Tag Archives: Louisiana

Persuasion vs. Coercion

By tmess2 | Published March 24, 2024

Sometimes, the U.S. Supreme Court will schedule arguments to create a “theme” day.  In other words, the Court will schedule two cases which are technically unrelated but involve similar issues.  By hearing arguments in the two cases back-to-back, the Justices get two factually different pictures of conduct to point out some of the different ways that the issue might arise and, hopefully, can get some input through both cases on how a particular test for judging whether conduct crossed the line would play out.

This week, we had one of those theme days involving when governmental conduct indirectly infringes on the First Amendment.  The first case, Murthy, Surgeon General, vs. Missouri, arises from the efforts of the Surgeon General’s Office to talk with social media companies about posts containing medically harmful information related to COVID.  The nutty Attorney Generals from Louisiana and Missouri (which at that time was now Senator Eric Schmitt) filed a lawsuit in front of a handpicked judge in the Western District of Louisiana seeking an injunction barring all communications between federal officials and social media companies.  That “judge” granted that request.  The Fifth Circuit narrowed the injunction somewhat but left it substantially intact.   The other case, National Rifle Association vs. Vullo, involves a state financial services regulator trying to persuade regulated entities (banks and insurance companies) that they should stop doing business with the NRA.

What seems to be clear from the arguments in these two cases is that the Supreme Court is likely to make a distinction between persuasion and coercion.  In asking questions, several justices fell back on their own executive branch experience.  In traditional media, it is not unusual for reporters to call government officials asking for comments on a potential story.  In some cases, the story is one that, for a variety of reasons, the government official might prefer that the story not get published (or at least that certain details not run).  Sometimes those reasons are good reasons like in a murder investigation somebody might have leaked a key detail from the crime scene to a reporter which the police were intending to use as a “false confession check” (on the theory that only the killer would know that detail so any nut coming in to take credit for something they did not do would get that detail wrong).  But those reasons might not be strong enough for the government to seek a court order preventing publication.  So the government will try to convince the news media that it would be best if that information was not included in the story.  In making this request, the government might offer a “comp” like an exclusive interview with the police chief on some other topic.  It seems like, in the Murthy case, the Supreme Court is likely to slap the lower court and the state AGs hard for what is really a legally meritless argument.  There is really nothing here suggesting that these claims involve anything beyond routine attempts to persuade media to go with the official story.  And the First Amendment does not prohibit the government from trying to convince publishers to do the right thing. Continue Reading...

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November 2023 Elections

By tmess2 | Published November 4, 2023

In the U.S., in something that would be a surprise to the Franers, the presidential election has become the “main” election.  Turnout is always highest for the presidential election.  But that is not the only only election, and other elections can be even more important.  To save money, most states have their statewide elections coincide with federal elections (either the presidential election or the mid-term election).  But a handful of states have taken a different approach and hold their elections in odd-numbered years.  In addition, many states (while holding the elections for state offices at the same time as federal election in even-numbered years) hold local elections in the odd-numbered years.  And most states, even if November in odd-numbered years is not a “regular” election date keep it available as a potential election date for special elections and propositions.   This year, the November election will feature several big races.

At the state-wide office level, Louisiana, Mississippi, and Kentucky hold their elections for governor in the year immediately proceeding the presidential election.  Louisiana is a little different because it holds a “jungle primary” which is actually an open general election (i.e. no party primaries) with a runoff if nobody gets 50%.  This “primary” election was several weeks ago, and the Republicans picked up the governor’s office in Louisiana.  Given that Louisiana is a deep red state, this pickup was not too surprising as it takes the right Democrat to have a chance at winning and the incumbent Democrat was term limited.  The new governor is a right wing extremist, and we will probably be hearing a lot of nonsense out of the Pelican State for the next eight years.

But the races for Governor in Kentucky and Mississippi will be on Tuesday.  (At least the initial vote will be on Tuesday as Mississippi has a runoff provision if nobody gets to 50%.)  The governor in Kentucky is a Democrat and the governor in Mississippi is a Republican.  Both are favored to be reelected but the challengers in both states have chances at pulling an upset.  In Kentucky, the challengers big advantage is that he is a Republican.  But the Republican candidate has been a controversial figure as Attorney General, and the Democratic incumbent is popular which might be just enough to hold onto the office.  In Mississippi, the Governor has gotten entangled in some scandals and the challenger happens to be a member of a famous family even if that fame was over 50 years ago.  But Mississippi is still a deep red state.  In short, the most likely outcome is that there will be no changes, but it is also possible that either or both states could flip. 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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The Midterms — Preview (Part 3)

By tmess2 | Published November 2, 2022

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. Continue Reading...

