some impact here, but there are a lot of wild cards in this deck. The governor's race is no longer on the ballot, so spontaneous turnout might be limited. This would put a premium on the organization best poised to get its voters to the polls. Hilliard has not, and (I understand) is not expected to make an endorsement in the runoff. However, the Alabama New South Coalition, which endorsed him in the primary, has endorsed Sewell. The New Jefferson County Citizens' Coalition, which also endorsed Hilliard, has not made any statement in this round, but has a scheduled meeting on July 9, just before the runoff. Smoot has picked up the endorsements, which went to Hilliard in the primary, of two of the most influential black members of Congress, Majority Whip Jim Clyburn of South Carolina, and Homeland Security Committee Chairman Bennie Thompson of Mississippi. Smoot remains endorsed, as she was in the primary, by the ADC.

Smoot's advantage is her base in Jefferson County, where she is known from years of television news reporting, and from service on the County Commission since 2002. She split that base with Hilliard in the primary; their districts overlap. With Hilliard out, she should have a clear field to the "Friends and Neighbors" vote in Jefferson County. Sewell's lead in the primary was largely a creature of her 66.9% share of the large turnout in Dallas County, combined with a close second to Smoot in Jefferson with 34.0% there to Smoot's 36.0%. Hilliard ran ahead of his district average in most of the more rural counties in the district, including showings of 41.1% in Wilcox and 37.7% in Choctaw. The key to the runoff may well be which candidate does best in these more rural parts of the district.

Despite being the officeholder remaining in this race, Smoot has struggled, as did Hilliard, to match the money dump wrought by Sewell, which brought her from a struggling third (in some polls I saw) to the lead. Through the May 12 F.E.C. reports, Sewell outraised Smoot, $783,333.00 to $99,723.00. (Though Smoot does have a history of amending statements to adjust upward. One of her reports indicated that the employment of her own campaign treasurer, who has to sign the report, was "unknown.") Of Sewell's total, $295,028.00 came from Alabama, and of that, $58,000.00 came from her present law firm, Maynard, Cooper & Gale. $132,352.00 of Sewell's total came from New York, much of that from the law firm of Davis, Polk & Wardwell, where she formerly practiced. Sewell's reports do not reflect the same focused generosity of the Bush-Cheney-aligned AIPAC (America Israel Public Affairs Committee) that the 2002 campaign of Artur Davis received, but rumors persist that AIPAC has looked for ways to help her off the books. These rumors center on "street money," which has a way of being impossible to prove - or disprove. If AIPAC was in the primary, it is unlikely they will invest in the runoff, as they no longer have to worry about Hilliard, Jr., making an Orestean career in Congress. Regardless of the relative finances of the two, Smoot has shown that she can vastly outperform her bank account at the ballot box. One final note in the "horserace" discussion: beware the Anzalone poll that the Sewell campaign is touting, showing her with a comfortable lead. Just a few weeks ago, that shop was predicting a comfortable Artur Davis win in the gubernatorial primary. Nuff said.

The Merits. From my perspective, this is not an ideal runoff. (This is as good a time as any to disclose that I was an unpaid advisor to the Hilliard campaign in the primary.) Hilliard would have provided this district with an able, intelligent, articulate Congressman, without any of the issues provided by the two remaining candidates. Smoot brings with her the baggage of being a member of the Jefferson County Commission, one of the most dysfunctional local governments in America. Even if hers is only guilt by association, being lumped with the indictments, convictions, bond defaults, bankruptcy threats, and litigation beyond measure, would give Mother Teresa an image problem. Smoot has passed on opportunity after opportunity on that Commission to exercise the sort of leadership that would truly make her stand out as a candidate for higher office. It's difficult to be too hard on her, as any systemic reform requires two other votes, but at least some advocacy of tougher measures would have been nice.

And yet. And yet, we come to the compelling life story of Terri Sewell. Raised in Selma, the child of public school teachers. Princeton, Oxford, Harvard Law. So far, the stuff of which movies are made. But at this point, the resume diverges from what one would expect of a woman seeking to represent one of the poorest Congressional districts in the country. After a stopover as law clerk to Judge U.W. Clemon in Birmingham, Sewell took a position with the Wall Street law firm, Davis, Polk & Wardwell. She worked in the firm's securities department, which handles much of the legal work of such firms as Goldman, Sachs and J.P. Morgan Chase. In other words, this firm is one of the handful of Wall Street megafirms which lawyered the maze of derivatives, swaps, securitized debt obligations, mergers, and acquisitions, that allowed Wall Street to spend the 90s and 00s ripping off America, and nearly brought it to its knees in 2008. (And, coincidentally, not unlike the shell game deals that left Jefferson County swimming in red ink.) From Wall Street, Sewell returned to Alabama in 2005 to join the Birmingham firm of Maynard, Cooper & Gale. There, she works in public finance, according to her campaign bio. Politically, Maynard, Cooper is known for being the general counsel of the Business Council of Alabama, the
de facto finance arm of the Alabama Republican Party. (Yes, they do keep Democrats on the firm roster, and I know a few. Still.)

