Voter Fraud and the Missouri Senate Race

Earlier this month, the law on voting where you reside appears to have caught an unlikely person in an election law violation — Missouri’s Attorney General — and presumptive Republican Senate candidate — Josh Hawley.  To understand what happened, a little local background is in order.

The main campus of the University of Missouri is in Columbia — thirty miles away from the state capitol in Jefferson City.  Before becoming Attorney General, Hawley was a law professor at the University of Missouri.  Aside from his full time job, like some law professors, Hawley offered his assistance on cases that he thought deserved his assistance.  One of those cases involved aiding the religious owners of Hobby Lobby in their effort to deny birth control coverage to their female employees.  This case gave Hawley connections to ultra-conservative donors in Washington, and also was a selling point as he went around Missouri speaking to local Republicans in rural counties.   These two advantages allowed him to pull an upset last year in the Republican primary over the “establishment” conservative candidate in the Republican primary, and the Trump landslide helped him win the general election.

After the election is where the fun begins.  First, among the changes that flowed from the 2016 election, the new Republican governor appointed the state representative who represented part of Columbia and the surrounding area to an administration positions.  Before becoming Attorney General,  Hawley and his family lived in this district.   The Governor set the special election to fill this seat for this August (one of the available election dates under state law). Continue Reading...

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Trump’s War

Earlier this week, we heard President Trump speak on the War in Afghanistan.  Unfortunately, this speech which was supposed to lay out his vision of the path forward was like many Trump speeches — mostly vague rhetoric without details.  And the handful of specific details were divorced from reality.

As we have come to expect from Trump, when faced with a  difficult issue, he has to blame his predecessors for not solving it.  While it is easy to blame the G.W. Bush Administration for botching the original intervention, Trump, of course, focused his wrath on President Obama.  One can debate whether the “tough love” of giving the Afghanistan government a deadline for getting its act together is better or worse than saying that we will transition out when the Afghanistan government gets its act together.  And despite Trump’s claim that we will not engage in “nation building,” it is difficult to see how we get the right “conditions” in Afghanistan without doing some form of nation building.

However, the first real problem in the speech was Trump’s refusal — in the name of not giving any information to the enemy — to say what our plans are in Afghanistan.  In particular, his refusal to define our goals in Afghanistan.  Saying that we will only withdraw once certain conditions are met is fine.  However, you need to define what those conditions are.  Of course, by not defining those conditions, Trump leaves the door open to the old Soviet approach of declaring victory at some point in the future even though we have actually failed to meet our goals — whatever they actually are. Continue Reading...

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The Path Forward

Looking at the Republican debacle over Health Care, I was constantly reminded of two things.

First, I keep on thinking of a classic Saturday Night Live skit from their third season portraying Richard Nixon as a vampire-like figure who keeps coming back.  Like Nixon in that skit, just when we think that the Republican efforts at gutting health care are done, they find a way to resurrect the bill.  Since the Senate never actually voted on the final bill (which was put back on the calendar after the substitute amendment failed), it could be brought back to the floor at any time.

Second, I am reminded of Representative Pelosi’s comments while the Affordable Care Act was pending that we would not know what was in the bill until it finally passed.  While Republicans made a lot of hay out of this comment, she was expressing the reality of the legislative process.  Until the vote on the final version of the bill, it is possible that legislators will add new provisions and delete others.  Normally, however, under ordinary process, there is a core of the bill that stays relatively the same.  With this bill, the Republicans have treated the bill as a placeholder.  The message in the House and the Senate has been just pass this bill whatever its flaws and we can decide on the real terms of the bill later.  The concept that the conference committee would write an entire bill from scratch as opposed to merely reconciling the disagreements between the two houses is mindboggling. Continue Reading...

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Healthcare: What’s Next?

As you’ve certainly heard, the Senate tax-cut-for-the-wealthy-at-the-expense-of-the-sick has met it’s death. Yes, Mitch will hold a “Repeal Only” bill next week, but that’s not going anywhere either. You may wonder why that vote is being held, and the answer is rather simple: Donald Trump is intellectually impaired. The White House has put a lot of pressure on Mitch to hold said vote because first, while #NotMyCheeto cannot name all 52 GOP senators, he holds out some hope that he can corral people to vote for it, and second, because he views the vote along the lines of a “loyalty” vote. He wants that opportunity to take names on who is “fir ‘im, and agin ‘im”. Also, Mitch would rather be a loser than a quitter.

