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September 14, 2016 2:54 pm

Dershowitz: The Only Thing Predictable About This Election Is Its Unpredictability

avatar by Alan Dershowitz

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Donald Trump and Hillary Clinton. Photo: Wikimedia Commons.

Donald Trump and Hillary Clinton. Photo: Wikimedia Commons.

This is the strangest presidential election in my memory. Despite the polls, the outcome is utterly unpredictable. This was true even before Hillary Clinton’s recent health issue.

Just consider this — it was only a month ago that the The Washington Post declared a landslide victory for Hillary Clinton:

[A] dispassionate examination of the data, combined with a coldblooded look at the candidates, the campaigns and presidential elections, produces only one possible conclusion: Hillary Clinton will defeat Donald Trump in November… Three months from now, with the 2016 presidential election in the rearview mirror, we will look back and agree that the presidential election was over on August 9th.

On August 24, Slate – a liberal online magazine owned by The Washington Post — similarly declared, “There is no horse race: it’s Clinton by a mile, with Trump praying for black swans,” only to “predict” one week later “Trump-Clinton Probably Won’t be A Landslide.” A few days ago, in a desperate attempt to analyze the new polls showing Trump closing in on Clinton, Slate explained sheepishly, “Things realistically couldn’t have gotten much worse for Trump than they were a few weeks ago, and so it’s not a shock that they instead have gotten a little better of late.” Some current polls even show Trump with a slight lead.

The reality is that polling is incapable of accurately predicting the outcome of elections like this one, where so many voters are angry, resentful, emotional, negative and frightened. In my new book, Electile Dysfunction: A Guide for the Unaroused Voter, I discuss in detail why so many voters now say they won’t vote at all, or will vote for a third-party candidate. As the New York Times reported, “only 9% of America chose Trump and Clinton as the Nominees.” Or to put the voters’ frustration with the candidates more starkly, “81 percent of Americans say they would feel afraid following the election of one of the two politicians.”

Despite their perceived lack of agency, these voters may, of course, end up voting for one of the two major candidates when Election Day comes around.

This may depend in part on whether the Libertarian Johnson-Weld ticket does well enough in the polls to be included in the presidential and vice presidential debates. The rules require that a third-party candidate reach 15% in five national polls in order to participate. This number is difficult to achieve because many of the polls do not include third-party candidates. But it is not impossible, and if it were to occur, and if the Johnson-Weld ticket outperformed or held its own against Clinton and Trump, then people who had decided not to vote or who couldn’t make up their minds might cast ballots for the Libertarian candidates. It is unlikely that the Green Party’s Stein-Baraka ticket will be included in the debates, or that it will garner any significant number of voters in key states, because the candidates are so extreme in their views and so out of the mainstream of American political beliefs. However, if a significant number of voters does choose a third or fourth party, this could have an impact on the election — just as the votes for Ralph Nader in 2000 may have determined the Florida outcome, which in turn determined the general election outcome.

The bottom line is that in a bizarre election like this one — with so many variables and so much emotion — polls may well under- or over-predict votes for the two major candidates. Think about the vote on Brexit. Virtually all the polls — including exit polls that asked voters whom they had voted for — got it wrong. The financial markets got it wrong. The bookies got it wrong.  The 2016 presidential election is more like the Brexit vote in many ways than it is like prior presidential elections. Both Brexit and this presidential election involve raw emotion, populism, anger, nationalism, class division and other factors that distort accuracy in polling. So anyone who thinks he knows who will be the next president of the United States is deceiving himself.

To be sure, the Electoral College vote is sometimes less difficult to predict than the popular vote, because it generally turns on a handful of closely contested, critical states, such as Ohio, Florida, Pennsylvania and Virginia. But in this election, there could be surprises in states that are usually secure for one party or the other. So even the electoral vote will be more difficult to predict than in previous elections.

One reason for this unique unpredictability is the unique unpredictability of Donald Trump himself. No one really knows what he will say or do between now and the election. His position on important issues may change. Live televised debates will not allow him to rely on a teleprompter, as he largely did in his acceptance speech or in his speech during his visit to Mexico City. He may once again become a loose cannon. No one can predict what he will say or do next. This may gain him votes, or it may lose him votes. Just remember: few, if any, pundits accurately predicted how far Trump would get when he first entered the race. When it comes to Donald Trump, the science of polling seems inadequate to the task.

Hillary Clinton is more predictable, but her past actions may produce unpredictable results, as they did when FBI Director James Comey characterized her conduct with regard to her emails as “extremely careless.” It is also possible that more damaging information about her private email server or the Clinton Foundation may come from WikiLeaks or other such sources (whether these “revelations” are actually incriminating seems to be beside the point for those 54% of voters who, without first-hand knowledge of the investigation, suspect that the FBI engaged in a preferential treatment by not seeking criminal charges against Clinton). Finally, it is difficult to assess what impact, if any, her recent health issues may have on voters.