In one regard, I can't fault Sewell for her career choices. If someone is going to be paid $700 an hour to engineer the plutocrats' plunder of the rest of us, I think that the gravy train ought to be open to people of every gender, race, creed and orientation. Even Yankees fans. But then I consider what other Harvard Law grads, with even humbler backgrounds, have done with their degrees. For instance, Hank and Rose Sanders came back to Selma, with no stops in New York, London or Birmingham, to help bring justice to the Black Belt. And of course, Barack Obama took his Harvard sheepskin back to the streets of Chicago as a community organizer. It puts a Wall Street career in a whole new perspective.

Then there is one little issue about Sewell's choice of Wall Street firms. As I noted above, she was a partner in the firm of Davis, Polk & Wardwell. That is,
Davis, Polk & Wardwell. The "Davis" in that firm name is John W. Davis. (1873-1955, pictured on the right.) Davis founded the firm in large part to serve as the general counsel to the J.P. Morgan banking family. To this day, Davis holds the post-Civil War record for the most cases argued before the U.S. Supreme Court on behalf of parties other than the Federal government. What makes Davis's biography relevant to this Congressional race is his participation in his last case before that Court - Brown v. Board of Education, 347 U.S. 483 (1954). This is, of course, the famous case in which school segregation was held to be unconstitutional. In a perfect world, Sewell could tell a stemwinder tale about how Davis's fight for equality led her to join the firm. Except for one problem: Davis was the lead counsel at oral argument for the segregationists! Not only was he on the way-wrong side of history on this case, he handled the case for free as a personal favor for the governor of South Carolina. Nor was this stance unusual for Davis. He had opposed antidiscrimination legislation in New York, opposed Harry Truman's civil rights measures, including an anti-lynching bill, and refused to join other Wall Street legal titans in an amicus brief supporting the Scottsboro Boys. I cannot pretend to be an expert on the history of Sewell's former firm. For all I know, it has given millions of dollars to Tuskegee Institute and the UNCF to make amends for Davis's record. I do not even know if there has been any push among civil rights activists to have the firm name changed, though one comment (10th from the top) that I turned up in a Google search indicated that Davis's role in Brown has been redacted from the firm's promotional brochures. In any case, someone of Sewell's considerable education and intellect cannot have joined the firm without a full knowledge of the history of its namesake.

For all I know, her departure from the firm came as the result of the firm's refusal to change its name. (I would welcome authoritative information to this effect, from Ms. Sewell or anyone authorized to speak on her behalf. Commenting is unmoderated on this blog, as long as it's kept civil and legal. ) And maybe I am the only one who cares, but it strikes me that the Congressional district including Selma should not be represented by an alumna of a law firm with the leading segregationist lawyer of the Twentieth Century on its brass plate. I personally find that name as offensive as I would that of Lester Maddox. And I know the 7th District wouldn't abide Maddox's name on a candidate's resume.

To her credit, Sewell took one look at the glazed eyes of Artur Davis as his severed head rolled to a stop at her feet on June 1, and re-emphasized her earlier support of Obama's health care reform efforts. (I have schadenfreude reading the page. "Now confined to a wheelchair Terri works closely with her family to care for her father. " She is? Or he is? And "Terri is on the Community Advisory Board for UAB’s Minority Health Resource Center that helps to decrease the disparity in health care that exist [
sic] in minority communities. Her work there helps close the health care disperity [sic] gap for rural and underserved communities." Yes, Princeton will tell.☺) But what worries me about Sewell's Wall Street background is the prospect that she will revert to it when the spotlight is not so glaring as it was on health care reform. That landmark bill was not Artur Davis's only Republican-pandering big business vote. Without much notice, he voted for the so-called Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, which substantially hurt sick, disabled and laid-off workers in bankruptcy. In other words, the people in his district. Sewell's website platform pages are ominously silent on her positions on legislation to stop the abuses and corruption of Wall Street, Big Oil, and tax-dodging billionaires. She has made some generic calls for "transparency" in financial services, but that is securities-lawyer-speak for "set up a public derivatives trading exchange, and the all-knowing 'free market' will take care of everything." What is needed is comprehensive reform, including, at a minimum, some reinstatement of Glass-Steagall, and restrictions against deposit institutions holding securitized debt obligations, in which they have no clue about the creditworthiness of their end-use counterparties. I'm glad she was and is for health care reform, but it's done with for a few years. These "Big Mule" issues, as Big Jim Folsom would have called them, are the fights of the next Congress. What will Sewell do? Given that she has made a very lucrative career out of helping engineer Wall Street deals (Sewell was a partner at Davis, Polk & Wardwell. In 2009, per partner profits there were $1,655,000 - in a down market), I find it hard to think she'd endanger a post-Congressional spot on K Street or Wall Street with any real pushback.