So what’s left? Basically the option that cost John Boehner the speakership: bipartisanship. The other option would be for #NotMyCheeto to cease the insurance company payments, and dismantle the individual mandate via Executive Order, which would throw 32 million people off the roles of Exchange-based insurance as well as Medicaid as soon as the insurance companies could get new rate levels through the state insurance commissioners. While Trumpkin couldn’t care less, since his criminal family isn’t affected, and there’s no impact on Russians, the House and Senate DO care because the full house and a third of the Senate is up for re-election next year, and voters never forget who took something from them.

At the White House yesterday, Trumpkin said: “We’re not going to own it. I’m not going to own it. I can tell you the Republicans are not going to own it. We’ll let Obamacare fail, and then the Democrats are going to come to us.” Idiot. Continue Reading...

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The Fourth of July and Ancient Greece and Rome

One of my personal traditions for the 4th of July is watching 1776.  For those who are unfamiliar with this movie, it is based on the 1970s musical of the same name and starts the recently deceased Ken Howard as Thomas Jefferson.  In part because of the era when this musical was written, it takes a more open-eyed view of the events of the Spring of 1776 leading up to the Declaration of Independence — including the flaws of the founding fathers, the difficulty in getting the resolution on independence passed, and how slavery almost prevented independence.

Aside from its willingness to confront the history mostly head on — it acknowledges the existence of a faction in the Continental Congress that was more interested in compromise than independence but glosses over the large loyalist contingent in the country as a whole — another interesting thing about the musical numbers is that the last musical number — sung by John Adams — includes some allusions to the Roman Republic.  At the time of the framing, Rome and Athens were seen as models of ancient democracies and what could go wrong with them.  This admiration can be seen in Washington identifying himself with Cincinnatus — an early Roman statesman who was called to serve Rome in a time of crisis — receiving emergency powers — who resigned to return to civilian life when the crisis had passed and the three authors of The Federalist Papers using the pseudonym Publius.  Putting aside the fact that, in reality, both Rome and Athens were much less democratic than the United Kingdom, a major interest of the framers (discussed at length in their writings) was why Athenian democracy and Roman democracy ultimately fell and what that meant for the new country that they were building.   In both cases, the problem was that the small country became an empire.

In the case of Athens, Athens sought to use its preeminent position after the Persian Wars for its own benefit at the expense of its supposed allies (who quickly became client states) and its neighbors.  The result of this “Athens First” policy was to encourage revolts in the subject states and an anti-Athens alliance among its neighbors leading to constant warfare until another regional power crushed all of the Greek city-states.  In the end, putting Athens First did not make Athens Great Again. Continue Reading...

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The Supreme Court and Immigration

The Statue of Liberty stands as a symbol that this nation was built on immigration.  This past term (and apparently this upcoming term) immigration was a significant part of the Supreme Court docket.  Of the eight cases involving immigration or the border, the Supreme Court issued decisions in five, sent one back to the lower courts (in light of one of the four decisions), and set two for re-argument in the fall (as both were argued before Justice Gorsuch joined the bench, the implication is that there was a 4-4 split or that the majority lacked a consensus on the legal theory for the result).  In addition, the Supreme Court is going to hear argument on the travel ban.

Going in chronological order, at the end of May, the Supreme Court issued a decision on the crimes that trigger deportation — narrowly interpreting the statute to limit the state offenses that trigger deportation.  The decision involved charges of sexual abuse against minors with the court defining minor as under 16 and requiring that the state offense be limited to minors under sixteen.  On the cases that were decided, as discussed in an earlier post, the Supreme Court struck down the law governing birth citizenship when a child is born abroad to parents with split citizenship (i.e. one is a U.S. citizen and the other is not) because the law discriminated based on the gender of the U.S. citizen.

