Tag Archives: Alabama

Ballot Access 2024

By tmess2 | Published April 21, 2024

In a completely shocking turn of events, some states (primarily those with a Republican Secretary of State) seem to be about to deny the Democratic ticket its place on the ballot.  The issue is that every state has a deadline for established parties to certify their presidential ticket to the state election authority.  Ohio is the earliest with a deadline ninety days before the election.  (Depending on the year, that deadline falls between August 4 and August 10.)  By contrast, Alaska’s deadline is forty-eight days before the election (with the deadline falling between September 15 and September 21).

The early deadlines are problematic because they ignore the informal traditions about the scheduling of the conventions and the real world.  The big real world issue which impacts the scheduling of the conventions is the Summer Olympics.  Barring cancellation or postponement (like happened in 2020), the Summer Olympics are always in the Summer of the presidential election year.  Simply put, the political parties want their convention to dominate the news and for all eyeballs to be glued to their convention.  (Of course, as the current nomination system has drained conventions of almost all of the drama, getting people to watch the convention is harder, but the parties do not want to compete with the Summer Olympics for viewers.)  And, over the years, the Olympics have expanded.  This year, the Paris Olympics runs from Wednesday, July 24 through Sunday August 11.  In practical terms, that means that the last potential week for a July convention is the week of July 15.  And, if you want some news coverage during the week leading into the convention, the first potential week for an August convention is the week of August 19.  Going back to 1992, the dates of the Summer Olympics has been:  1992 Olympics — July 25-August 9; 1996 Olympics — July 19-August 4; 2000 Olympics (held in Southern Hemisphere) — September 15-October 1; 2004 Olympics — August 13-29; 2008 — August 8-24; 2012 — July 27-August 12; 2016 — August 5-21; 2020 Olympics (original scheduled dates) — July 24 through August 9.   The other big world impact is that most states now use primaries to award delegates with the last primaries taking place in early June.  That makes it almost impossible for a major party to move its convention before July.

Turning to the informal traditions, the party out of power normally goes first.  The last time that the party in power went first was 1932.  (Prior to World War 2, the Republicans normally went first, but in 1956 (the first time that Republicans were in power after World War 2), the Republicans opted to go after the Democrats, and the tradition of flipping sequence based on which party held the White House has been followed ever since.  The dates for the party out of power since 1992 have been:  1992 — July 13-16 (Democrats/ending before Summer Olympics); 1996 — August 12-15 (Republicans/ starting 8 days after Summer Olympics); 2000 — July 31-August 3 (Republican/Summer Olympics not an issue); 2004 — July 26-29 (Democrats/ending before Summer Olympics); 2008 — August 25-28 (Democrats/starting 1 day after Summer Olympics); 2012 — August 27-30 (Republicans/starting 15 days after the Summer Olympics); 2016 — July 18-21 (Republicans/ending before Summer Olympics); 2020 — July 13-16 (originally scheduled)/August 17-20 (actual dates) (Democrats/ original schedule before Summer Olympics).  In other words, in the previous eight election cycles, the party out of power has held their convention “too late” to comply with the Ohio statute four times out of eight (three times if you use the original date).  The dates for the party in power since 1992 have been: 1992 — August 17-20 (Republicans/starting 8 days after Summer Olympics); 1996 — August 26-29 (Democrats/2 weeks after Republicans); 2000 — August 14-17 (Democrats/2 weeks after Republicans/Summer Olympics not an issue); 2004 — August 30-September 2 (Republicans/1 day after Summer Olympics); 2008 — September 1-4 (Republicans/week after Democrats); 2012 — September 4-6 (Democrats/week after Republicans); 2016 — July 25-28/week after Republicans/before Summer Olympics); 2020 — August 24-27 (Republicans/originally 15 days after Summer Olympics).  In short, the only time in the past 32 years in which the party in power held their convention before Ohio’s deadline was 2016 when the Olympics did not start until August. Continue Reading...

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Super Tuesday Week

By tmess2 | Published March 2, 2024

Tuesday is Super Tuesday — the first Tuesday of the primary cycle in which any state can hold a primary contest.  As most states use state-run primaries, there will be a large number of states on Tuesday.

But, before Super Tuesday, several states that are using party-run contests will be holding Republican contests as the “window” for the Republicans opened yesterday.  (The “window” for Democrats opens on Tuesday.)  As discussed last week, one of the contests today is the second half of the Republican’s Michigan two-step with the Republican state convention which will be allocating the “district” level delegates.  In addition to Michigan, today will see events in Missouri and Idaho.

