Monthly Archives: June 2021

Redistricting — Washington

By tmess2 | Published June 29, 2021

Like New Jersey, Washington uses a bipartisan commission to draw its lines.  Unlike New Jersey, the rules for Washington provide that, to the extent possible, the lines should respect geographical boundaries and the boundaries of political subdivisions.  Additionally, the lines are required to be fair and promote competitive districts.

And in a pattern that we have seen in other states, the districts in the major metropolitan areas now have excess voters and the more rural districts are now short voters.  And in Washington, that could hurt the Republicans.  The three districts currently held by Republicans (Third District in southwest Washington, Fourth District in central Washington, and Fifth District in eastern Washington) are a combined 50,000 people short.  The Sixth District in northwestern Washington is another 32,000 people short.  Meanwhile, the most Democratic district in the state (Seventh District — Seattle) has around 40,000 excess population and the First District (north central Washington) and Eighth District (eastern King County and central Washington) have a combined 25,000 excess population.  The only district that is close to being a majority minority district is the Ninth District (part of Seattle and its eastern suburbs).

There are some maneuvers that could reduce the number of split counties.  For example, King County is large enough to contain two whole districts with some left over.  Thus, I moved the part of the Seventh District in Snomish County to the Second District.  And I exchanged some precincts in Snomish County from the First District to the Second District while giving the part of the Second District in Whatcom County to the First District.  Likewise, I gave all of the Tenth District precincts in Mason County to the Sixth (which also has to expand into Thurston County and additional Thurston County precincts to the Third District.  To bring the Fifth up to quota, I gave all of the precincts in Walla Walla County to the Fifth District along with the Eastern half of Okanogan County.  That, in turn, required the Fourth District to expand westward in Whatcom County.  An argument can be made for rearranging the Fourth and Fifth Districts to give the southeastern part of the state to the Fourth District and leaving the Fifth District to the northeastern part of the state. Continue Reading...

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The Supreme Court and the War on the New Deal

By tmess2 | Published June 27, 2021

Back when I was in law school, the fringier aspects of conservative legal thought were laying the ground work for attacking several key doctrines of the New Deal.  Now those fringier elements are at the core of the conservative theory, and we are seeing the fruits of those efforts.  This week, there were several key decisions by the Supreme Court in cases dealing with the “Administrative State” and labor unions.

Prior to the New Deal, the Supreme Court had stood in the way of attempts empower executive branch agencies.  By the 1940s, the Supreme Court had made several key decisions that allowed independent agencies and executive branch departments to operate.  These decisions included:  1) limiting the scope of the non-delegation doctrine (the doctrine that Congress could not delegate the power to make laws to administrative agencies); 2) deference to the decisions of executive branch agencies; 3) the  existence of independent agencies (agencies whose heads could only be removed for cause); and 4) quasi-judicial administrative hearings in which “administrative law judges” reviewed the claims of parties with their decisions reviewed by courts rather than political appointees.  In recent years, we have seen cases calling into question all of these doctrines.  This week, we got decisions in two cases involving two of these issues.

Up first is Collins.  This case, in which Justice Alito wrote the majority opinion, is the latest involving the independence of executive branch agency heads.  For certain agencies, Congress has attempted to protect the agencies from political interference by giving the agency head a set term with the president only being able to remove that appointee for cause.  This case involves some of the reforms enacted in response to the mortgage crisis.  The specific statute created the Federal Housing Finance Agency as part of the rescue of two private companies — the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Association (Freddie Mac) — to oversee those two corporations.  The agency is managed by a single director who is removable for cause.  Part of this director’s authority is to act as a receiver for these two organizations.   In that capacity, the director negotiated changes to the terms of the loan that the U.S. Treasury made to Freddie Mac and Fannie Mae.  Because these two organizations are technically private organization (although chartered by the federal government to serve specific roles in the housing market), they have private investors who sued to challenge the renegotiated agreement.  Following up on prior decisions, the Supreme Court continued its war on limitations on the power of the president to remove an  agency head.  At some point, this war will have serious policy impact when a president chooses to remove an agency head for following the law and replaces that agency head with somebody who will not follow the law. Continue Reading...

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Redistricting — New Jersey

By tmess2 | Published June 26, 2021

In the Garden State, redistricting is done by a bipartisan commission.  If the commission fails to pass a plan, it then falls to the courts.  As such, the current map is the likely starting point for any new map.