In the next to last week of the term, the Supreme Court issued three more decisions.  The first case — involving a challenge to immigrants arrested after 9/11 — technically was not about immigration but about the right to sue the government and government official for civil rights violations.  While there is a federal statute authorizing individuals to sue state officials, there is no such statute for civil rights violations by federal officials.  While the Supreme Court has authorized such suits in a limited number of circumstances, the Supreme Court has been reluctant to expand that right.  The Supreme Court found that the claim in the most recent case were not similar to the previously recognized claims and decided that it was up to Congress to decide whether to enact a statute authorizing such claims.  That decision also led to the decision to send the second civil rights case (involving a cross-border shooting) back to the lower court to review whether it was the type of claim that could be brought.  (The lower court had originally decided the case on the issue of whether it was a civil rights violation.  In sending the case back, the Supreme Court raised doubts about some of that reasoning.) Continue Reading...

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Election Update

May and June were significant months for elections, both in the United States and Europe.  While the news media tends to overhype some elections and ignore others, there are some conclusions that can be drawn from those elections.

Starting with the United States, the big news has been a series of special elections — focusing mostly on three Congressional seats held by the Republicans.  Neither party can be particularly happy with the results at the Congressional level, but certain things need to be noted.

First, except when caused by death or sudden resignation due to scandal, most vacancies occur in what the parties consider to be “safe” seats.  With the exception of the upcoming special election in Utah, the special elections for the House are all the results of an executive of their own party “promoting” the member of Congress to an executive office.  In California, you have to go back to 2012 to see the last time that a Republican even ran in the 34th district.  The four Republican seats were solid wins for the Republican incumbents in 2016 with the closest margin being 16% in Montana.  All five of these districts were double-digit wins for their party’s candidate in 2012.  The only district that was arguably winnable by the “out” party was Georgia 6 and that is only if you looked solely at the 2016 presidential election.  By the partisan vote index, Georgia 6 is still R+8, meaning that the Democrats would need to get around 58% nationally to win that seat. Continue Reading...

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Free Speech Uber Alles

The late Supreme Court Justice Hugo Black was famous for a very literal interpretation of the First Amendment — that the language in the Amendment providing that “Congress shall make no law” meant that Congress should make no law.  While the current Supreme Court does not go quite as far as Justice Black, a consistent theme of the Roberts Court has been — with the occasional exception that proves the rule — a very broad interpretation of the First Amendment to strike down any law in which the government either directly (by banning it) or indirectly (by favoring other speech) regulates speech.  Simply put, if there is a free speech component to your case, the expectation has to be that the government will lose if the Supreme Court grants review and the only question is exactly how the justices will line-up in the decision.

This week saw the last two free speech opinions of the term (there is a remaining free exercise case that could incorporate some of the recent free speech cases into that sphere of law) — both issued on Monday.  In both cases, the ultimate decision was unanimous, but there was a liberal-conservative split in the reasoning.

The more “traditional” case was Packingham v. North Carolina.  This case involved a North Carolina statute that barred registered sex offenders from accessing commercial social networking website if juveniles could also join that site.  (Under the very broad definition used by North Carolina, this site might qualify.)  All eight justices (the case was heard in February before Justice Gorsuch joined the Court) agreed that the statute was overbroad and not narrowly tailored due to the sheer number of sites covered by the statute that were not primarily designed to facilitate the type of one-on-one real world interaction that the Court saw as the legitimate purpose behind the statute.  The main disagreement in the case — between Justice Kennedy writing for the “liberal” majority and Justice Alito writing for the three conservative justices — was how to characterize the internet.  The majority described the internet as the functional equivalent of public streets and parks.  (In free speech law, streets and parks are considered “public forums” and the government’s ability to regulate is very limited — some content-neutral “time, place, and manner” restrictions like requiring parade permits are allowed, but such restrictions are closely examined to determine that they are not being used to prevent speech.)  From a factual point of view, this analysis is partly accurate.  The internet itself is arguably like a street, but the individual websites are more like private homes and offices.  The dissent — borrowing from language in the majority about the need to be cautious in applying existing legal categories to the internet to avoid inhibiting the speed at which the internet is changing — thought that it was not necessary to categorize the internet as a public forum.  (Because both opinions recognize that preventing crime is a legitimate governmental interest potentially supporting restrictions on sex offenders, there are likely to be future cases considering whether other restrictions — whether imposed on sex offenders on a case-by-case basis or statutes that apply to certain categories of sex offenders across the board — are narrowly tailored.) Continue Reading...