The Missouri Republican rules are somewhat ambiguous.  It looks like they are doing a traditional caucus with a 15% threshold and an unspecified winner-take-all kicker at local option.  But rather than allocating delegates based on today’s vote (which is what the national rules appear to require), they are merely binding the delegates chosen today to vote the same preference at the district conventions (which should effectively have the same result).  Missouri is using a caucus because our current Secretary of State repeatedly lied and claimed that the state-run primary was nonbinding (when the rules of both party made the primary binding) and a repeal of the primary was slipped into an omnibus election bill which passed despite the unanimous opposition of Democratic legislature).  The Democrats will be holding a party-run primary in three weeks with a mail-in option. Continue Reading...

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Alabama IVF Decision

By tmess2 | Published February 25, 2024

In the past week, there has been a developing story out of Alabama.  The Alabama Supreme Court ruled that several the couples who had used an IVF clinic could bring a wrongful death action against the clinic.  That clinic kept unused embryos frozen in a “cryogenic nursery.”  There was an incident at that clinic involving an intruder which causes the embryos in question to thaw.

Despite the media attention paid to this story, it is really the story of the dog that didn’t bark.   While Alabama does not technically have a “life begins at conception” law, the state constitution does have a provision recognizing that, from conception, an embryo does have a right to life.  And for a long time, Alabama has recognized that its wrongful death law does permit a cause of action for the death of an embryo.  (The debate in the case revolved around which statutes applied.  There are other statutes which limit some causes of action to an embryo in the uterus, but the majority declined to find that those statutes limited the cause of action.)  In the absence of a statute making a distinction based on implantation, if there is a cause of action for the death of a fetus against a John Doe who gets into a car accident with a woman who is pregnant causing a miscarriage, there is no logical reason that there would not be a cause of action against a clinic which has expressly (by contract) taken on a duty to protect the embryo.

Now, if you did not recognize conception as the starting point of life or personhood, there might be a basis to distinguish between an unimplanted embryo and a fetus at a later stage of development.  (And as noted above, for some purposes Alabama does nto make that distinction.)  After all, a significant percentage of blastocytes (the technical term for the early stage of embryonic development) do not successfully implant in the uterus.  In fact, many birth control  methods are designed to prevent implantation.  Even after implantation, it is not unusual for there to be an early miscarriage before it is even possible to detect a pregnancy.   But once you define life and personhood as starting at conception, even an unimplanted embryo is a person with all of the rights that the law grants to a “person.” Continue Reading...

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Voting Rights Act — A Glimmer of Hope

By tmess2 | Published June 11, 2023

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. Continue Reading...

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Quick Hit — Redistricting and Voting Rights Act

By tmess2 | Published June 8, 2023

Today’s Supreme Court opinions included a 5-4 decision affirming a preliminary judgment invaidating the Alabama Congressional Districts under the Voting Rights Act.  We will have a more detailed analysis of the decision this weekend.  But the quick hit is that this decision will probably result in new lines in Alabama and Louisiana which will include a second African-American majority district in both states.

This decision partially offsets the impact of the weird, blatantly partisan, decision of the North Carolina Supreme Court to revert back to the original map after originally striking that map down, and New York might try to draw a new set of lines.  Thus, the state of play for the House is still up to further legislation action this fall.  But, today was a good day for a more representative House.

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The Most Dangerous Branch — End of Term Reflections

By tmess2 | Published July 3, 2022

In the Federalist Papers, the Judiciary was called the “Least Dangerous Branch.”  The thought was that the Supreme Court relied on the other branches to follow through on court orders.  However, in our legal system, court orders are usually obeyed.  And, between gerrymandering, filibusters, and the equality of the states in the Senate, it is very hard to get the types of majorities that allow real change in the “political” branches.  Courts, however, simply require a majority to act.  And the relentless campaign of the far right has left us with a Supreme Court that borders on being as political as any other branch of government.  That is not to say that every decision is political.  There are lots of legal issues that are not partisan in nature.  And there are some issues that split conservatives.  However, on this Court, when there is a clear partisan divide over an issue, the result is a foregone conclusion regardless of what the true facts and precedent dictate.    The last week of the term gave us three cases in which Senator Mitch McConnell’s abuse of Senate rules resulted in rulings that we would not have gotten in 2015.