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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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Why Congress has authority over Federal Elections

By tmess2 | Published March 20, 2021

As Republicans in swing states seem to be dedicated to winning elections by keeping Democrats from voting rather than persuading people to vote Republicans, Democrats in Congress are pushing the “For the People Act.”  Some of the provisions in this Act will prevent states from suppressing the vote in federal elections.  The House version has already passed and it seems that Senate version may be the bill that forces a showdown over the future of the filibuster.

One of the critiques that the conservative media establishment has made of this bill is that it involves a takeover of elections by Congress.  This critique, however, ignores the plain language of the Constitution.  Congress has full authority over elections to Congress.  Specifically, Article I, Section 4 permits the states to make laws about congressional elections but it expressly grants authority to Congress to “at any time by law make or alter such regulations” as the states have enacted.  However, Congress has, for the most part, opted against fully using its authority because it hasn’t felt the need to do so.

In explaining the need for this power, the authors of The Federalist Papers noted that, without this Congressional power, state governments would be able to frustrate the federal government by simply failing to hold elections.  And we are currently seeing, in real time, an example of what state control over elections can mean for Congress. Continue Reading...

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Election Night Preview — Part 3 (9 PM to 10 PM EST)

By tmess2 | Published October 29, 2020

As we noted in the previous two posts, a key part of the night will be how fast votes are counted and, in particular, what share of early and mail-in votes are released on election night and how many mail-in votes are potentially still in the mail and eligible to be counted.   There is also the issue of how long the lines were — especially in urban precincts — which could delay the count of votes cast on election day.  At this point in time, we should have projections from Kentucky and Indiana and the bluer and redder states from the 7 PM EST hour.  The question during this hour is whether we start getting projections from some of the swingier states with 7 PM closing times like Florida and Georgia have been called, and, if so, in which direction.

During this hour, nine states will close across the entire state and the remainder of the polls will close in Kansas, Michigan, South Dakota, and Texas.  South Dakota is unlikely to be close for any race, and the majority of Kansas and Texas close at 8 PM  EST.  What to look for in Michigan, Texas, and Kansas is addressed in Part Two.  Besides these partial closures, we have full closures in Arizona, Colorado, Louisiana, Minnesota, Nebraska, New Mexico, and Wyoming.

Louisiana is a weird state in that there are no party primaries.  Everybody runs on the general election ballot, but it takes a majority to be elected.  While none of the races are expected to flip, there is always the chance that the sheer number of candidates on the ballot could result in a run-off.  Of course, some of these run-offs will feature two Republicans (or, in the one district that the Democrats hold, two Democrats).  Wyoming also features no close contests and should be an early call across the board. Continue Reading...

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Louisiana Elections

By tmess2 | Published October 13, 2019

The off-year general elections kicked off yesterday with the “jungle primary” in Louisiana.  Louisiana’s jungle primary is similar to, but not quite the same as, the “top two” primaries that California and Washington use.  Like the top two primary, a jungle primary is “semi-partisan.”  By semi-partisan, I mean that, like a non-partisan election, all candidates run in the same election regardless of party but, unlike the typical non-partisan election, candidates are identified by their designated party.  Thus, you could have three Democrats, four Republicans, a Libertarian, a Green, and an independent on the ballot.  A jungle primary differs from a top two primary in that a jungle primary is actually a general election with the possibility of a run-off rather than a true primary.  In other words, in a true top two primary, the top two candidates advance to the general election even if one of the candidates gets a majority of the vote in the primary.  In a jungle primary, if one candidate gets a majority of the vote, that candidate is elected.

