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Category Archives: Joe Biden
New Hampshire Primary
Today is round two for the Republicans with the New Hampshire Primary. Because primary dates are set by state law, there will also be a non-binding primary (a/k/a “beauty contest”) on the Democratic side (more on that below).
While there will be other candidates on the ballot, there are only two major candidates on the Republican side — Donald Trump and Nikki Haley. Given that New Hampshire has a semi-open primary in which independents can vote in either party’s primary, it is believed that there will be a significant number of “moderates” who opt to vote in the Republican primary. If there is a chance for Nikki Haley to win nationally, she needs a win in New Hampshire. Given Trump’s many issues (legal, physical, mental), the Republicans really do not need the chaos that would ensue if Trump “wins” the nomination but has to withdraw before the convention. (And while it is hard to project what the Supreme Court intends to do, it is easier for them to do the legally correct thing if Trump is not the presumptive Republican nominee.) New Hampshire is a proportional state, so unless Haley or Trump blows the other out of the water what really matters here is the perception that Haley can compete and beat Trump than the actual delegate count.)
On the Democratic side, the timing of the New Hampshire primary (set by state law) violates the national delegate selection rules. As a result, the primary is a non-binding primary. Because the New Hampshire Democratic Party has decided to resist the national rules and support the unenforceable state law mandating that other states let New Hampshire goes first, New Hampshire has had its delegate total reduced to ten delegates. More importantly, we do not yet have an approved plan for how those delegates will be chosen.
Also posted in NH Primary, Primary and Caucus Results, Primary Elections
Tagged Dean Phillips, Donald Trump, Joe Biden, Marianne Williamson, New Hampshire, Nikki Haley
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Elections Have Consequences — Biden Agenda Edition
It is a phrase that we repeatedly hear — typically by the majority as a justification for the unjustifiable, but elections do have consequences. But it’s not just who wins, but how they win. In many parliamentary countries, there is another common phrase a “working majority.” And the basic concept is that it is rarely enough to win by one or two seats. When you have a one or two seat majority, it only takes one or two members deciding to walk to cost the government the majority. And that’s in a parliamentary system where members risk forcing a new election if they defect from the government to the minority. In the United States, there is no threat of an immediate new election hanging over members’ heads to encourage the majority to stick together. As a result, the margin required for a working majority is somewhat larger in the U.S.
And that’s the problem that the current Democratic majority is facing. Currently, the Democrats have a 220-212 majority in the House (which will go up to 222-213 in January when all of the vacancies are filled). That means a mere four (now or five in January) defections means that nothing can pass. In the Senate, the Democrats do not have an actual majority. Even including the two independents who normally vote with the Democrats, the Senate is a 50-50 tie. Given the Senate filibuster rules, a 50-50 Senate can only pass reconciliation bills or confirm nominees, and even that requires all fifty members of the caucus to stick together at which point the Vice-President can break a tie.
The current mess on reconciliation and election reform is the result of the lack of a working majority. Needing every vote in the Senate requires getting the agreement of every Senator. Thus, each Senator can insist on concessions from the rest of the party. (It is a little harder in the House, but a group of five or more members have the same leverage). And to be clear, the leverage is not equal. When you need every vote, the ones who want to do less have a negotiating advantage over those who want to do more. The reality is that something is almost always better than nothing. So the “moderates” can tell the “progressives” that we are willing to vote for some increased funding for child care and clean energy and expanding Medicare but not for as much increased funding as you want, and the progressives have the option of accepting some funding for needed programs or not getting those programs at all. The only real limit to the moderates leverage is that, when it comes to needing to cut funding, progressive can counter by trying to trade off programs that they want for programs that the moderates want that progressives do not see as particularly useful. But that is very limited leverage. Thus, at the end of the day, the current numbers give a lot of additional power to Senator Joe Manchin of West Virginia and Senator Krysten Sinema of (suppoesedly) Arizona. (The supposedly is that Senator Manchin’s positions flow from the politics of West Virginia and it is unlikely that Democrats could elect a more progressive Senator from West Virginia. Senator Sinema’s positions on the other hand do not flow from Arizona’s politics as her fellow Senator from Arizona, Mark Kelly, who actually has to run in 2022, is not blocking current proposals.)
Also posted in Elections, House of Representatives, Senate
Tagged filibuster, Joe Biden, Joe Manchin, Krysten Sinema, Mark Kelly
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Georgia, Recall Elections, Impeachment, and Removal — a Legal Primer
In the aftermath of a weak of sedition and riots, I am seeing a lot of questions about issues related to the seating (or exclusion) of Senators and Representatives. I am also seeing questions about what can be done to bring a quicker end to the mistake that was the Trump presidency.
