“The law of small numbers.”

May 5, 2022

[Audio version here]

          Trump’s endorsement of J.D. Vance in the Ohio Republican primary may have moved the needle enough to allow Vance to win in a five-person race. Some in the mainstream media reported this development as “stunning,” “seismic,” and a “confirmation of Trump’s domination of the GOP.” See, e.g., Newsweek, Donald Trump’s Stunning Ohio Victories Show’ Era Has Ended’ for Republicans. Without disputing Trump’s probable influence on the outcome, we should maintain perspective about what happened—and what did not happen—in the Ohio Republican primary. Before looking at the numbers, let’s skip to the end: Democrats can win in Ohio, notwithstanding J.D. Vance’s victory. Don’t let anyone tell you otherwise!

          The starting point is to recognize that turnout in the Ohio primary was pathetic, as is true in almost all primaries. But turnout was abysmal in Ohio on Tuesday, which saw the third lowest primary voter turnout in Ohio since 1986. Only 20% of registered voters could rouse themselves to vote in a year of great challenge to our nation.

In the Republican primary for U.S. Senate, Vance won with 31% of the vote (218,053 votes)—which, by definition, means that 69% of the Republicans who bothered to show up did not vote for the Trump-endorsed candidate (or 478,333 votes that did not go to Vance). And note that the anti-Trump candidate garnered 22% of the vote (152,198 votes). That’s not nothing!

          In a state with 8.1 million registered voters, we should be mindful of the “law of small numbers” in interpreting Vance’s win with 218,053 votes. (The law of small numbers is a cognitive bias that refers to the tendency to draw broad conclusions based on a small dataset.) It would be easy to over-interpret Vance’s win by “scaling-up” his winning margin in the primary to project his performance in the 2022 statewide election for U.S. Senator. That intuitive approach is wrong, at least in Ohio.

          It might surprise you to learn that the largest group of registered voters in Ohio is neither Republican nor Democratic. It is “Unaffiliated”— 4.5 million out of 8.1 million voters. The 56% of the Ohio electorate that is “unaffiliated” did not vote in the GOP primary won by Vance. Will Vance appeal to those unaffiliated voters in the general election? That is the relevant question—not whether Trump could tip a five-person race by shifting a few thousand votes.

         Other contests in the Ohio primary on Tuesday give insight into that question, albeit limited. In the GOP primary for Ohio governor, incumbent Mike DeWine won handily. But DeWine is on Trump’s “naughty list” for not pushing the Big Lie. (Trump endorsed DeWine in 2018, but not in 2022.) Although DeWine’s opponent was a full-throated Big Lie promoter, DeWine won decisively.

We shouldn’t over-interpret the victory of an incumbent. Still, we should recognize that DeWine’s victory runs counter to the narrative that Trump controls the fate of GOP primary elections (or general elections). He does not.

          J.D. Vance moved into the “conspiracy wing” of the GOP in order to gain Trump’s support. If we want insight into how a Trump-radicalized candidate will perform in 2022, it would be helpful to compare a contest between a Democratic candidate and a Trump-endorsed conspiracy promoter. It just so happens that such a race took place in a special election in Michigan on Tuesday. The legislative seat in question had been a “safe” Republican district for years. The Trump-endorsed candidate called for “decertifying” the 2020 election and said the war in Ukraine was a “fake war just like the fake pandemic.” The Democratic challenger, Carol Glanville, won by 11 points in a district her Republican predecessor won by 26 points only two years earlier. That is an enormous swing and stunning victory for a Democratic candidate in a heavily Republican district.

          As I noted earlier in the week, “data is not the plural of anecdote,” and we must be careful about telling ourselves “just-so stories” to avoid confronting reality. But we must also not panic before we understand the facts. J.D. Vance won a GOP primary with votes representing only 3.7% of registered voters in Ohio. Was that a “stunning” or “seismic” victory? Hardly.

          Whatever else Vance’s victory means it does not mean that he will inevitably represent Ohio in the U.S. Senate. That question is still very much open to the will of 8.1 million Ohio voters—4.5 million of whom are neither Republicans nor Democrats. It is our job to persuade those unaffiliated voters that Democrats are the only party trying to preserve democracy and maintain the rule of law. J.D. Vance’s unhinged public statements should help us make that case to the public. So, don’t panic; stay focused on our game plan and ignore the hyperventilation in the press.

Was Justice Alito “egregiously wrong” when he testified in his confirmation hearing?

          Justice Alito’s draft opinion says that “Roe was egregiously wrong from the start.” But when Alito was questioned about his views on Roe during his confirmation hearing, he failed to disclose that view to the Judiciary Committee. Instead, he bobbed and weaved, saying,

          [Roe] is a precedent that has now been on the books for several decades. It has been challenged. It has been reaffirmed. . . . It would be wrong for me to say to anybody who might be bringing any case before my Court, ‘If you bring your case before my Court, I’m not even going to listen to you. I’ve made up my mind on this issue.’