Thanks, in part, to the scandals surrounding former Senator David Vitter, Louisiana has a Democratic governor.  And Governor Edwards has done a decent job of threading the needle in a red state.  (Of course, threading the needle in a red state means conceding certain issues that you can’t win in order to win on some issues even though such concessions may aggravate those who believe in purity and attack any person who deviates as a DINO.)  Heading into yesterday’s election, the two questions was whether Governor Edwards could reach 50% and which Republican would take second (a more traditional Republican legislator or a self-funding Trumpish candidate).  With the unofficial results in, Governor Edwards fell just short of 50% getting 47% of he vote, and Eddie Risponse (the self-funding candidate) eked out second place by a 27% to 24% margin.  So there will be a run-off for governor in mid-November.  The real issue for the run-off is how much the national parties will put into the race.  For Risponse to win, he needs to absolutely unify those who voted for the three Republican candidates (the third Republican got less than one percent of the vote).  While the Republicans would like to win this race given how red Louisiana is, it will have little impact going forward.  After the first round of voting, the Republicans are guaranteed to win at least 26 of the state senate races (out of 39) and at least 63 of the 105 state house races.  And, even if Democrats can get enough seats in the state house to block a veto override, there is very little chance that there will be any significant impact on congressional district lines in 2021 given the geography of Louisiana and the Voting Rights Act.

It would probably benefit the Democrats if the Republicans did put money into Louisiana.  There are two other governor’s races in November — Kentucky and Mississippi.  While both states are red, the Democrats do have chances in both.  Mississippi may be a step too far given Mississippi’s Jim Crow era law that requires a candidate to win not only the state-wide popular vote but also win the popular vote in the majority of the state house districts.  So even if the Democrat manages to win the popular vote, the election would probably go to the state legislature barring a landslide win.  In both states, it is unlikely that Democrats will win the state legislatures and, in any case, it is hard seeing how the congressional district lines in either state could be substantially altered in a way that would create a significant chance of electing a second Democrat to congress in either state (although in a wave year, there is the possibility of that happening in Kentucky) as the least Republican district currently held by Republicans in both states is more Republican than the sole Democratic district is Democrat.  In other words, there are not enough extra Democrats in the Democratic district to swing a single Republican seats even if the two districts adjoined. Continue Reading...

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Update on Missouri’s Anti-choice laws

By tmess2 | Published July 14, 2019

With so-many Republican-controlled states passing laws designed to make abortion illegal, it’s going to be hard over the next several years to track what is happening with each of these laws as they potentially make their way to the Supreme Court.  (And the moderate conservatives are going to try to avoid this issue as long as they can.)  But I can, at least, track what is happening at the local level.

Missouri passed one of these laws this year — House Bill 126,

First, some brief background on Missouri’s legislative process.  Missouri’ legislature meets in an annual session that runs from early January until mid-May (technically, the session ends at the end of May, but all work on legislation must end by mid-May with the last two weeks for the Speaker/President Pro Tempore to sign the official copies of the bills that pass).   The Governor then has until Mid-July to sign or veto the bills (with an earlier deadline for bills passed early in the session).  The Missouri Constitution generally treats an unsigned bill as if the Governor had signed it.  (In other words, the Governor can’t block a bill by leaving it unsigned.)  Generally speaking, new laws take effect on August 28, but — by a  two-thirds vote in both Houses — the legislature can agree that there is an “emergency” for having it take effect at a different time. Continue Reading...

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2018 Mid-Term Election Preview — The South

By tmess2 | Published October 26, 2018

The South is probably the region in which there are the fewest competitive races in the country.  The extreme gerrymandering in these states means that outside of Texas, competitive House races are practically non-existent.

Starting with Alabama, while the governor’s mansion and seven U.S. House seats are on the ballot, none of these races currently look close.  This should not be a surprise to anybody.  While Doug Jones was winning the U.S. Senate seat in a close race last year, he only carried one of the Alabama’s seven congressional districts.  With Republican incumbents running in the six districts that Roy Moore carried and none of them a known bigoted pervert, Democrats are not expected to win any of these seats.  Despite the corruption that led to the prior Republican governor resigning, and Kay Ivey taking over last year, the expectation is that Kay Ivey will hold the seat by a comfortable margin.

In Mississippi, the Republicans hold a 3-1 advantage in U.S. House seats now and there is no reason to expect that to change after the election.  There are two Senate races on the ballot.  In the regular election, Republican Roger Wicker should be re-elected.  The interest race is the special election.  Like some other states, Mississippi holds a “jungle primary” (really a general election with a potential run-off) in which all candidates  from all parties run against each other.  Barring a major surprise, this race is headed to a run-off.  And, while Mike Espy is likely to make the run-off, he is unlikely to get his preferred opponent.  There is always a chance that in a lower turnout run-off that Mike Espy might defy expectations and win this seat, but — if this seat becomes important in light of the other results on election day — the money that would pour into Mississippi would make that difficult. Continue Reading...

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