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Category Archives: Elections
Direct Democracy in Ohio
This Tuesday, voters in Ohio will decide the future of direct democracy in Ohio. For the most part, the U.S., like many other democracies is a republic. In other words, the usual way that laws get made is through the legislative process with elected representatives debating, amending, and voting on proposals. In theory, the will of the majority is expressed through their representatives. A little over a century ago, reformers during the Progressive Era argued that there were flaws in the representative system that sometimes allowed a minority to block useful and popular legislation. The remedy was the initiative and referendum process which allowed ordinary voters to get proposals on the ballot were they could be directly determined by the voters.
Now, not every state has authorized the initiative and referendum process. Even in those that do, the rules differ as to how many signatures are required. However, for the most part, states that allow for direct democracy (whether through proposals initiated by voters or by proposals referred to the voters by the government) only require a simple majority for the proposal to pass.
Even from the beginning, there has been resistance to the initiative and referendum process. After all, special interests that are able to get what they want from elected officials do not like the voters having the ability to override those efforts.
Also posted in GOP, Politics
Tagged Abortion, Initiatives, Ohio
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The Mostly Dead Independent State Legislature Theory
Two clauses of the Constitution — one for Congressional elections and one for the selection of presidential electors — give the primary responsibility for adopting the rules governing elections to state legislatures. The problem with these two clauses is that the U.S. Constitution does not create state legislatures. Instead, state legislatures are created by the states themselves. Not too surprisingly, different states structure their legislatures differently — one state (Nebraska) only has a unicameral legislature, many states allow the voters to initiate and approve legislation, each state has a different number of legislative districts, and some states have unique rules on what laws can be vetoed by governors and how many votes it takes to override a veto.
Traditionally, the Supreme Court has resolved this problem by holding that the election clauses simply refer to the legislative power of the state. Each state is free to create its own rules about the composition of the state legislature, how many votes it takes to pass legislation, and which body gets to make certain election-related decisions (including delegating the redistricting power to independent commissions). There has been a theory floating for years on the conservative side that these clauses establish a state legislative power that is “independent” of state law and state constitutions. While this theory keeps reemerging, this theory has repeatedly failed to be adopted by the U.S. Supreme Court.
In the last round of redistricting, several state court (including North Carolina, Ohio, and New York) invalidated redistricing maps based on state constitutional provisions related to elections. Initially, the North Carolina courts invalidated that’s states congressional redistricting plans. North Carolina Republicans asked for the Supreme Court to review that decision based on the independent state legislature theory arguing that the U.S. Constitution barred state courts from interfering with the state legislature’s power under the U.S. Constitution to set election laws related to federal elections even if those laws violated the state constitution.
Also posted in Judicial
Tagged Independent State Legislature, North Carolina, redistricting, Supreme Court
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Voting Rights Act — A Glimmer of Hope
On Thursday, the United Supreme Court issued its opinion in Allen v. Milligan, a case in which Alabama voters challenged the state’s new congressional district lines under Section 2 of the Voting Rights Act. As people may remember, due to COVID and the resulting delay in the 2020 census, Alabama completed its redistricting process shortly before filing began. Although the voters quickly filed their case, and the three-judge panel quickly heard the challenge and issued its decision, a 5-4 majority decided that any change caused by any new lines issued by the judges would be too close to the start of the election process (but that the legislation changing the lines was not) for the judge-drawn lines to be used in the 2022 election. So the 2022 election was held under the new lines drawn by the legislature while the U.S. Supreme Court decided whether those lines were valid. In its ruling this week, five justices (with Justice Kavanaugh switching sides and Justice Jackson replacing Justice Breyer) upheld the trial court ruling.
To start with the legal considerations, Section 2 of the Voting Rights Act bars any voting practice or procedure that causes a protected group to “have less opportunity than other” groups “to elect representatives of their choice.” While Section 2 also contains language disavowing an express requirement of proportionality, previous cases have found that Section 2 applies to redistricting and that it requires those bodies charged with redistricting to consider whether the maps give sufficiently large racial and ethnic groups a fair shot at electing a proportionate number of members. Basically, this is done by drawing either “minority influence” districts (in which minorities are a large enough percentage of the voters that they can form a majority by aligning with like-minded non-minority voters) and “minority majority” districts. (in which the minority group is over 50% of the likely voters).
