Pennsylvania Redistricting

Monday, the Pennsylvania Supreme Court issued an order (with attached maps) redrawing the Congressional Districts for Pennsylvania  This order follows on last month’s decision finding that the 2011 map violate the Pennsylvania Constitution as a partisan gerrymander.  The United States Supreme Court is currently considering two cases — one argued last fall and one scheduled to be argued next month — on whether the U.S. Constitution also bars partisan gerrymanders.

I will leave it to our local experts to follow up on exactly how the new lines should impact November’s election.  The key points to make for now are:  1) this map will govern this year’s elections as filing with the Supreme Court’s including a time table for implementation of the order and candidate filing that will allow the primary to take place as scheduled; 2) the old maps were gerrymandered in such a way that the Republicans have carried 13 of the 18 districts (and the same 13) in each of the three elections so far under the old map (even though the Democrats won state-wide by 5% in 2012 and 9% in 2014 and barely lost in 2016);  and 3) in the three elections under the old map, 37 of the 39 Republican wins were by double digits (the other two involved margins of 9% and 4%).   The early numbers that I have seen from national prognosticators is that Democrats should pick up at least two seats in a 50-50 cycle and, in a cycle in which Democrats get 55% or more nationally, the Democrats would pick up an additional 2 to 3 seats (a 9-9 split or 10-8 in favor of the Democrats).  That compares to 2012 in which the Democrats got 53% nationally but still only won 5 seats in Pennsylvania.

One thing that is significantly different about the new map is that there are less weird shapes, and most of the weirder shapes in the new map comes from not splitting counties or municipalities unless such splits are absolutely necessary to maintain equality.  There is also some changes in the numbering.  As a result, some incumbents (including whomever wins the upcoming special election in Western Pennsylvania) will have to decide what district they will run in this year.  Some incumbent may be looking at a situation in which either: 1) their base is split between multiple districts; 2) they live in one district while the heart of their old district is in another district; 3) their new district contains a substantial portion of the old district of another incumbent.  As such, sitting members may have to decide between retiring, challenging another incumbent from their party, or running in a district in which they will have a difficult time running.  We may not know until filing closes on March 20 (one week after the special election) how the incumbents will reshuffle from the old seats to the new seats and whether we will have any incumbent vs. incumbent primaries or general elections.

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Supreme Court Timewarp: Revenge of the Computer Nerds

Imagine that you are back in the mid-1980s.  Most people’s knowledge of computers comes from the movie Wargames.  Some larger business and universities had computer networks with employees having work stations, but home computing was just beginning.  Apple had just introduced the McIntosh, but, if you used a Microsoft operating system, you were using MS-DOS.  Additionally, your home computer used a dial-up modem if you wanted to communicate with other computers.  To communicate with another computer, you needed to know the phone number for that computer’s modem.  (If you were just searching to see what was out there, there were techniques and programs known to hackers to find other computers and save those numbers for later use.)  A pre-internet existed through “bulletin board systems” which allowed the posting of messages and downloading and uploading information through that system.

It was in this era that Congress passed the Stored Communications Act of 1986 as Title II of the Electronic Communications Privacy Act of 1986.  While there have been some minor changes since 1986, the core provisions of that Act (codified as Sections 2701 through Section 2712 of Title 18 of the United States Code) are essentially the same as they were in 1986.

While most of the provisions of the Stored Communications Act protects the rights of those who use electronic communications, some of the sections (including Section 2703) establish the procedure by which the government can obtain stored communications when needed for a criminal investigation.  The procedures recognize that these communications might be stored in another state and require companies to honor warrants issued in the state in which prosecutors need access to those communications. Continue Reading...

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Charlotte looking at RNC 2020 Bid

Charlotte is thinking about bidding for the 2020 Republican National Convention:

The City of Charlotte, working together with key partners and stakeholders, is evaluating options to host the 2020 Republican National Convention.

 This is the first step in submitting a proposal highlighting all that Charlotte has to offer as a convention destination.  Continue Reading...

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2020 Democratic Convention — Unity and Reform Commission — Part 2

One of the issues in the last several primary cycles — for both parties — have been the role of unpledged delegates.  There are several reasons why both parties designate certain party officials (and on the Democratic side, elected officials) as automatic delegates.  First, it removes these individuals from the competition for the “regular” delegate slots making it easier for grassroots activists to compete for a delegate slot.   Second, these individuals have a slightly different perspective than the voters.  While everyone wants the party to win the White House, state party officials are also responsible for winning as many down ballot races as possible.  Elected officials want to win their own races.  As such, in theory, if the leading candidate seems too extreme or flawed, the unpledged delegates could swing the nomination to the second-placed candidate.   Before 2016, the Republicans decided to bind their automatic delegates based on primary results in their state.  After 2016, some Republicans might regret that their automatic delegates no longer had that power given the continuing fiasco that is Donald Trump.  However, in neither party, the automatic delegates have ultimately supported the candidate that won the most delegates; so this theoretical power has never been used.