If I have missed clear statements by Sewell on these issues, I hope she, her staff, or her supporters will help me out with some links in the comments box. And Lord knows, I wish the average Alabama member of Congress had half of Sewell's academic credentials and intellectual horsepower. But unless I were to see some solid answers to the concerns I have raised, my gut instinct is that Smoot would be a more loyal member of both the Democratic majority, and the Congressional Black Caucus, and would thus serve her constituents better. And she
did graduate from Michigan State, which helped send Nick Saban on his way to Tuscaloosa.

NOTE: I want to make one thing abundantly clear. Although, as I stated above, I served as an advisor to the Hilliard campaign, I speak solely for myself in this post. I did not discuss it with Earl Jr. before writing or posting it. In fact, the only communication I have had with him since the night of the primary has been an exchange of text messages, in which I told him to enjoy his vacation in the Smokies. And that I hope to see him in public office again someday.

The Landslide that Fell Uphill: The Decline and Fall of Artur Davis

Everyone's had time to hit the beach, or the lake, or the saloon, since the Democratic primary on June 1. The attention of the chattering classes at the Newhouse Division of the Republican Party has been preoccupied with the James-Bentley struggle for a runoff spot. I suppose that "breaking news" sells more newspapers than thoughtful contemplation, even if not as many as the most recent rumor concerning the college preference of a cornerback at Coffeeville High (for the unlearned, with an average daily attendance of 50, the smallest high school in Alabama that plays football). That gives us the opportunity to look at the landslide that fell uphill - the Artur Davis landslide win that turned into the Ron Sparks landslide win.

So, what do we make of the real story of Primary Day? That story, of course, is the wholesale repudiation of the most serious black gubernatorial candidate in Alabama history, Artur Davis, by a substantial portion, if not a majority, of the black vote. The answers to all the questions that issue raises will tell us a lot about how the black vote will act in future Democratic primaries, and may give us some lines of inquiry into how, someday, this state might actually have a black governor. A lot of factors come into play in this analysis, including Davis's own strategy, the role of historical black political organizations - mainly the ADC, New South Coalition, and the ("New") JCCC, and the selection of basic metrics. There weren't any significant exit polls on the ground on Primary Day - at least not that have surfaced - so we will have to look largely at the available returns.

But before prescription, comes diagnosis. Before diagnosis, come the symptoms. In that regard, first, let's look at the gubernatorial results in the seven counties with the largest percentage of black population:


County
DavisSparksSparks%Black%
Macon2,0282,31153.3%83.9%
Greene1,1962,55668.1%79.0%
Sumter2,4242,28248.5%72.9%
Wilcox1,1323,48975.5%72.5%
Bullock1,4642,15959.6%70.5%
Lowndes1,3732,51064.6%70.2%
Perry8552,20272.0%68.5%


Those figures create a strong anecdotal suspicion that Davis badly lost the black vote. There is simply no way for Sparks to get 68% in Greene County without a majority of the black vote. On a somewhat more abstract level, consider the correlation of the black percentage of population, with the percentage of the vote received by Sparks, in all 67 counties, which would include the larger urban areas not in the above table:



This chart tells us a few things, mathematically. First, the overall correlation between black percentage of population, and the percentage of the overall vote Sparks got, shows a negative correlation, confirming anecdotal belief that Davis did better among black than white voters. The correlation, however, is somewhat weak; confirming that Sparks made significant inroads into the black vote, as exemplified in the counties in the table above. The strongest actual correlation is shown in the upper left corner, but that represents the whitest counties. No news there; Davis's white vote was negligible, even among a moderate Democratic primary electorate. (Imagine, if you dare, how bad it would have been among the much less enlightened general election cohort.) This trend toward randomness increases as you move rightward on the chart; that is, as the electorate represented by each data point becomes more black. This is consistent with the known data that Davis carried Mobile and Montgomery Counties, where the Democratic primary electorate is overwhelmingly black, and came closer to Sparks in Jefferson County.

Any number of explanations can be put forward for these numbers, but the one that best satisfies Occam's Razor is that since the variations can be seen so readily at the county level, local variables are significant in the determination of the result. Or, as Tip O'Neill would have said, "All politics is local."

But that observation still doesn't tell us what the local variations were, or what
caused them. A defensible conclusion awaits more research, but I will give it a stab anyhow. The two least-depressing spots on what was a dismal night for Davis, were easily Montgomery and Mobile Counties. Both counties have factors that likely accounted for Davis's stronger showings there. In Montgomery, Davis is a native son, and his wife and mother are also locals. This means there are going to be people who grew up with them, went through school with them, and are related to them. Even beyond that circle, he would be known as "local." While these factors aren't going to be enough alone to carry an urban county like Montgomery, they will make a difference in a tight race, and Davis only carried Montgomery by 50.5%-49.5%.