The current language in Section 2 was adopted in the early 1980s. The first major case applying Section 2 to redistricting devised a three-part test. First, the voters needed to show that minority voters are sufficiently concentrated that there is a reasonable map which would give them an additional minority influence or minority majority district. In equal protection cases, the Supreme Court has made clear that maps that grossly violate traditional considerations to force geographically dispersed minority enclaves into the same district are forbidden. Second, the voters must show that the minority group is politically cohesive. In other words, that a significant majority sees itself as one group and tend to support the same type of candidate. (For example, it might be harder to show that Asian voters are a group but easier to show that Vietnamese voters are a group.) Third, the voters must show that the majority group (almost always white voters) will oppose the candidate supported by the minority group. In other words, the last two parts require showing that racialized voting is still common in the jurisdiction.
Also posted in Civil Rights, House of Representatives, Identity Politics, Judicial
Tagged Alabama, Florida, Georgia, Louisiana, North Carolina, redistricting, Supreme Court, Voting Rights Act
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What the Indictment Might Mean for 2024
To begin with the obvious, an indictment is a document used to formally bring criminal charges against an individual (here the Orange Menace). Under the law, all criminal defendants are presumed to be innocent of the charged offense, and the prosecution has the burden to present sufficient evidence to convince twelve jurors to unanimously agree that the evidence proves that defendant guilty beyond a reasonable doubt.
There is no precise timetable for when a case must go to trial. The U.S. Supreme Court has held that, as a matter of federal constitutional law, a trial begun within eight months of charges being filed is sufficiently speedy to satisfy the speedy trial clause of the U.S. Constitution. If, as often happens, it takes more than eight months to bring a case to trial, the courts then use a balancing test to decide how long is too long. In theory, Trump might be able to delay the trial until after the 2024 election. If he succeeds in this goal, the problems for him will be mostly how much of a distraction the pending case(s) will be (both in terms of time and money) and how voters react to the charges. While it’s too early to tell for sure, the initial reaction of voters seems to be that the true believers will see any accusation against their god as persecution and an attempt to block them from electing him. This groups might be just enough to get him the Republican nomination, but this group is not large enough to get him elected. On the other hand, a significant group of swing voters seem to be tired of the chaos and criminality associated with Trump, and these charges (unless something else comes out to undermine them) seem likely to make it harder for Trump to win the general election.
The “interesting” questions come when Trump is convicted. (Most defendants are convicted. While there is an old saying that a grand jury would indict a ham sandwich, that saying is only half true. Yes, the prosecution controls what a grand jury hears, but they still need some credible evidence that the defendant committed a crime. And, after you get the indictment, you still need to win a trial. While some prosecutors might put the hand slightly on the scale to get an indictment in a case that is a close call, it does little good to bring charges when your evidence is so weak that you have no chance at getting a conviction.) And this is a question of ballot laws in the fifty states (plus D.C.) and the rules of the Republican Party.
Also posted in Donald Trump, GOP, Presidential Candidates, Primary Elections
Tagged 2024 election, Criminal Charges, Donald Trump
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Waiting for the Other Shoe to Drop
There have been signs, including a posting on his Twitter-alternative website from the Crook-in-Chief that an arrest was supposed to be about to occur, that Donald Trump may soon be the prisoner in the dock. Obviously, until charges are filed, any discussion of potential charges are just speculation. But here is what seems to be in the wind. And I did postpone writing this to see what might get filed this past week, but, since there is no guarantee about when these charges will come, I decided to go ahead with this post.