The first case is Kennedy v. Bremerton School District.  What makes this case significant is that this case is ultimately about what version of the facts one chooses to belief.  The normal rule is that appellate courts take the facts as found by the lower courts or in the light most favorable to the lower court.  In this case, however, a major conflict between the two opinions is their characterization of the facts.  The majority sees the practice of the petitioner — a public high school coach kneeling on the football field at the end or the game — as a private act of worship.  The dissent (and the lower courts) saw the act as a public display by a government employee in the course of his employment.  The normal practice when the case is this fact-dependent and the facts are unclear is to “dismiss as improvidently granted.”  Instead, the majority picks and chooses the disputed evidence that supports the legal rules that it wishes to establish notwithstanding compelling evidence supporting a contrary reading of what happened.  In doing so, the Supreme Court announces that the Lemon test for the Establishment Clause has been discarded (as well as other tests for an Establishment Clause violation) and replaced by (wait for it) a historical analysis of what would have been considered an establishment of religion.  It should shock nobody that this approach means that very little will be a violation of the Establishment Clause.  With the Establishment Clause neutered, that just leaves the Free Exercise Clause and the Free Speech Clause.  Given the fact that the Supreme Court has greatly expanded the impact of these two clauses, the end result for the forces of protecting the rights of Christian Theocrats over the rights of everybody else is a foregone conclusion.

The second case Oklahoma v. Castro=Huerta.  This case involves criminal jurisdiction on tribal lands in Oklahoma.  Several years ago, in a 5-4 decision (with Justice Ginsburg) on the Supreme Court, Justice Gorsuch and the four liberal justices ruled that no treaty or act by Congress ever formally disestablished the native reservations in Eastern Oklahoma even as non-Natives bought the land on the reservation.  As such, the lands were still legally part of those reservations.  Under federal statute, crimes by natives against natives on reservations have to be tried in tribal court or federal court (depending on the offense).  The new case involved crimes against natives by non-natives.  With Justice Barrett instead of Justice Ginsburg, there were five votes against tribal authority and in favor of state authority.  As such, the majority — thanks to a rushed confirmation by Senator McConnell in the fall of 2020 — found that Oklahoma also had the authority to try such cases in state court.   Now, both this decision and the earlier decision are based on statutes.  In theory, Congress could fix the laws related to the relationship between tribal authority and state authority to fix the issues brought out by cases (or actually appropriate the money to hire enough prosecutors, public defenders, and judges to handle a large number of cases on tribal lands in Oklahoma), but the deadlock in Congress makes this highly unlikely. Continue Reading...

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The Supreme Court and Voting Rights

By tmess2 | Published February 13, 2022

Parties seeking to challenge a new law have to make a choice between filing a case in federal court (assuming that they have a federal constitutional claim) and filing in state court.  Unless you have a favorable state Supreme Court, the usual tendency is to file in federal court.  However, it is becoming very clear that, if you are challenging an illegal redistricting plan, you really have to file in state court as the U.S. Supreme Court will not be give any assistance to plaintiffs.

This week, the U.S. Supreme Court had what should have been a no-brainer.  When faced with a challenge to the Alabama district lines under Section 2 of the Voting Rights Act, the three-judge panel issued a lengthy order which included detailed analysis of the evidence and tracked the governing precedent under Section 2.  Under the existing law (and the plain language of Section 2), the Alabama maps were and are illegal.  Under the legal standards governing a stay (which takes into account the merits and the interests of the parties), there was no basis for a stay.  The Supreme Court should have denied the stay and summarily affirmed the judgment.

But that’s not what the Supreme Court did,   By a 5-4 vote, the Supreme Court issued the stay and put the case on the argument docket for the fall.  Because there is no requirement for opinions on stays, we only know the reasoning of some of the justices.  And what we do know gives a strong hint that the Voting Rights Act is effectively dead. Continue Reading...

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Redistricting 2022

By tmess2 | Published January 29, 2022

The legislative part of redistricting is almost complete.  Only nine states are still in the process of drafting the “first” set of maps.  (Tw of those nine states are my home state of Missouri and the neighboring state of Kansas.  In both states, the maps are through one house of the legislature and are under consideration in the second house.)  In three states (Connecticut, Pennsylvania, and Wisconsin), the first set of maps defaulted to the courts when the legislatures and the governors were unable to agree on the new maps.