Currently, the Democrats hold ten of the twelve seats, but the map actually creates six Democratic districts, one Republican district, and five toss-up districts.  At the present time, the overpopulated part of the state is the three districts that contain Newark and the suburbs of New York
City (the Eighth District, the Ninth District, and the Tenth District).  the other district that is significantly overpopulated is the Twelfth District in the western part of the state around Princeton.  All four of these districts are solidly Democratic.  The two most underpopulated parts of the state are the two districts in the southern part of the state — the First (the southwest part of the state around Camden) and the Second (the rest of the south New Jersey).  Given the population pattern in the state, all of the lines in the state are going to shift toward New York City.

As in other urbanized states, the Voting Rights Act will be some consideration.  There are five minority-majority districts (Sixth, Eight, Ninth, Tenth, and Twelfth) with Hispanics being the largest group in two districts (the Eight — in which they are the majority — and the Ninth) and African Americans being a majority in one district (the Tenth). Continue Reading...

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Supreme Court — The Final Week (Updated)

By tmess2 | Published June 26, 2021

This past week was a busy week with the justices issuing eleven opinions which means that there are only five cases left to be decided — two of which are extremely significant.

As discussed in last week’s post, the Supreme Court tries to keep assignments to each justice balanced both within each month and as the term progresses.  That gives us a clue as to which justice could have an opinion.  But within each month, once you have identified the candidates, it is pure speculation as to which justice seems most likely to have the opinion.  And as we have already seen several times this term, trying to guess which justice will get assigned the opinion from the potential candidate will often be wrong.  For example, last week, I guessed that Chief Justice Roberts was most likely to have Brnovich (the voting rights case) from February.  While the Chief Justice did have a February opinion, it ended up being Arthex — a patent case involving the Appointments clause.  Similarly, many had the Chief Justice writing the Obamacare case from November with the Justice Alito writing Fulton, but Justice Breyer got the Obamacare case and the Chief Justice got Fulton.  

The big question is how many opinions each justice will get.   With fifty-four opinions and nine justices, each justice in theory should have six opinions.  But Justice Barrett started one month late.  Currently, Justice Thomas has seven opinions which means that, at least one justice should have five opinions).  So far, Justice Barrett has been one opinion behind the pace for the entire term (one through November, three through February).  As such it seems like Justice Barrett will end up with five opinions for the term with Justice Thomas having the extra opinion and the remaining justices having six opinions each.  The problem with that theory is that Justice Breyer had the extra opinion in October/November and Justice Thomas did not pick up the extra opinion until April.  So does Justice Breyer still have one opinion left (in which case he is due for one in the December-February period and some other justice besides Justice Barrett only has five opinions)? Or did that extra opinion migrate over the course of the term (in which case any justice with only five opinions for the term could be the justice who had the extra opinion at the end of February)? Continue Reading...

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Supreme Court — Two Weeks to Go

By tmess2 | Published June 20, 2021

As I noted in my post on Thursday’s decisions, we are nearing the end of the active part of the Supreme Court term.  (Technically, the term starts in October, but the Supreme Court is in recess over the summer barring any emergency case.)  While the Supreme Court does not list opinion days far in advance, they have fifteen argued cases left to decide.  Based on past practice, we are likely looking at four to six opinion days over the next two weeks to wrap everything up — likely Monday of both weeks and Thursday of this week with the other dates depending on when things are ready.

The easy part of this post is that the Supreme Court has now wrapped up October and November.  And we have most of the cases from December and January.    But this year’s docket offers several complications.  First, while the Supreme Court tries to keep each month’s opinion assignments balanced (and the term as a whole balanced), we have multiple months with fewer than nine opinions.  Second, we have several unsigned opinions from December and two opinions that covered multiple argued cases.  Third, Justice Barrett did not start until the November docket.  Based on what we know, there should be six opinions per justice (54 signed opinions for the term.)  As Justice Thomas has seven opinions, it looks like Justice Barrett will only have five opinions.

October and November had 18 cases which should have meant two opinions per justice which held true for every justice except Justice Breyer who had three opinions and Justice Barrett had one opinion which seems to reflect that Justice Breyer picked up the extra October opinion that would have gone to Justice Barrett.  (Justice Breyer may end up with seven opinions and somebody may have lost an opinion in light of Justice Thomas’s seven opinions or the court might just have altered who got the extra case as the term went along.) Continue Reading...