Right now, the case that appears on the eve of being filed is from Manhattan County in New York. These charges arise out of something which is, unfortunately, somewhat common with closely-held corporations — an inability to keep the corporation separate from the person. Legally, a corporation is a separate legal person from its owners, officers, and employees. The corporation is legally responsible for paying its own expenses and liabilities. The personal expenses and liabilities of the employees are supposed to be paid by the employees out of their personal funds. If the employer covers those expenses, that is considered to be compensation to the employee (or dividends to the owner) which has to be reported to the IRS and state taxing authorities as income for the employee (or income to the owner). This situation is what got the Trump Organization charged and convicted for benefits that it provided to some of the executives which were included as business expenses (and employee compensation is a business expense) on the corporate returns but not reported as income to the executives.
In Trump’s case, the issue is sexual misconduct by the CEO of the company. Now, if the company is being sued for sexual harassment of its female employees under Title VII, that is a legitimate business expense. If the CEO is sued for sexual misconduct in his personal ife, that is not a legitimate business expense, and he should be paying the settlement and the legal expenses out of his personal account. Complicating the matter for Trump is that these issues arose while Trump was running for office. That raises the issue of whether the settlements and non-disclosure agreements were for personal reasons — to avoid his spouse learning about his infidelity — or for political reasons — to avoid the public learning that the candidate is a liar and cheat who can’t even keep his wedding vows much less any other promise. It is clear that there are some fraudulent business records here as Michael Cohen and the women should not have been paid from Trump Organization accounts but whether the offense is a felony or misdemeanor depends upon whether that improper use of corporate funds where for other criminal purposes — namely avoiding tax liability on the part of Donald Trump (if Trump had paid the bills and then taken a draw from the company that would have been income to Trump and the expense would not have been tax deductible) and the Trump Organization (distribution of income by a company is not tax deductible but legal expenses are) or to avoid reporting a campaign expense (if the settlement was designed to avoid the political consequences, it would be considered to be a campaign expense).
Also posted in Donald Trump, Judicial
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Georgia Runoff
The last election of 2022 will conclude on Tuesday with the runoff election for U.S. Senator in Georgia. While there are still some races that will go to recounts, all of the statewide and congressional races seem to be outside the margin at which a recount could make a difference. (There are three races with margins between 500 and 600 votes — Arizona Attorney General, California Thirteenth District, and Colorado Third District. In the Minnestoa Senate recount in 2008, the net swing from the original results to the recount results was 450 votes with an additional 87 votes gained in the election contest. The closest of the three races going to recount is 511. While other recounts have resulted in bigger swings, they were in races with bigger margins and Minnesota remains the largest swing that changed the results of a race.
The significance of the Senate race is not quite as big as it was in 2021 due to the Republicans apparently taking the House (but the Republican’s inability to reach a consensus on the next Speaker will be the subject of a future post) and the fact that the Democrats already have 50 seats. But the result still matters for five key reasons.
First, the additional seat will alter the composition of committees. With a 50-50 Senate, the committees are evenly divided. While the rules currently allow a bill or nomination to proceed to the Senate floor on a tie vote, a 51-49 Senate would result in the Democrats having a majority on the committees.
Also posted in General Election Forecast, Senate
Tagged Florida, Georgia, Herschel Walker, Joe Manchin, Krysten Sinema, Missouri, Montana, Ohio, Raphael Warnock, Texas, West Virginia
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Where Things Stand
Four days after election day and we are waiting for results in the states with lots of mail-in ballots and the states that have ranked choice voting. The Democrats seem to be holding their own in the Senate and Governor’s races — so far gaining one Senate seat (Pennsylvania) and a net of one Governor’s mansion (picking up Maryland and Massachusetts as expected and losing Nevada which was the most vulnerable seat). Several potential Senate gains fell short — especially Wisconsin and North Carolina. While votes outstanding in Nevada, it looks like that will be a hold given where those votes are. That will make the Georgia runoff (which was expected) about the margin in the Senate rather than control.
As expected, we had a rough night/days in Florida and New York. In Florida, the lines performed as the Republicans hoped — giving them four new seats and costing the Democrats three seats. In New York, the new lines also worked as expected to give Republicans more seats. The current numbers are 15-10 with Republicans leading in the last outstanding seat. If they hold the Twenty-second, that would give them a sweep of the lean Republican/toss-up seats and a gain of thee with a loss of three for the Democrats. In short, Florida plus New York combined gave Republicans a gain of six or seven seats. Likewise, the new lines in Georgia flipped one seat to the Republicans. Thus, three states represent half of the Republican gains to date. In Virginia, Republican gains were kept to one seat — the one that was seen as most likely to flip going into the election.