Even though this power has never been used to change the result, many Democrats have wanted to reduce the power of the automatic delegates.  The resolution that created the Unity and Reform Commission mandated that, while elected officials (Senators, Representatives, Governors) and distinguished party leaders (e.g., former presidents, former DNC chairs, former speakers/caucus leaders) would remain unpledged, DNC members would be pledged in accordance with the primary results.  The task for the Unity and Reform Commission was to make recommendations as to how to handle this process.  First, the recommendations distinguish between DNC members who represent the states (state party chairs and the DNC members elected by the state parties) and other DNC members (at-large members and those who represent groups of elected officials).  The “state” members will be bound based on the state results; and the “national” DNC members will be bound based on the national results.

On the issue of exactly how to bind these automatic delegates, the Commission did not reach a final recommendation but, instead, suggested two alternatives.   The first would just pool the delegate votes with no individual votes on the first ballot.  The second would create a mechanism for assigning the automatic delegates to specific candidates based on the delegates personal wishes with some random mechanism if the personal preferences do not line up with the required allocation.   Unlike regular delegates, however, the automatic delegates would be absolutely bound to these allocations. Continue Reading...

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2020 Democratic Convention — Unity and Reform Commission — Part 1

While, in one sense, it is very early to talk about who will be President of the United States on January 21, 2021, there are many people who think that process has a lot to do with results.  And the drafting of the rules for 2020 have already started.

On the Republican side, there is no public effort to re-write the rules.  Unlike the Democratic Party, the Republican party has the basic rules (which are less detailed than the Democratic Party rules) for allocating delegates to the national convention within the actual Rules of the Republican Party and require a supermajority of the Republican National Committee to change those Rules.

The Democrats, however, keep the rules for delegate selection separate from the party by-laws.  So every cycle, the rules and by-laws committee drafts those rules and submits them to the full Democratic National Committee for approval.  The starting point for these rules is the rules from the previous cycle.  However, because no rules are perfect, most contested campaigns lead to complaints about the rules.  These complaints in turn have, in most of these cycles, caused the party to appoint a commission to study whatever rules were seen as being a problem in the last cycle and make recommendations. Continue Reading...

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A Long December

The year comes to a close with its usual mix of good news and bad news.

On the 2020 presidential election, the Unity Reform Commission has completed its work.  Josh Putnam over at Frontloading Headquarters has posting summaries of the Commission’s decisions.   From the first two summaries, the recommendations seem to be moving toward more open primaries (a reversal of the party’s traditional support for closed primaries) and to make caucuses more like primaries with a preference toward using the primary if there is a state-run primary.  These recommendations will go to the Rules & By-laws Committee (which folks may remember from 2008).  The Rules & By-laws Committee will take these recommendations into account in drafting the 2020 Call and Delegate Selection Plan.  When the draft is concluded, the RBC’s draft goes to the full Democratic National Committee for approval.  If the Unity Reform Commission believes that the RBC is not fully implementing their recommendations in the draft, they can ask for the full DNC to intervene.  Presumably, the party will also begin its site selection process early in 2018.

As the site selection and the rule drafting process continues, there will probably be a lot of discussion here.  For now, it is important to be cautious about changes driven by the problems of the last cycle.  There is always a temptation to “fight the last war.”  But the problems in one cycle do not necessarily recur in the next cycle, and it is important not to do things that will probably make more problems than they fix. Continue Reading...

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To Bake or Not to Bake

This week, the United States Supreme Court will hear arguments in Masterpiece Cakeshop vs. Colorado Civil Rights Commission.  The case involves Colorado’s civil rights statutes which prohibit discrimination based on sexual orientation.  The petitioner — a baker — claims that he should be exempt from that requirement because he believes that gay marriage is morally wrong and, by making him sell a wedding cake to the happy couple, the Colorado law is compelling him to endorse the wedding.

In many ways, this case is similar to the Hobby Lobby case from several years ago, but, in some key ways, it is different.  The main difference requires going back thirty years to a rather infamous free exercise decision, Employment Division of Oregon vs. Smith.  In Smith, Justice Scalia all but wrote the Free Exercise Clause out of the Constitution — holding that it created no exemption based on religious belief from a generally applicable law.  In response, Congress passed the Religious Freedom Restoration Act which was intended to restore the pre-Smith interpretation of the Free Exercise Clause.  There are, however, two problems with the Religious Freedom Restoration Act.  First, as shown by Hobby Lobby, it actually created more protections than the pre-Smith decisions.  Second, the United States Supreme Court has held that it only creates a rule for interpreting federal statutes and that Congress does not have the power to impose a similar rule on the states.  Because this case involves a state law, the RFRA does not apply.  While the baker attempts to raise a free exercise claim, that claim is unlikely to succeed under Smith as the ban on discriminating against homosexuals is a law of general application.  That does, however, leave the free speech claim.

The free speech claim brings us back into the Hobby Lobby universe where the question is whose perception controls.  Besides actual speech, free speech protection extends to expressive conduct.  Furthermore, as a general matter, the government may not compel speech.  The question is thus who is speaking in this case — a question that could blow a significant whole in civil rights law. Continue Reading...