In Mobile County, Davis was the beneficiary of a pre-implosion endorsement by popular - and black - Mayor Sam Jones. Jones never recanted the endorsement, and word on the street is, he considered himself obligated to follow through on his pledge of support. Whatever happened in Mobile County, it was Sparks's weakest county in the state; he only took 39.9% of the vote there. Since Mobile County is only 35.7% black, other factors may have been at play. Dauphin Island is as far as you can get from Sparks's home in Fort Payne and still be in Alabama, and Mobilians have an instinctive dislike for anyone from places in North Alabama, like Evergreen and Wetumpka. (In a semi-related aside, after this display of political muscle, is Mayor Jones now the de facto leading spokesman among black elected officials in Alabama, as former Birmingham Mayor Richard Arrington once claimed to be?)

As much as Jones might like to take credit for "delivering" Mobile County to Davis, and as much more as the leaders of the traditional black groups want to take credit for delivering, well, everyplace else to Sparks, the reality is probably a bit more complex. Davis's position until the night of the Primary was that leaders such as Dr. Joe Reed and Senator Hank Sanders couldn't "deliver" the black vote anymore. There may have been a kernel of truth to that, but it's equally likely their support of Sparks was
indirectly necessary to his win. For that, I am going to humbly offer a working hypothesis for what happened with the black vote in this contest.

Any black voter in Alabama was looking at several competing claims on his or her vote in this election. Certainly, there was a "pull" by virtue of Davis's race. Davis seems to have presumed this pull would overwhelm all other factors. Related to this would have been the Obama-esque prospect of creating a "first." However, if Obama the concept was Davis's friend, Obama the actuality was his undoing. Specifically, Obama's act of tying himself to the mast of health care reform, and Davis's willingness to pander to the Business Council and Tea Party crowds to the point of twice voting against it, played an immeasurable part in Davis's undoing. (To be sure, Davis cast other votes in an effort to pander to the center-right: against the GM/Chrysler rescue, for Patriot Act renewal - but none of these were as visible as the health care vote. Sparks showed his sharp political instincts by taking full advantage of the mistake.)

Did the health care votes irretrievably doom Davis? Not necessarily. It is important to remember that voting behavior is influenced by a multitude of factors, in ways that are far from totally understood. Certainly, candidates' stands on high-visibility issues play a well-established role in predicting voter behavior. But issues can easily be trumped. Obama ran, even in the 2008 primaries, as something of a moderate among Democrats. (Remember those warm, fuzzy Obama statements about Ronald Reagan?) Other candidates, including, arguably, Hillary Clinton, were probably much closer to the ideological preferences of black voters than Obama. The South Carolina primary showed how overwhelmingly racial identification, and the "first" impulse, overwhelmed those concerns among black voters.

So what was different in Alabama on June 1? First, probably, Davis's ideological break to the right was more marked than Obama's, and as it could be encapsulated in the health care reform votes, more visible. Davis didn't help himself by beginning his fall campaign early, and highlighting his "moderate" positions. Perhaps that is explanation enough, but it seems more had to happen than that. And that is where the historical black organizations came in. Their full-throated condemnation of Davis's votes, and support of Sparks, gave a black voter internal intellectual cover for voting against a prospective historic "first." If you like, they told him or her "it's OK to vote against Artur, you won't be the only one on your block." The buzz they provided along those lines in churches, barbershops, and elsewhere in the black community, allowed black voters to express their issue-based anger with Davis without feeling a sense of group betrayal. This model comports with the empirical data of the returns. Where this "buzz" was not present, or attenuated, - as in Mobile - Davis did well. Where it was present, Sparks handily won the black vote. In this vein, Davis didn't help himself with his very public snub of these organizations' screening processes. Even black voters who don't take their cue from these organizations are still mindful of their pioneering roles in securing basic civil rights and political influence in Alabama. In sum, these organizations - while their street operations do still deliver some votes, if at considerable cost to the candidate - probably could not have provided Sparks with a majority of the black vote against John Lewis. But while Congressman Lewis could, and did, endorse Davis, he couldn't save Davis from himself.