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Supreme Court 2016-17-Two Weeks Left

One of the unwritten rules of the Supreme Court is that, come hell or high water, the justices will get all of the opinions issued before the July 4th weekend.  (In the past, some justices actually maintained a summer home outside of D.C. and those justices were very keen on getting out of D.C. as soon as possible.  Even today, justices will spend a good part of the summer elsewhere giving presentations and lectures for various schools and groups.)  That will make for a very packed last two weeks.  It’s not just that the number of remaining opinions is slightly high, but the number is high after a very light term.  For the past decade or so, the Supreme Court has heard between 70 and 86 cases per term.  This year, they have only heard 64 cases.  The last two weeks of the terms have seen the court issuing between 9 and 17 opinions.  This year, we still have 17 cases waiting for opinions.  (The pace of grants of argument for the upcoming term is also a little light with 19 cases granted so far which would only take the Supreme Court through November but there tends to be a decent number of cases granted during the last two weeks of the term when the Justices run out of time to postpone making the decision to grant or deny argument in a case.)

Given the large number of cases, it is more likely than not that there will be multiple opinion dates during these two weeks.  In theory, all of the opinions could be issued on one day in each week — the decision on which opinions are final and ready to issue is made at the weekly conference (June 15 and June 22).  But last second “non-substantive” edits that delays the Court’s printshop from having all of  the opinions printed and the sheer number of opinions tends to result in multiple opinion days during this point of the term.  (In addition to the two regular conferences, there is always a wrap-up conference after the last opinion issues.  In the past, the wrap-up conference typically featured cases that had been “held” because they involved an issue raised in one of the argued cases.  Once the argued case has resolved the issue, the held cases can be sent back to the lower court — if necessary — to apply the ruling in the argued case.  In recent years, the practice of taking at discussing cases at two or more conferences before granting argument means that the wrap-up conference involves a final decision on several pending applications.)

As noted in past years, the Supreme Court has customs regarding the assignment of opinions that makes it somewhat possible to predict what Justice is most likely to have which opinion by this point of the term.  Of course, the number of outstanding opinions does make it a little bit harder this year.  The general rule of thumb is that the Supreme Court tries to keep the workload balanced.  With eight justices for the first six months of the term, that usually means that: 1) in any month with seven or fewer cases, no justice gets two opinions, and some justices do not have any opinions; 2) in any month with eight cases, each justice gets one opinion; and 3) in any month with nine or more cases, each justice gets at least one opinion, but no justice gets more than two opinions.  Additionally, this practice means that a justice who was skipped one month is likely to get two opinions in a following month and a justice who had two opinions in one month is likely to get skipped in a following month.  At this point, we do not know whether Justice Gorsuch will be getting one or two opinions from April (we already have one opinion from Justice Gorsuch).  If Justice Gorsuch only has one opinion, seven of the other justices will eight opinions and one will have seven opinions.  If Justice Gorsuch has two opinions, six of the other justices will have eight opinions and two will have seven opinions.  The two justices most likely to have only seven opinions would be the two junior justices — Justice Sotomayor and Justice Kagan — but there is always the possibility that the Chief might decide to count a complicated case as a two-fer to spread the burden of opinion-writing around. Continue Reading...

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Birth Citizenship — Supreme Court sends issue back to Congress

There are two ways that a person can be a natural born U.S. citizen.  First, under the Fourteenth Amendment, they can be born in the U.S.  Second, they can be born to U.S. citizens.  For this second category, Congress has established some conditions that must be met related to how long the U.S. citizen parent has resided in the U.S.

Looking at this second categories, there are eight possible combinations of three crucial factors — is the mother a U.S. citizen; is the father a U.S. citizen; and are the parents married.  (Actually, there are six, if neither parent is a U.S. citizen, the child can’t inherit citizenship from her parents.)  Having six different combinations in which at least one parent is a U.S. citizen, Congress has enacted different rules based on which parent is a U.S. citizen.  In particular, an unwed U.S. citizen mother has to spend less time in the U.S. than an unwed citizen father or married couples in which one member is a U.S. citizen.  Earlier this week, the Supreme Court issued an opinion on the constitutionality of these rules.

The case involved a man facing deportation.  That man’s father was a U.S. citizen but had left the U.S. twenty days before meeting the statutory requirements for conveying citizenship to his children.  As such, even though the father had returned to the U.S. with his family (including the person seeking citizenship in this case), the man was not entitled to automatic citizenship and — because he had not sought naturalization — could be deported. Continue Reading...

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