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Tax Cuts vs. Tax Reform

The Republicans have set themselves the goal of passing tax legislation by the end of the year.  They took a major step by passing a budget resolution this past week which authorized tax legislation as long as that legislation had a net cost of less than 1.5 TRILLION over the next decade.  As such, as long as the CBO scores any legislation as complying with that cap, it is exempt from a filibuster.

That cap reflects a significant part of the current debate inside the Republican party — do they want a tax cut (reducing the overall tax burden) or tax reform (a revenue-neutral rewrite of the tax law).  This debate will be significant because the Republican approach is that those who make the most money pay the most taxes and therefore should get the most relief.  Thus, their proposals will be very top heavy on who gets the relief and the deductions most at risk will be those that benefit the middle class.

First, some Taxes 101 to set the background.  Both at the corporate level and at the personal level, calculating taxes begins with defining income.  Then there are certain authorized deductions from income that lead to a smaller income that qualifies as “taxable income.”  There are then income brackets in which you pay x% for the first $Y amount of income, than pay a slightly higher rate on the additional income above that amount (and just that additional income).  (E.g., If the top tax bracket is 40% and kicks it at $500,000, the taxpayer is only paying 40% on the income above $500,000 — so on an income of $700,000 that 40% only applies to the last $200,000 of income and the first $500,000 is taxed at a lower rate. )  After taxes are computed, the taxes can be reduced by tax credits. Continue Reading...

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Fall Elections

In most of the world, the practice is to limit the number of races being contested on any given election day.  Thus, regional elections are held on a separate day from national elections.  In the U.S., however, most states opt to hold state elections on the same day as national elections.  Thus, in most states, the election for governor either falls on the same day as the mid-term election or on the same day as the presidential election.  In a small number of states, however, the election for governor occurs in an odd-year.

Two states — Virginia and New Jersey — hold the election in the year after the presidential election.  (Three states — Kentucky, Louisiana, and Mississippi — hold the elections in the year before the presidential election.)  Both New Jersey and Virginia have a tendency — not absolute, but a tendency — to elect a governor from the party not in the White House.  In New Jersey, the last time that the party in the White House won the governor’s race was 1985.  In Virginia, while the party in the White House won in 2013, the last previous time that the party in the White House won was 1973.  There are a lot of reasons for these results — including. similar to the problem that the party in the White House faces in mid-term elections, the simple fact that governing is much harder than running for office, so supporters of the party in power tend to be disappointed with the actual fruits of their victory while those out of power tend to be angry and motivated.

As things currently stand, things are looking very good for the Democratic candidates in New Jersey.  Aside from New Jersey’s normal Democratic lean and the tendency for the party not in the White House to win, the Republicans nominated the current Lieutenant Governor, making it hard to separate the current Republican ticket from the corruption of the current administration of term-limited governor Chris Christie.  The Democratic candidate, Ambassador Phil Murphy, leads by double digits in every poll this fall.  While some of the polls show enough undecided voters to leave a theoretical opening for the Republican candidate, the race in New Jersey is not particularly close. Continue Reading...

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The Future of Redistricting

At 10 a.m. on Tuesday, October 3, the Supreme Court Justices will take the bench and the Chief Justice will call for arguments in Gill vs. Whitford — a case on direct appeal from a three-judge panel in which the majority of the panel found that the legislative districts in Wisconsin were the results of an unconstitutional partisan gerrymander.  Then, on Friday, the justices will discuss the case in conference, and — depending on the vote — either Chief Justice Roberts and Justice Anthony Kennedy will assign this case to one of the justices to write the opinion.  Then — probably in February or March — we will get a series of opinions (with possibly no opinion having the support of five justices) that will define the rules for the next cycle of redistricting starting in 2021.

This case has its roots in the framing of the Constitution.  The original structure of the British parliament awarded a certain number of seats to each incorporated borough (town) and to each shire (county).  When combined with the fact that only freeholders (property owners) had the right to vote, by the middle of the Eighteenth Century, there were boroughs that were very small with only a handful of voters (so-called “rotten boroughs”).   The non-representative nature of the British Parliament was one of the reasons why colonists did not accept the argument that they were represented by the British Parliament.  In drafting the U.S. Constitution, at least for the House of Representatives, the framers decided that representation in Congress would depend upon population based on a decennial census.

By requiring that representation in the House would be based on representation, the Constitution created a de facto requirement that states draw new congressional districts (at least when a state’s representation changed).  Some, but not all, states also based representation in state legislatures on population — again requiring periodic redistricting.  In simply requiring redistricting, the U.S. Constitution was ahead of its time.  Now, most countries that use a first-past-the-post system also have periodic redistricting.  The vast majority of them also use a non-partisan commission with specific criteria to draw fair and competitive district lines.  The framers, however, did not have the extra two centuries of seeing what works and what doesn’t work in the redistricting process.  And it is some of what happened next in the U.S. that has led the other countries to have neutral agencies handle redistricting. Continue Reading...

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