Ohio and North Carolina, however, were good states for the Democrats at least at the House level. Ohio was the opposite of New York with all of the tossups going to the Democrats for a gain of one seat (and a loss of two for the Republicans). Likewise, the Democrats took the toss-up in North Carolina which, when combined with the new lines, gave the Demcocrats a gain of two (and a loss of one for the Republicans). In short, these maps netted a plus three for the Democrats. Similarly, the new maps in Illinois led to a gain of one for the Democrats and a loss of two for the Republicans.
Also posted in House of Representatives, Senate
Tagged 2022 elections
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The Midterms-Preview (Part 5)
Finally, we reach the end of the evening. Five hours after the first polls closed in Kentucky and Indiana, we reach 10 p.m. Central ST. At this time the last polls close in North Dakota and Idaho (covered in part 4). Likewise, the remainder of the polls (representing the vast majority of the state) close in Oregon. And, even though both states have a significant number of mail-in votes (as is true for several of the western states discussed in earlier posts), the polls will close in California and Washington.
I’ll start with Washington. Washington has a top two primary (as does California). Unlike Califronia, all of the races feature a Democrat against a Republican. While there are some polls showing a potentially competitive race for Senate, I’m just not seeing it. Washington is too blue in recent years. Even in a red wave, Senator Patty Murray should win. Most of the polls making this state seem close come from polls sponsored by Republican-affiliated groups. While they may end up being right, even they are merely showing a close race. The current split in the House is seven Democrats and three Republicans. There are three seats that could flip. The Third District is currently held by the Republicans, but, in the primay, the incumbent representative barely finished in third after having the integrity to vote to impeach President Trump. Whether moderate Republicans will vote for the Democrat in the general and flip this seat — for the next two years to the Democrats — is the big question. In a red wave, the Republicans have a chance at taking the Eighth District and the Tenth District. The Tenth District (basically a swatch southwest of Seattle from Tacoma to Olympia) is more likely to stay Democratic. The Eighth District (an exurban/rural district to the east of Seattle) looks more like a swing district, but Democrats are still favored. Because of mail-in ballots, it typically takes several days to figure out who wins close races.
Moving south to Oregon, the big race is for Governor. And it’s a classic argument for ranked-choice voting. Business interests have pushed a moderate Democrat to run as an independent, and this candidate may take just enough votes to allow the Republicans to win by a narrow plurality. The race is a pure toss-up. Senator Ron Wyden is solidly favored to be reelected which might just have enough coattails to allow the Democrat to win the open race for governor. In the House, the current split is four Democrats to one Republican with one new seat. In the Fifth District, the Democratic incumbent lost in the primary to a progressive challenger. There is a risk that the progressive nominee is too progressive for the district which runs from the suburbs of Portland into a rural part of the state to the south and east of Portland. The Sixth District is the “new” district and is a little bit geographically smaller than the Fifth, but like the Fifth it runs from the immediate suburbs of Portland into the rural areas to the south and west of Portland. The Republicans also have outside chances in the Fourth District, an open seat, which runs along the Pacific Coast in the area to the south and west of the Fifth and Sixth. If the Democrats get all three of the seats, they could potentially keep the House. In a red wave, the Republicans could gain all three seats.