Let’s start with the Georgia elections. As we learned in November, it takes time to finalize the election results. In Georgia, there are three key deadlines. The first is the deadline for receipt of overseas ballots and for the curing of “rejected” absentee ballots and for determining the validity of provisional ballots. That deadline was the close of business today. So, at the present time, all of the counties should know if they have any votes left to count.
The second deadline is next Friday — January 15. By that date, all of the approximately 160 counties are supposed to have completed their county canvass and certified all votes to the Secretary of State. This deadline can be extended if the Secretary of State orders a pre-certification audit (as happened in the presidential race). (It is unclear how the audit will apply to the Senate races. The state law required one for the November election but is ambiguous as to the run-off election. The Secretary of State also opted for a complete hand recount of all votes in the presidential race — which technically is not an audit — but the statute only requires an audit of random counties and precincts. If a proper – in other words, limited — audit is conducted, the counties that have to do the audit may not need an extension.)
Also posted in 2020 General Election, Donald Trump, Elections, Senate
Tagged exclusion of members of Congress, Georgia, Impeachment, Jon Ossoff, Josh Hawley, Raphael Warnock, recall elections, Ron Johnson, Ted Cruz
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The Count
To quote the Grateful Dead, “what a long, strange trip it’s been.” Our hopes for a decisive enough result that the winner would be clear on November 3 failed to come to fruition. And since then, Trump and his allies have thrown everything but the kitchen sink into denying reality. Even as late as this week, Trump’s allies have been filing meritless cases to try to have judges cancel the votes in various states. And almost all of the case have been rejected by the courts. To date, the Supreme Court has not accepted any cases, and have left most cases proceed on the normal schedule (which means no decisions on taking any of them prior to January 8 when the Supreme Court next meets).
That leaves us down to one last abuse of the legal process — the joint Congressional session to count the electoral votes sent by the states. The current process dates back to the aftermath of the election of 1876. In that election, you had a handful of states with conflicting results certified by different entities. As such, you had multiple states sending votes from individuals that had been recognized by some part of state government as the official electors. Ultimately, a commission was established to resolve those disputes. While it took around a decade to get legislation through Congress, the Electoral Count Act of 1887 set forth the key provisions that are still in place today. The current language in Title 3 sets forth a multi-stage process.
First, prior to election day, each state legislature shall set forth the rules governing the selection of electors. These rules besides designating who makes the selection also dictate the procedures to be followed during that selection, the role to be played by various state agencies (legislatures, state election authorities, and local election authorities) in running the selection process, and who has the power to resolve disputes that might arise during the selection process (courts, state election authorities, local election authorities, and legislatures). While the Constitution does not mandate the use of the popular vote to select electors (and, in the early days, some states had the legislature pick the electors), every state has now opted for using some variation of the popular vote to pick electors. And every state has adopted procedures in which the initial resolution of election disputes are made by local election authorities and state election authorities with the potential for judicial review of those decisions.
Also posted in 2020 General Election, Donald Trump, Electoral College
Tagged Electoral Count Act, Josh Hawley, Louis Gohmert, Mike Pence, Mo Brooks, Ron Johnson, Ted Cruz
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Staffing a Government
Every four to eight years, one of the first questions after most presidential elections is who will occupy the key positions in the new administration. And there are a lot of positions to be filled. In reality, most of the day-to-day decisions that directly impact individuals are made by careerists. But the key policy decisions that ultimately guide those day-to-day decisions are made by the political appointees. Generally speaking, U.S. law recognizes two types of political appointees — those that require Senate confirmation and those that do not.
For the most part, positions that do not require Senate confirmation are typically part of the White House staff. There are other positions that do not require Senate confirmation (in the phrasing of the Constitution — “inferior officers”) who answer to Senate confirmed appointees, but recent years have seen a lot of legal wrangling about what positions can constitutionally be appointed by the president or Senate-confirmed officers without Senate confirmation. Prime examples of staff positions that do not require Senate confirmation include the Chief of Staff, the National Security Advisor, and the Press Secretary. What unifies all of these positions is that their legal authority is limited to advising the President (or an agency head). The key thing about positions that do not require Senate confirmation is that they have no legal authority to make policy decisions on their own behalf. The can recommend policies to the President or to some agency, but the President or the agency head has to sign off on the recommendation. And for the most part, the early announcements that we have had from President-Elect Biden and his transition office are White House staff positions that do not require Senate confirmation.
In recent administrations, we have seen the creation of certain staff positions with broad policy areas of responsibility (often referred to in the media as Czars). Conservatives tend to carp about these positions during Democratic administrations while going curiously silent during Republican administrations. The reason for these positions is that, due to the problems with filling Senate confirmed positions, presidents need people with policy expertise to fill the vacuum until the appropriate Senate confirmed postitions can be filled.