In addition to the historical black political organizations, one factor in Davis's loss of black support bears mention. I am referring to the numerous black members of the Legislature who supported Sparks. Some did so visibly, like Sen. Bobby Singleton of Greensboro, and, notably, Sen. Hank Sanders of Selma, whose open letter to Artur Davis telegraphed his eventual support for Sparks. Other black legislators gave their support quietly, either by off-the-record conversations with community leaders, or by putting the word out to their substantial personal GOTV personnel on the day of the election. This support was understandable, and predictable, on a purely pragmatic basis. As these seasoned politicians understood, a Davis nomination would have likely resulted in
significant losses for Democrats in downballot races throughout the predominantly white areas of the state. This could easily have left the Legislature in Republican hands, and left for naught the decades of struggle to put legislative power in the hands of black leaders such as House Finance & Taxation Chairman John Knight, House Speaker Pro Tem Demetrius Newton, Senate Finance & Taxation Chairman Hank Sanders, and Senate President Pro Tem Rodger Smitherman. (For clarity's sake, I am not implying that any of these leaders supported Sparks, beyond their own public statements; I merely note their leadership posts would likely have vanished after a Davis nomination.) While this phenomenon was foreseeable months ago, and became more evident as the primary approached, it was almost totally unreported in the media, especially in the Newhouse outlets. Of course, in their case, it would not have fit their "inevitable Artur nomination" story line.

It was the prospect of this position by numerous black legislators that led me to predict, some time ago, that the black vote for Davis would not be monolithic. That it broke as heavily as it did for Sparks, I admit, caught even me by surprise (and perhaps Sparks, though I know better than to ask). I was figuring Sparks would win, but I had it figured at about 52-48. 55-45 if every single variable broke his way. I never bought the media-poll line that Davis was getting 40% of the white vote, and a near-unanimous black vote. Of course, I never had their Davis-nomination agenda, either. Sometimes, it's fun to be wrong.

Sunday, June 20, 2010

Black Robes, White Faces - Alabama's All-White Appellate Courts

Judicial elections in Alabama provide material for a bookshelf full of doctoral dissertations. They are notorious for their expense, their hyperpartisan contentiousness, and, since Karl Rove was brought into Alabama by the Business Council to steal Supreme Court elections, as producing a court system where out-of-state Fortune 500 companies and Republican officials never lose their cases. (Chief Justice Sue Bell Cobb is the sole Democrat among the 19 current appellate judges on the three appellate courts.) These problems have attracted the attention of well-meaning reformers in both parties. Efforts to reduce the temperature of judicial elections have been made by the Alabama State Bar, the Judicial Inquiry Commission, and even by the Supreme Court itself, in the form of campaign regulation. However, most of these efforts have run afoul of claims, most notably by Business Council Pod, former Justice Harold See, that such regulations abridge First Amendment free speech rights. (Oddly, the Republicans, professed champions of the Tenth Amendment and state sovereignty, invariably bring these actions in Federal courts.) Various legislative proposals for changing the selection process have floated around the Legislature, including nonpartisan elections, Missouri-style retention systems, and appointment systems. In a predictable turn of events, Democrats, who opposed selection reform when we dominated elections, became the proponents of change. The Republicans, in turn, have become newfound supporters of a popularly elected judiciary.

Whatever the relative merits of these reform proposals - and they are beyond the scope of this post - it wouldn't be Alabama if one certain issue wasn't hiding behind the curtain, not getting its due attention, and begging to be addressed. That omnipresent issue is race. Because while there is a lone Democrat among those 19 appellate judges, there is not a single, solitary, black person - or any other person of color - among them. None. Zero. Zip. In a state, the population of which is 27% black.

Let me explore the ramifications of this with an example. A black defendant, charged with capital murder, who was tried and sentenced to death, and executed, in the urban centers of Mobile, Anniston, Gadsden, Huntsville, Decatur, Florence-Muscle Shoals, Dothan, or Auburn-Opelika, and appealed, would have been executed without appearing in front of a single judge of his own race until he appealed to the United States Supreme Court. Where his fellow black would be Clarence Thomas; not exactly a great comfort. (The lone exception would be in Huntsville, where the relatively unimportant preliminary hearing
could have been - no guarantee - in front of District Judge Lynn Sherrod, who is black.) The same all-white judiciary would obtain in the suburban counties of Shelby and Baldwin, which have a combined population of over 361,000. There are no black circuit judges (who try murder cases) in any of the above cities and counties, and none on the Court of Criminal Appeals or the Alabama Supreme Court.

Now, many of these cities and counties are overwhelmingly white, and it's a little easier to see how a black judge could have trouble getting elected locally. I still have a problem with that, but that is one of the factors courts look at in determining whether elections are racially biased. But at the state level, there is no such excuse with a 27% black population.

A small history lesson is on order at this point. The situation was not always thus. Once upon a time, there was a black justice appointed to the Alabama Supreme Court, Oscar W. Adams, Jr. He was appointed in 1980 by - hold on to your chair -
Governor Fob James. Adams, a Democrat, was elected to full terms in 1982 and 1988. When he retired during his second full term, then-Gov. Jim Folsom, Jr. appointed Justice Ralph Cook, who is also black, to the vacancy. Justice Cook was elected to a full term in 1994, but lost his seat to a Republican in 2000. Also losing his seat in the 2000 general election was black Justice John England, who had been appointed to a vacancy by Gov. Don Siegelman. (Siegelman later appointed England, the father of State Rep. Chris England, to his former position of circuit judge in Tuscaloosa, where the voters have wisely kept him.) Justice Adams's 1982 white primary opponent disgraced himself by blanketing predominantly white counties with a flyer containing photos of both himself and Justice Adams, with the legend, "COMPARE." (Supposedly, their qualifications. Yeah, right.) There has yet to be a black judge to assume a seat on an Alabama appellate court directly by election, without first being appointed, and enjoying the political and financial advantages of incumbency.