Also posted in General Election Forecast, House of Representatives, Senate
Tagged Alaska, California, Gain Newsome, Hawaii, Oregon, Washington
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The Midterms-Preview (Part 4)
By 9 p.m. Central ST, we will be getting some results from the early states which will give us some idea of how the night is going with a strong emphasis on the some. As noted in Part 1 of this series, every state treats the counting of mail-in votes. In some states, like Missouri and Texas, mail-in votes are likely to be the first results reported. In other states, like Michigan, those votes are likely to reported after the election day results. And for election day results, precinct sizes (more importantly the number of voters per election judge) and other factors have historically resulted in longer lines at closing time in urban area. When combined with the number of precincts in urban areas, in early states, rural areas are likely to report a greater share of their results in the first couple of hours. Both of these factors distort the conclusiveness of early vote counts (which is why the best analysts start looking at what vote is still outstanding — both where that vote is and the total number of votes — in forecasting whether it is possible to call the race). But by this time of the evening, there is some hint at the level of turnout in the areas that tend to vote Democratic and the areas that vote Republican and which way swing areas are swinging.
In turn, this information gives us some idea of the accuracy of pre-election polls. In viewing pre-election polls, there are three things to remember. First, in viewing them, you should focus on two things — margins and the size of the “undecided” voters. In every poll, there will be some undecided voters (and, because voters tend not to want to waste votes, the supporters of third-party candidates should be treated as undecided as a significant share of them will move to one of the two major candidates by election day). Because undecided voters will not split 50-50, a large pool of undecided voters makes the margin less reliable. An eight percent lead with ten percent undecided is more likely to hold than a twelve percent lead with twenty percent undecided. On the other hand, it is likely that both candidates will pick up some undecideds. So both candidates are likely to end up with something higher than their last poll number. Second, in looking at the margin, every poll has a margin of error (typically between three percent and four percent). That margin of error applies to each candidate. Which means, in theory, that even a well-constructed poll can be off on the margin by six or seven percent.. Part of the error is that every pollster has their model on who is likely to vote and how to weight responders to overcome response bias. Some years the actual pool of voters is bluer than the model shows and in other years the actual pool of voters is redder than the model shows. Finally, a poll is a snapshot in time. Events occurring after the poll is taken will move a small percentage of voters (both undecided voters and voters who were tentatively supporting a candidate). In short, it is highly probable that the polls will be off by some margin. And while the direction and size of the error will not be uniform nationally, the early returns can give an idea of the direction and size of the error.
As things stand four days out, the polls seem to be indicating a red ripple which will switch a narrow Democratic majority in the House to a narrow Republican majority in the House. The Senate could go either way and the hold of state offices could swing either way as well.
Also posted in General Election Forecast, House of Representatives, Senate
Tagged 2022 elections, Idaho, Montana, Nevada, North Dakota, Utah
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The Midterms — Preview (Part 3)
By the time that polls close in Arkansas at 7:30 p.m. Central ST, we should be starting to get votes from the early states, but most of the key races will still be classified as “too early to call.” Arkansas has become so red over the past two decades that none of the races are likely to be close. The big races will be the ballot issue. From the right is a proposition to require supermajorities for propositions in future elections and a provision enshrining a version of the Religious Freedom Restoration Act in the Arkansas Constitution. As we have seen at the federal level, this Free Exercise Clause on steroids will cause significant problems in Arkansas as everything will become somebody’s religious belief. Arkansas will also vote on legalizing marijuana.
At 8:00 p.m. CST, polls will close in the remaining parts of Kansas, Michigan, South Dakota, and Texas (with those races covered in Part 2 of the preview). Polls will close for the entire state in Arizona, Colorado, Iowa, Louisiana, Minnesota, Nebraska, New Mexico, New York, Wisconsin, and Wyoming.
Arizona will feature several key races. At the state office level, Governor, Attorney General, and Secretary of State are all open seats. The Republicans have nominated Trumpist candidates for these positions who refuse to commit to recognizing the election results in 2024. Particularly for governor, they have nominated a media celebrity who is not qualified. But these races are currently too close to call. For Senate, the Republicans have also nominated an extremist. It looks like Senator Mark Kelly will hold onto the seat, but the seat is probably the third most likely pickup for the Republicans after Nevada and Georgia. If the Republicans have a good night, that seat could flip.
Also posted in General Election Forecast, House of Representatives, Senate
Tagged Arizona, Arkansas, Colorado, Iowa, Louisiana, Minnesota, Nebraska, New Mexico, New York, Wisconsin, Wyoming
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