          Saying that “Roe has been egregiously wrong from the start” certainly sounds like Alito had “made up his mind on the issue” long ago—but failed to advise the Judiciary Committee of that fact. Add Alito to the ignominious list of sitting Supreme Court justices who dissembled their way onto the Court. The Supreme Court’s legitimacy crisis worsens by the day, and the justices have no one to blame but themselves.

Will overruling Roe and Casey spur voter turnout?

Based on comments and emails from readers, it appears that the impending overruling of Roe and Casey will spur Democrats to work harder than ever to expand majorities in the House and Senate. That response makes intuitive sense to me, but some political commentators have predicted that ending constitutional protection for abortion will not make a significant difference in turnout in 2022 and 2024. I strongly disagree with that analysis, but believe it is helpful to understand why some commentators believe so.

If you have recovered from the shock of Alito’s draft opinion and have the fortitude to read an article with unwelcome predictions, I recommend Sarah Isgur’s article in Politico, Abortion Might Not Be the Wedge Issue It Used to Be. I note that Isgur served as a Trump spokesperson, so she may bring a Republican view to this question.

Isgur’s claim that “abortion” is no longer a “wedge issue” rests on two theses. First, she claims that people who vote based on abortion have already “sorted” themselves into their respective parties (Democrats and Republicans). Second, she claims that turnout reached its maximum level in 2020 and has little room for growth. She points to the loss of pro-choice Terry McAuliffe in Virginia’s 2021 governor’s race to support her argument.

Here are my thoughts about why Isgur is wrong: First, the “abortion issue” has suddenly transformed in two significant ways. It is no longer a question of whether Republicans will succeed in overruling Roe; it is how far they will go in criminalizing abortion after having stripped an existing constitutional right from women. Moreover, the rationale for overruling Roe implicates several other significant rights based on the same privacy rights that underlie Roe—contraception, same-sex marriage, same-sex adoption, “inter-racial” marriage, and sexual relations between unmarried people.

Second, Isgur is wrong that people have “sorted” themselves into their respective parties. Like Ohio, the largest bloc of voters in the U.S. are “independents” who are registered with neither major party. If Isgur believes that those independents will not care about criminalizing abortion, she is wrong. At least, I hope she is. Or, to put it differently, the key to undoing the damage of the reactionary majority lies in convincing persuadable independents that the government has no business regulating the private decisions of Americans about reproduction, marriage, adoption, and sex.

Finally, Isgur is wrong about turnout. In 2020, the election was decided by the largest group of eligible voters in America—the “did not vote” contingent. Biden received 81.2 million votes; Trump received 74.2 million votes; and 84 million eligible voters did not vote in 2020. So, while it is true that 2020 was a record turnout, there is enormous room for growth.

What do I take away from Isgur’s article?

1. We must communicate to voters that the “abortion issue” has changed from a hypothetical legal issue to a real-life criminalization of abortion and government control over women’s bodies;

2. we must communicate to voters that other significant rights are in immediate danger;

3. we must convince persuadable independents that whatever else they believe, they do not want to put the government in charge of our private lives; and,

4. we must bring new voters into the political process. That is our task—and it is achievable through hard work and discipline!

Concluding thoughts.

          Alito’s opinion is so egregious that it will be changed substantially before the final version is published. Alito’s draft opinion is contemptuous, insensitive, unnecessarily sweeping, and “Exhibit A” in the impeachment proceedings of several justices for lying to the Judiciary Committee. For example, Alito will surely delete the statement that Roe was “egregiously wrong from the start” to avoid making a liar of himself during his confirmation hearings.

          The Court would be foolish to forgo the opportunity to make itself look less foolish, less partisan, less hypocritical, and less heartless as it revokes a constitutional right for the first time in the Court’s history. When the final opinion is released, the instinct of pundits will be to fly-speck the opinion for differences in language between the draft opinion and the published version. Those differences in language will be a sideshow. Do not be distracted! The question that matters is whether the Court preserves or revokes the constitutional right of women to control their destinies and reproductive choices.

          In the coming months, we must act with urgency. The mid-terms are upon us, and we cannot delay as we wait for an opinion designed to camouflage the duplicity of the reactionary majority. We know the intended result—that is enough for us to go on the offensive. Action plans are being made as I write. I will discuss opportunities for engagement this week. If you are involved in such an effort, let me know, and I will try to promote it (space permitting). Before the week is out, each of us must have an action plan for our personal contribution to the struggle to prevent further backsliding and to regain what will be lost when the Dobbs opinion is published.

          Stay strong! Talk to you tomorrow!