How does our track record compare with other Southern states? Not well at all. First, let's take a look at the most recent group photo of the Mississippi Supreme Court. And this is in a state whose Democratic Party is supposedly in even greater disarray than that of Alabama. Mississippi, which is 37% black, does elect its Supreme Court Justices by district, and the Court's lone black, Justice James E. Graves, Jr., is from the district with the largest black population percentage.

Looking in the other direction, we see the Georgia Supreme Court. (Chief Justice Leah Ward Sears, the black woman in the center of the Georgia photo, has retired since that photo was taken, and her replacement, appointed by GOP Governor Sonny Perdue, is white.) Georgia's population is 30% black. It elects its judges in nonpartisan elections, but the current black justices were all originally appointed by Democratic governors. Whether the Georgia court will follow in the footsteps of the Georgia Legislature in slowly being overrun by white Republicans remains to be seen, but Chief Justice Sears was able to retain her seat in her final election, in 2004, in which election the Georgia GOP retained legislative control.

OK, so the situation is horrible. What is to be done about it? If the Georgia precedent tells us anything, it seems that nonpartisan elections, while possibly commendable on other grounds, may not serve the long-term goal of racial equity. If Alabama's bleaching of its Supreme Court is simply a second-level consequence of its Republicanization, nonpartisan elections might work. However, racial polarization in the 2008 presidential race indicates that an identified black candidate still faces substantial hurdles to statewide electoral viability. It should probably be presumed that the Business Council and other conservative interests would make sure a black candidate, who was not a local version of Clarence Thomas, would be so identified.

The Mississippi example, using geographical districts, seems to be more promising, though the Alabama Supreme Court's current selection reform champion, Republican Justice Champ Lyons, is opposed to the idea. (Wonder why?) Neither proposal would require a constitutional amendment, as the Constitution of 1901 gives the Legislature broad authority to determine the number and qualifications of appellate judges. (Changing to an appointment or Missouri-plan system would require a constitutional amendment.) As a practical matter, the Court of Criminal Appeals and Court of Civil Appeals would have to be expanded from their current size of five judges each (the Supreme Court has nine) to assure racial diversity in elections by district. We have modest racial diversity in the Congressional delegation with seven districts (1/7). The State Board of Education has two blacks among its eight members elected by districts
. (The Governor is an ex officio member.) Thus, expansion to nine judges would seem to be necessary to cause election by district to foster racial diversity. (Designers of appellate courts don't like even numbers, as tie votes make for legally awkward tie decisions.)

The only option other than electoral reform seems to be litigation under the Federal Voting Rights Act of 1965. Which has, in fact, been done. In the case of
White v. Alabama, 74 F.3d 1058, 34 Fed.R.Serv.3d 281 (11th Cir. 1996), the plaintiffs had obtained a preliminary ruling that Alabama's appellate judicial selection was racially discriminatory, and the state had conditionally agreed to a settlement in which judicial vacancies would have to be filled by blacks by appointment, unless and until the electoral process produced racially diverse outcomes. For arcane legal and political reasons, including overconfidence engendered by Justice Cook's 1994 re-election, the plaintiffs dropped their claims in 1998. Which, for my money, teaches that when you have the serpent's head between your boot heel and the rock, you crush it. The trial judge in White was Myron Thompson, probably the most sympathetic Federal judge in Alabama to such a claim; future litigation could be problematic. However, it, along with litigation to secure racial diversity in the trial courts of many of our state's racially diverse urban centers, may be our only choice.

Wednesday, June 16, 2010

Counting Heads (and Tails) in Legislative Races

Ever since Guy Hunt moved from Holly Pond to the Governor's Mansion in 1987 and found his sillier ideas hamstrung by a Democratic Legislature, the Business Council of Alabama, ministres plénipotentiaires on Earth of Satan himself, have alternately dreamt of and predicted a Republican takeover of that body. Never, however, as intensely as they have in the runup to the 2010 election cycle. Republican Chairman, and Speaker Wannabe, Mike Hubbard launched his "Campaign 2010," with a stated goal in the millions of dollars, and every special election and Democratic retirement has been touted as the keystone that will harken the Republican takeover of one or both houses.


Reality, however, has its own way of intruding on the most certain plans and prognostications. Multiple factors have arisen to make that takeover look less likely than it has in the last two years. As of this posting, Danny at Doc's Political Parlor has apparently taken down his Line for post-primary revision of the odds, but before doing so, he had both houses of the Legislature remaining Democratic. Let's look at some of the statewide trends at play, and a few particular examples of where they might play out.