Another unpredictable factor that may have an impact on the election is whether there are terrorist attacks in the lead-up to the voting. Islamic extremists would almost certainly like to see Trump beat Clinton, because they believe a Trump presidency would result in the kind of instability on which they thrive. If ISIS attacks American targets in late October, that could turn some undecided voters in favor of the candidate who says he will do anything to stop terrorism. If voters were to change their votes based on terrorist acts, that would only encourage more terrorism in the run-up to elections.

A final reason why this election is so unpredictable is because the voter turnout is unpredictable. The “Bernie or bust” crowd is threatening to stay home or vote for the Green Party. Young voters may do here what they did in Great Britain: many failed to vote in the Brexit referendum and then regretted their inaction when it became clear that if they had voted in the same proportion as older voters, Brexit would likely have been defeated. Some Clinton supporters worry that black voters who voted in large numbers for Barack Obama may cast fewer votes for Clinton in this election. Voters who usually vote Republican but can’t bring themselves to pull the lever for Trump may decide to stay home. Turnout is unpredictable, and the effect of low voter turnout is also unpredictable.

So for all these reasons and others, no one can tell how this election will turn out. It would be a real tragedy and an insult to democracy if the election were to be decided by those who fail to vote, rather than by those who come out to vote for or against one of the two major candidates.

Alan M. Dershowitz is professor emeritus of law at Harvard University and author of Taking the Stand: My Life in the Law and, most recently, Electyle Dysfunction.

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  • Devon

    If Hillary has another attack of whatever medical problem she really has (Parkinson’s, TIA’s, something else?) especially during any of the debates, the Democrats will have to think very seriously about asking her to step down as the candidate. Failure to do so would demonstrate that the Democrats don’t have the well-being of the country in mind. That might be enough to give Obama an opportunity to suspend the election and continue in office.

  • ed halperin

    HC is running sa terrible campaign, and her handlers are not helping. Politics is always a local issue, and she has to personalize and respond to people sense of insecurity and/or the disruptions she would cause. She has to differentiate herself from Obama and take a more centrist position. Turning left in the face of on going traffic is a mistake. Trump presentation of showing taxes or no taxes, is seductive in terms of getting publicity for himself. Will he or won’t he. It arouses exhibitionistic interest. Just looking on AOL in the morning you have smiling up beat Trump, and sour looking Hiliary. Just think of Bill’s smile.
    Black lives matter but also White Lives Matter. The newsweek article of the Trumps deals, and his basically giving a thin veneer of respectability to his franchise needs to be worked on as an on going sham. The absolutely
    tricky Dick type of deals with foreign rulers/andor their

  • Gary Johnson oddly represents the worst of both parties, and will lose support as his views become more widely known:

  • Tony Trenton

    For such a cleaver man to repeat his mistakes over and over.

    He voted for Obummer Twice!!

    Now he said he would vote for the Obummer surrogate ‘Hillary Clinton’!!!

    To say that I am very disappointed. Is a an understatement !!!

    I will put Dershowitz on my list of ‘Intelligent Idiots’

  • It doesn’t take the learned Prof Dershowitz to write an article like this. Anyone with a minimal understanding of the situation could have put this article together.

  • I think that Dershowitz has missed the point of what’s happening in America.

  • Aliza

    I was at a Pence rally a couple of hours ago in Scranton, PA. Pence draws hundreds of enthusiastic supporters.
    The energy was vibrant, positive and full of brotherly love.

    It is unfair to the American public that the media casts the Trump campaign as dark, fearful and angry. It really is not that way.

    Dershowitz misses the point. Trump is making America Happy Again. But I think The Dersh is not a happy kind of guy. He doesn’t speak the language. The upbeat Trump rhythm doesn’t resonate in his head. Trump has some good plans laid out – and they are all full of the power of positive energy and optimism. He has his goal and he is going for it!

    What The Dersh does resonate to is a sense of justice. So why is he not outraged with Hillary’s obstruction of justice and negligence? And of the FBI giving her preferential treatment?

    So The Dersh misses the good in Trump and misses the bad in Hillary – so he comes up empty.

  • The only thing predictable about this election is that the caliber of Democratic and Republican nominees has declined in every election cycle since the late 1900’s.

  • tullymd

    60% of American disapprove of Trump and Clinton. 85% disapprove of Congress. The US is committing national suicide.

  • Rachel Cohen

    In an honest election–there is no way Hillary could beat Donal Trump.

  • Nach Shon

    Had here-to-fore thought Dershoowitz was sharp & competent. But when he winds up his view with an obvious lie (democracy), then one has to question everything else.

    • Aliza

      It is time to put to rest the idea that Alan Dershowitz is henceforth a person to look to for intelligent analysis and opinions.