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Redistricting — Georgia

By tmess2 | Published June 19, 2021

The Republicans control redistricting in Georgia, but the current map gives them several challenges.  Several suburban districts that leaned Republican in 2011 are now swing districts held by Democrats.  Additionally, the Republican have to be careful to avoid violating the Voting Rights Act.  And, as in other states, there has been a population shift from the rural areas of the state to the metropolitan part of the state, specifically Atlanta and its suburbs.  Based on the 2019 Census estimates, the First District (southeastern Georgia) is around 5,000 people short; the Second District (southwest Georgia) is over 70,000 people short; the Third District (western Georgia) is around 9,000 people short; the Eighth District (southern Georgia) is over 35,000 people short; the Twelfth District (eastern-southeastern Georgia) is around 20,000 people short; and the Fourteenth District (northwestern Georgia) is around 25,000 people short.  Of these districts, one (Second) is safe Democrat and the others are safe to solid Republican.  Having said that, the biggest overages are the Seventh District (northeastern Atlanta suburbs), the Fifth District (Atlanta), and the Eleventh District (northwestern suburbs) — one toss-up district (Seventh), one solid Democratic district (Fifth), and one solid Republican District (Eleventh).

Given that the safest Republican precincts are in districts that are short residents, and the most Democratic precincts are in the overpopulated parts of the other districts, Republicans are going to have to look carefully at how they move the lines.  It is possible, however, to accomplish their main goals which are to regain the Sixth District (currently D+1) and the Seventh District (currently R+2).  On paper this goal can be achieved.  To accomplish this goal, Republicans will have to have adjoining districts trade precincts.  A good example is Gwinnett County where you could some Democratic precincts move to the Tenth District and some Republican precincts move to the Seventh.  For the Sixth District, the changes are much more blunt with the Eleventh District moving into Marietta in Cobb County to make up for the precincts that it will need to shed to the Thirteenth District (to allow the Thirteenth to shed precincts to the Third District).  The real problem, for the Republicans are how much they can trust the numbers.  Atlanta is a prime example of the suburbs changing quickly.  And using anything other than the 2020 results may make these districts look redder than they actually are.  Minimalist changes — combined with the current attempts at voter suppression in Georgia — may allow the Republicans to temporarily win back the Sixth District and the Seventh District, but the current trends will make it hard for the Republicans to keep them.

There are certainly some changes to my first round of maps that the Republicans could make which would involve adding precincts to districts that are already over in population and taking precincts from districts that are under in population (with other precincts moved around to compensate).  The most likely option for this would be for the Ninth District to give up precincts in northern Forsyth County to the Sixth District and the Seventh District.  The Ninth District would then get some additional precincts from the Tenth which would get precincts from the Fourth District and Seventh District in Gwinnett County (the Seventh would get some precincts from the Tenth in Gwinnett County).  Finally, the Fourth District would get precincts from the Sixth District in DeKalb County.  With some aggressive precinct selection, my final maps showed the Sixth and Seventh Districts as approximately R+7. Continue Reading...

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Supreme Court — Thursday Blockbusters

By tmess2 | Published June 18, 2021

Normally, at this time of the year, I am posting a look at the big cases to be decided in the last two to three weeks.  I got a little delayed this year by the redistricting posts, and  The Supreme Court beat me to the punch by releasing two of the biggest opinions of the term  — Texas vs. California and Fulton vs. Philadelphia.  

Texas is the latest, and hopefully last, round of the Republicans attempts to use the courts to accomplish what they can’t do in Congress — repeal the Affordable Care Act.  The latest theory was that, by repealing the tax penalty that is part of the individual mandate, Congress effectively repealed the entire Affordable Care Act.

Understanding the issues in the case requires a brief detour into the back history of the case and some basic things that most lawyers learn in law school (but which the dissent kindly forgets).  Before the New Deal, there were a lot of doctrines that a conservative Supreme Court used to block progressive legislation.  And, as will be discussed in the post on the remaining cases, it is important to understand that many in the Federalist Society think that the “Old Court” got it right and oppose the changes that the Supreme Court made in the 1940s to those doctrines.  One of those changes was a much broader definition of the power of the federal government to regulate economic matters under the Commerce Clause.  And when the Affordable Care Act was enacted, most thought that the individual mandate was authorized by the Commerce Clause.  And when the Republicans first challenged the individual mandate, the defense of the mandate relied, in part, on its significance in the overall scheme.  Unfortunately for the future of the Affordable Care Act, when the Supreme Court first analyzed the Affordable Care Act, the Chief Justice sided with the conservatives on the Commerce Clause issue but was willing to find that it was authorized as a tax.  When Republicans managed to repeal the tax in 2017, conservatives saw an opportunity to use that repeal to take a second run at the individual mandate and the Affordable Care Act. Continue Reading...