Statewide. That giant whooshing sound you heard on the night of June 1 was the sigh of relief breathed by the collective Democratic Legislative leadership when AP called the gubernatorial primary for Ron Sparks. With that victory, the centerpiece of the GOP legislative campaign in 2010 snapped. For four years, Republican leaders had been as confident as Artur Davis that the latter would head the Democratic ticket. For the same four years, Democratic leaders had feared that same possibility as much as their Republican counterparts had hoped for it. After Barack Obama got an embarrassing 10% of the white vote in Alabama in the 2008 general election, that fear was seen to be well-founded. Davis seemed to have listened to his own rhetoric about a post-racial Alabama so long that he believed it himself. Almost everyone else knew he would have lost the general election in a grand and spectacular fashion with a fifth or less of the white vote, and probably taken a raft of Democratic legislators down with him. Compounding the racial issue was Davis's support of charter schools - anathema to AEA. Had Davis been the nominee, and anyone but Byrne the Republican nominee, Democratic candidates downballot would have had the dismal prospect of AEA throwing much of its support to the GOP.

As it is, the Democrats have, in Ron Sparks, as good a candidate as they could have hoped for at the top of the ticket. Besides not polarizing the electorate along racial lines, he is from North Alabama, from which the majority of white Democratic legislators now hail. To the extent that Sparks draws the "friends and neighbors" vote about which I wrote earlier, those upstate legislators will benefit. Other intangibles, too involved for anything other than cursory listing, have also improved the Democratic prospect. Health care reform, while not yet popular, is not the white-hot issue it was before the Congressional votes. If jobs aren't being created rapidly, neither are they disappearing as they were a year ago. And while Republican planners drool at the prospect of complaining about Obama's handling of the Gulf oil disaster, they would do well to consider which party is most easily painted as a tool of Big Oil.

All politics is local. And so are all legislative districts. With that in mind, let's look at a few sudden bright spots on the Democratic horizon.

Senate District 7. In the 2009 special election to fill Parker Griffith's seat, the GOP gave itself all kinds of credit for the election of mediocre barbecue purveyor Paul Sanford. Really? As solid a legislator as Representative Laura Hall is, and as better as she would have been than Sanford, this white-majority district was not going to send an African-American up to the Seventh Floor. Now, former Senator Jeff Enfinger is tanned, rested, and ready to reclaim his old chair in the Senate. While he can't fully self-finance, he can make substantial self-contributions, and reconnect to all the economic conservative/social moderate types that constitute a force in hi-tech Huntsville. Race aside, Representative Hall is solidly progressive, and known to be so. Despite her race, and known progressive credentials, Hall only lost to Sanford by 57-43%. While this district probably has the highest black percentage of any Senate district north of Birmingham, it is still heavily white, so these numbers were an impressive showing by Hall. Further, this was a special election with limited turnout. While high for a special, turnout was only 57.9% of that for the same district in the 2006 general. While black turnout was high for a special election, which helped Hall, turnout was even higher for a special in many white precincts, suggesting a white racial reaction, the net benefit going to Sanford. In terms of the political positions of the two candidates, this year's contest looks more like a replay of the 2006 general election, which the Democrats won, 65.5%-35.5%. The latter numbers are also more consistent with the district's aggregate Democratic voting history. Although House districts are no longer perfectly nested (three House districts completely inside one Senate district), the 7th is near-nested, and two of the three House districts are longtime Democratic seats. Enfinger will not have the "visibly progressive" handicaps Hall suffered, and will be the beneficiary of a north-Alabama-oriented Democratic state ticket. This looks to be a takeback for Democrats, despite media chatter to the contrary.

Senate District 9. For a couple of decades now, Republicans have awaited the death or retirement of Hinton Mitchem of Albertville, and expected this district to fall like an overripe apple into their hands. As Marshall County, the district's heart, trended Republican, the Tim Mitchellsalivation got unseemly. Then, in an inspired bit of recruitment by State Chair Joe Turnham after Mitchem's eleventh-hour retirement announcement, the Democrats found their own spare 800-pound gorilla. 22-year Probate Judge Tim Mitchell is the D nominee. Any student of Alabama politics knows you don't mess with a probate judge, and Mitchell didn't hold the job that long by being a political maladroit. While Mitchell coasted against token primary opposition, the Republicans drained themselves in a four-man primary, and continue to exsanguinate in a runoff. Finally, Mitchell should benefit from the "friends and neighbors" wake of DeKalb neighbor Sparks. Against all early expectations, this should be a Democratic hold.