But in the remaining states, the maps have been adopted.  And that means that the battle over the maps has moved to the courts.  At this point, I am aware of three states in which we have rulings about the new maps.  Two of them are no surprise, or, at least, not much of a surprise.  In Ohio, the Ohio Supreme Court found that the map passed by the Ohio legislature violated the Ohio Constitutions rules on redistricting which bars drawing a map which unduly favors one political party or unduly splits political subdivisions.  In North Carolina, the North Carolina Supreme Court has under review an initial decision upholding the maps drawn by the North Carolina legislature.  The North Carolina Supreme Court will hear arguments on February 2.  Right now, it looks more likely than not that the North Carolina Supreme Court will strike down the map in that state.

The surprise on the list might be Alabama.  Alabama was not on the list of states that we looked at last year.  The failure to do so caused us to miss a change in demography within the state.  For the last several cycles, there has been one minority-majority district in western Alabama (the Seventh District).  In previous decades, the consensus was that — even though approximately one-quarter of the state is African-American — the minority population was too dispersed to creeate a second district that would either be a minority-majority district or close enough to qualify as an influence district.   (Part of the theory of the case is that the new districts dilute the influence of African-Americans in violation of Section 2 of the Voting Rights Act or is a racial gerrymander in violation of the Equal Protection Clasue.)  After the last census, however, it appears that by placing Birmingham in one district (the Seventh District) and Montgomery in a separate district in the southern part of the state, you could get two minority-majority districts (or at least two districts that would qualify as influence districts).  For now, the panel of judges hearing the Voting Rights Act case has ordered that Alabama will not be allowed to use the new maps pending a final decision (and has given Alabama thirty days to submit replacement maps or the court will draw maps for this election cycle).  Alabama has asked the Supreme Court to put this ruling on hold, and the Supreme Court has asked the plaintiffs for a response by February 2. Continue Reading...

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Election Night Preview — Part 2 (8 PM to 9 PM EST)

By tmess2 | Published October 28, 2020

As noted in the previous post, by 8 p.m. Eastern Standard Time, we should have a significant amount of precincts being reported in the two earliest states (Kentucky and Indiana) and should be starting to get some counties reporting votes in Florida, Georgia, South Carolina, Virginia, and Vermont.  During this hour, the counts in those states should be increasing.  By 9 p.m., we should be seeing either some projection in those states or an indication that the states are too close too call.  We may also be getting an indication in some of those states of how many absentee votes might remain to be counted (which could determine whether it will be possible to make any projection in those states on election night).

While it would be nice if we could get calls in a state like Virginia early in this hour, the bigger question as the hour goes will be the types of swings that we are seeing in these states.   Virginia in 2016 was a leading indicator as we were just not getting strong results compared to 2012.  So as this hour goes along and the networks start looking at the maps of the state, the key thing to pay attention to is how the numbers are comparing to 2016.  Even if the networks aren’t comfortable in calling a state yet, if the results are showing that Trump is underperforming in red parts of a state (i.e. rural counties) and Biden is overperforming in the suburbs, then that is a good sign for the rest of the evening as Trump only one by the slimmest of margins in 2016 and any erosion in his support could prove fatal.

This hour has the most states close.  You have partial closures in Florida (the rest of the state closed an hour earlier), Kansas, Michigan, South Dakota, and Texas.  While a significant part of South Dakota will close an hour later, the polls close for most of the population in Kansas, Michigan, and Texas at 8 p.m. Eastern.  In addition to these states, polls for the entire state close at 8 p.m. Eastern in Alabama, Connecticut, Delaware, D.C., Illinois, Maine, Mississippi, Missouri, New Hampshire, New Jersey, Oklahoma, Pennsylvania, Rhode Island, and Tennessee. Continue Reading...

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Cut Time

By tmess2 | Published September 5, 2020

A political party serves two fundamental purposes.

First, people form and join political parties to advance policy.  (Of course, there are disagreements on the exact priorities or the specific details of policy proposals.)  In fact, one of the biggest mistakes that the Framers made was not anticipating that, once there were elections for federal offices, the groups in New Jersey that favored rural farmers over “urban” merchants would unite with similar groups in Georgia (and vice versa for the groups that favored merchants) rather than stay isolated in their own states.  Simply put, if you want a single-payer health care system, you are more likely to get it by forming a large group with other supporters of that type of proposal than working on your own.

Second, the way that political parties try to advance policy is by getting their candidates elected to office.  You can’t pass a single-payer system if the opponents of single-payer have the majority in Congress or control the White House.  And political parties win elections by finding good candidates and raising and spending money to support those candidates.   Especially in the year before the election, money tends to be spent on creating tools (like voter databases and helping state parties) that are available to all candidates that run on the party’s ticket.  And at this point in time, with the exception of the last handful of state primaries, the parties have their candidates. Continue Reading...

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