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Redistricting — Missouri

By tmess2 | Published June 14, 2021

The 2011 redistricting in Missouri gave us some very weird maps.  In the Fifth District, we have the “dead lizard” district in which the Republican suburbs of Kansas City in Eastern Jackson County were carved out and moved in with the Sixth District (northern Missouri) which is mostly on the other side of the Missouri River.  Meanwhile, some of the more Democratic suburbs of Kansas City (and the part of Kansas City north of the Missouri River) became the core of the Fifth District as well as what were some Democratic leaning counties east of Kansas City along the Missouri River that had historically been part of the Fourth District (western Missouri).  In the Third District (eastern Missouri), you have the “claw” surrounding the St. Louis area on three sides.  The Second District (suburban St. Louis) took in some of the more conservative suburbs of St. Louis in St. Charles County.  The 2011 maps were the product of a General Assembly in which the Republicans were just shy of a supermajority and needed to get a small number of Democratic votes to overcome the Democratic governor’s veto.

In this next round of redistricting, not a lot has changed in terms of population.  The First District (St. Louis and its inner suburbs) has continued to shrink relative to the rest of the state and will need about 35,000 people.  The Eighth District (southeastern Missouri) will need around 7,000 people.  Meanwhile, the Seventh District (southwestern Missouri including Springfield and Branson) will need to shed around 14,000 people.  There are a lot of split precincts in the current map, so the exact surpluses of the remaining districts (and the exact shortfall in the Eighth) is hard to determine, but everything will need to be shifted somewhat.

What has changed is that there is now a Republican governor.  While the Republicans do not have to make any concessions to Democrats to pass a bill, there will be some restraints caused by the need to comply with the Voting Rights Act.  In other words, the Republicans are unable to carve up the two Democratic districts to get a clean 8-0 sweep of the state.  But they can try to draw lines that improve the chances of keeping a 6-2 majority. Continue Reading...

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Redistricting — Nevada

By tmess2 | Published June 13, 2021

Over the past decade, Nevada has been a slightly bluish swing state.  Most of the Democratic base is in Clark County (Las Vegas) with an outpost in Washoe County (Reno)  Of course, Clark County represents the majority of the state’s population.  As a result, while state-wide elections are close, Democrats actually have the majority in the state legislature.  And that means that this time around, Democrats will control the redistricting.

Before discussing the possible new lines, it is important to note one potential issue with the numbers that I am using.  Besides the normal caution that, until the 2020 census numbers are released, we are relying on the 2019 population estimates, Nevada has a complicating factor.  In almost every state, prisoners are counted as living in the prison for redistricting purposes.  This gives a little bump to the rural counties that tend to want to have prisons and hurts the urban areas that are the source of many of the prisoners (as crime is associated with population density).   In Nevada, we are talking an approximate prison population of around 10,000 with around half being in rural parts of Clark County and the other half being in other parts oft the state.

While it looks like the population growth was mostly in Clark County, because of the population movement within Clark County, the First District (Las Vegas) actually is projected to have the lowest population of the four districts — needing around 50-51,000 more people.  On the other hand the Third District (southern Clark County) is around 68,000 overpopulated.  Since the Third District is a toss-up district, the goal will be to move some Republicans from the Third to the First. Continue Reading...

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Redistricting — Utah

By tmess2 | Published June 12, 2021

Utah, like Nebraska and Kansas, is a state in which Republicans technically control the redistricting process, but geography gives the Democrats some hopes.  Where in Nebraska it was the Omaha area and in Kansas it was the Kansas City suburbs, the problem in Utah is Salt Lake City and Salt Lake County.  As in other states, the 2019 estimates from the Census bureau have the more urban Fourth District (central Utah) with too many people and the remaining districts (the First in the north, the Second in the west, and the Third in the east) with too few people.  The three less urban districts are roughly equal (with the Second having around 2,500 more people than the First and the Third), but the Fourth may need to shed over 30,000 people.

In Utah, there is an advisory commission which draws proposed maps, but the maps ultimately are drawn by the legislature.  The maps are supposed to keep communities of interest intact and minimize county splits, but Utah Republicans have already shown a willingness to blow past those state law requirements in the 2010 maps.  After 2010, the maps split Salt Lake County (large enough to have a single intact district) between three separate districts with Salt Lake City itself actually being in the Second District.  These maps carefully divide the Democratic parts of Salt Lake County and Utah County between the three districts.  In other words, the map in Utah is a perfect example of cracking.

If the map makers were trying to be proportional, it is possible to draw a district that combines the Democratic part of Salt Lake County with the Democratic part of neighboring Summit County to create a toss-up district that slightly favors the Democrats.  In short, geography gives Democrats a chance at having one toss-up district in Utah, but the Republicans are unlikely to  draw fair lines. Continue Reading...

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