Senate District 29. On paper, this is one of the most Republican Senate districts in Alabama. (Thus fulfilling the title's promise to count tails.) But in 2010, all bets are off, as the state GOP lashed out at Senator Harri Anne Smith for her support of Bobby Bright in the 2008 Congressional general election, and barred her from their primary ballot. She is running as an independent, and who knows how that will work out? (There is a Democratic nominee, Houston County Democratic Chair Jennifer Adams. And a Republican, George Flowers.) The Republican prospect in this race calls to mind what the late Ohio State Coach Woody Hayes (sorry, Doug Dermody) said about the forward pass: there are only three ways it can turn out, and two of them are bad. If Smith is elected - as is possible - she may have enough residual spite to caucus with the Democrats to organize the Legislature. Stranger things have happened in Montgomery. Add to all this, the adverse employment impact of Bob Riley's Wonderful Bingo War on this Wiregrass district. Republicans will have to divert substantial resources to this base district, and may lose it even then.

House District 24. High in the mountains of Northeast Alabama lives a rare political creature: a Republican legislator who has been a regular supporter of AEA, Representative Todd Greeson. And AEA has reciprocated that support, financially and politically, making a Democratic challenge difficult in this swing district. But now, Dr. Hubbert is looking at a difficult calculus, and old friends like Greeson are no longer affordable if the Democrats are to retain control of the Legislature, and Democratic friends of education are to remain in committee chairmanships. Enter into this picture, former Rainsville mayor Nathaniel Ledbetter, the energetic Democratic nominee. Add to this that Rainsville, where Ledbetter is still popular, is the Republican population base for the district, making Greeson's climb even more uphill. Greeson took this seat in 1998 by campaigning, vocally, against the community college job of the Democratic then-incumbent. Since joining the Legislature, Greeson has taken a job with - Northeast Alabama Community College. Oh yes, did I mention that this is Ron Sparks's home House district? I think we can count on an energized Democratic base and splitting of traditionally straight GOP tickets. Call this one a likely Democratic takeaway. And except for the fact that Sparks is only a next-door neighbor, you can say "all of the above" (including the AEA about-face) about House District 30, where Republican incumbent - and Gadsden State employee - Blaine Galliher faces well-liked Southside Mayor Wally Burns. In what Democrats can only think sweet irony, if Byrne is the GOP nominee, both Greeson and Galliher will have to stand stoically silent while they are hit by shrapnel from all of Byrne's "double-dipping community college legislator" bombs.

House District 63. This is the Tuscaloosa district being vacated by gubernatorial hopeful Robert Bentley. Bentley has been one of those laid-back, AEA-friendly Republicans in the House, too. This has largely suited the voters in his upscale district, whose conservative tendencies are leavened by the presence of a substantial number of University of Alabama faculty. One of whom, law professor Susan Pace Hamill, is the Democratic nominee against Republican attorney Bill Poole. Hamill, who holds a divinity degree she earned while still teaching law, has tapped deeply into the University's College Democratic scene to provide manpower for her campaign. What should be a base Republican district has emerged as a battleground, into which Gruppenf√ľhrer Mike will have to send valuable Republican dollars to hold it - if hold it he can.

House District 73. In this Montgomery district, which includes much of the Cloverdale neighborhood, Democrat Joe Hubbard promises to add to Montgomery's existing Hubbert-Hubbard confusion. He also promises to add to the woes of incumbent David Grimes. Hubbard is a young, articulate attorney who is the great-grandson of Senator Lister Hill. He looks and sounds like the Episcopal vestryman that he is. In other words, he looks like a Republican. (We won't hold that against him.) In any other district, that might not matter, but in this upscale territory, it immunizes him from easy portrayal as a wild-eyed liberal (the one note Mike Hubbard's trumpet plays). If you drive through this district, though yard signs don't vote, Hubbard signs are everywhere. Hubbard at least has some organized, enthusiastic followers, if he knows how to use them. Is Grimes worried? There's reason to think so. Not only did Grimes take the unusual step of joining Hubbard in a State House press conference to mutually pledge clean campaigns (a tactical error for a Republican, since they rely on the lie), he wound up heaping praise on Hubbard, as seen in this video clip.





The clip also betrays anxiety to the extent that you don't pick your nose on camera unless you're nervous about something. The geography of this district makes it a fight for any Democrat. But suddenly, for the reasons mentioned above, Mike Hubbard is going to have to divert precious dollars to this base district from some takeaway opportunity.

Will all of these Democrats win? Of course not; one or two may well lose. My point is that, as recently as two months ago, most of these now-favored Democrats would have been considered underdogs. While the pendulum could swing back toward the GOP, it's just as likely that its Democratic momentum will put even more GOP seats in play, or make battleground seats safely Democratic. An acrimonious Republican runoff for governor, maybe? More revelations about Riley's links to Mississippi Choctaw casinos? Stay tuned, folks. And will someone get Mike Hubbard a Rolaids? The boy don't look like he's feeling well at all.