Tagged Cabinet, Presidential Appointments, White House staff
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What Comes Next?
We are entering uncharted territory in the U.S. Presidential election. Moscow Mitch is technically correct that the President has the right to avail himself of all legal remedies related to challenging the election results. But that’s not saying much. Technically, I have the right to file an election contest in my state challenging the results of several issues that were on the ballot last Tuesday. But I have no valid legal claims (or at least no evidence supporting any of those claim), and I would be facing sanctions for filing a frivolous case if I tried. Apparently, the president of the United States is exempt from the rules requiring a good faith basis for filing a case.
The closest that we have been to this type of obstruction was 2000 in Florida. Of course, in 2000, the election came down to one state, and that state was close enough to trigger an automatic recount. And where things went off the rails was that the parties could not agree on the proper way to conduct that recount. As a result, it is debatable whether there ever was a proper recount in Florida.
At least until Trump surrenders, there are two different lines by which things will progress. The first involves the Presidential Transition Act. Under the provisions of that act, there is a transition process which includes office space, the ability to employ staff, and access to government materials for the president-elect and vice-president elect. The key part of the act for the current situation is the triggering language which relies upon the determination of the Administrator of the General Services Administration. Under that language, those rights trigger upon the determination of the Administrator of the “apparent successful candidate” in the election. The big problem with the act is that it does not define how the Administrator determines who is the “apparent successful candidate.” And, in the past, this provision has not been an issue. In the first fourteen elections held under the Act, the identity of the apparent successful candidate has been clear within forty-eight hours of the election in thirteen elections. The only exception, as noted above, was 2000 in which it was clear that there was no apparent winner until Florida could complete its recount. If, as appears to be the case, President Trump has made clear that the Administrator of the GSA should not recognize apparent President-elect Biden as the apparent President-elect, then this dispute may require a petition for writ of mandamus. (A writ of mandamus compels an official to comply with a ministerial duty.) The big issue in such a case would be the proper standard for the exercise of the duty and whether that standard is clear enough to give rise to a ministerial duty in this case. Of course, the risk is that a court might decline to issue the writ because the law lacks any precise standard. The Biden Transition Team will have to balance off the risk of a bad result in a case against the reality that President Trump and the Administrator of the GSA seem intent on ignoring both the language and the spirit of the Presidential Transition Act.
Also posted in 2020 General Election, Electoral College
Tagged Canvass, Certifcate of Ascertainment, Certificate of Votes, Certification, Presidential Transition Act
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Launching tonight before the DNC
Also posted in 2020 Convention, 2020DNC
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Biden to give acceptance speech in Delaware
Well, hopefully they give Milwaukee the convention in 2024. Word is that only Wisconsin Dems will be in Milwaukee in 2 weeks.
Meanwhile, after giving up on both Jacksonville and Charlotte, Trump has, of course, floated giving his acceptance speech from the White House, which, of course, is totally improper, and likely illegal.
Also posted in 2020 Convention, DNC, Milwaukee
Tagged 2012 Democratic National Convention, 2020 Democratic Convention
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The VP Pick is?
According to the latest news, future president Joe Biden will be announcing his VP pick during the upcoming week. (At the latest, it would be the following week with the virtual convention scheduled to start on August 17.) As I noted two months ago, there are two things that go on behind the scenes which make guessing the name a fool’s errand — skeletons in the closet and personal compatibility. Simply put, even if we knew what Joe Biden wanted in a candidate, we would not know what the vetting of the potential candidate revealed and among the three or four candidates who meet the wish list of qualities and survive vetting we would not know which one will “click” with Vice-President Biden. But the third factor — political considerations — is something that we can talk about.
There are three aspects to political considerations: 1) the status quo (what the current state of play is in the race); 2) a guess about November (regardless of where things are now, what states will be in play in November); and 3) what are your goals for the next four years (how will the pick help your administration). On the third consideration, it is always possible to pick a running mate that you will keep mostly on the sidelines (see Dan Quayle), but most recent presidents have wanted somebody who would be able to handle some of the heavy lifting after the election.
The reality is that most VP picks have limited impact on the political equation. They may make a marginal difference in their home state, but, as long as they are generally qualified, they tend to disappear into the background over the campaign with people ultimately voting based on the presidential candidate. But the VP pick does say something about the judgment of the presidential campaign and their vision for their administration. So here are the basic questions that the campaign has to answer.
Also posted in 2020 Convention
Tagged 2020 Convention, Joe Biden, Vice-President
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