Tag Archives: Georgia

The Independent State Legislature Theory, Election Law, and the Trump Crimes

By tmess2 | Published August 13, 2023

Recently, a federal grand jury in the District of Columbia returned an indictment charging the Orange Menance with crimes related to his attempted coup after the 2020 election.  It is expected that within a week or two a state grand jury in Fulton County, Georgia will add state charges related to the efforts of dictator-wannabe Donald Trump to convince Georgia election authorities to alter the results of the election in that state.

Much of the crimes committed by Donald Trump and his band of incompetent coconspirators were based on a flawed version of the independent state legislature theory and a misunderstanding of election mechanics.

First, the independent state legislature theory.  The independent state legislature theory is based on two clauses in the U.S. Constitution.  One of the clauses is found in Article I and applies to the election of members of Congress.  The other clauses is found in Article II and deals with the selection of presidential electors. 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 2024 Primary Process

By tmess2 | Published February 12, 2023

The advantage of being the party in power is that you can make changes to your rules about your presidential nomination process without worrying about which potential candidate will benefit.  Barring the unlikely event that President Biden does not seek the nomination, he will be the Democratic nominee regardless of the rules.  So these changes will not impact who will win the nomination in 2024, and 2028 is way too far away for anybody to guess who will be running in 2028 much less who benefits from the changes.

First, as always, the nomination process is a battle between state laws and national rules.  And, under the First Amendment, as interpreted by the U.S. Supreme Court, the national party rules for choosing the national presidential candidate prevails over state law.  Of course, while the states are unable to bind the national party, the states do set the rules for who appears on their general election ballots.  As of now, no state laws designate anybody other than the national nominees as the presidential candidate of that party (and no state party has refused to certify their national candidate).

Second, the two parties have different rules.  Both sets of rules involve potential penalties for states that violate the rules.  In the past, the two parties had similar rules on timing of primaries.  But this time, thanks to the Democrat’s changes to the list of states that can go before the first Tuesday in March, the list of potential February contests is not the same for the two parties.  And each party has potential penalties for states that violate their rules. Continue Reading...

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Georgia Runoff

By tmess2 | Published December 4, 2022

The last election of 2022 will conclude on Tuesday with the runoff election for U.S. Senator in Georgia.    While there are still some races that will go to recounts, all of the statewide and congressional races seem to be outside the margin at which a recount could make a difference.  (There are three races with margins between 500 and 600 votes — Arizona Attorney General, California Thirteenth District, and Colorado Third District.  In the Minnestoa Senate recount in 2008, the net swing from the original results to the recount results was 450 votes with an additional 87 votes gained in the election contest.  The closest of the three races going to recount is 511.   While other recounts have resulted in bigger swings, they were in races with bigger margins and Minnesota remains the largest swing that changed the results of a race.

The significance of the Senate race is not quite as big as it was in 2021 due to the Republicans apparently taking the House (but the Republican’s inability to reach a consensus on the next Speaker will be the subject of a future post) and the fact that the Democrats already have 50 seats.  But the result still matters for five key reasons.

First, the additional seat will alter the composition of committees.  With a 50-50 Senate, the committees are evenly divided.  While the rules currently allow a bill or nomination to proceed to the Senate floor on a tie vote, a 51-49 Senate would result in the Democrats having a majority on the committees. Continue Reading...

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The Midterms — Preview (Part 1)

By tmess2 | Published October 29, 2022

We are into the home stretch of the campaign.  This election comes down to those who want to protect women’s rights, LGBQT rights, our democracy, the middle class, and the safety of our streets on one side against those who want to undermine the concept of free and fair elections and impose an authoritarian theocracy on the other side.  The midterm elections are more like parliamentary elections in other countries.  There is no national race and winning is about the results of multiple state and local races.

As in 2020, there is expected to be a large number of votes by mail.  Some states have changed their laws to allow counting of mail-in ballots to start earlier, but some still require the process of verifying and counting mail-in ballots to begin on election day.  So there will be some states in which the Republican candidate will take an early lead based on the in-person votes, but the Democrat candidate will close that gap (and potentially take the lead) as the mail-in votes are counted.  On the other hand, in states that announce mail-in and early voting results first, the opposite will occur.

These previews will go in the order of poll closing times.  In states that are in two time zones, some states will release results as polls close.  Others will hold off on releasing results until all polls close.  If I know that a state holds off until all polls close, I will put the state in the time when the last polls close.  Otherwise, I will put the state in when the majority of the polls close.  I will list the time by Central Standard Time as that is my time zone.  For ease of conversion, CST is UTC +8 (i.e. it is 8 p.m. UTC when it is noon CST), Atlantic ST +2 (2 p.m AtST for noon CST), Eastern ST +1 (1 p.m. EST for noon CST),  Mountain ST -1 (MST 11:00 a.m. for noon CST), Pacific ST -2 (PST 10 a.m. for noon CST), Alaska ST -3 (9 a.m. AkSt for noon CST) and Hawaiian ST -4 (8:00 a.m. HST for noon CST). Continue Reading...

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The Fall Campaign

By tmess2 | Published September 4, 2022

Traditionally, Labor Day Weekend was seen as the start of the Fall campaign (at least by the media).  If that was ever true, it no longer is.  With cable and websites like Facebook and Youtube, there are a lot of relatively inexpensive way to get advertisements out during July and August.  If a campaign waits unti September to begin its ad campaign, the other side has already defined the race.

But, by this point in the cycle, we are down to the last handful of primaries, and the national committees and big PACS are already looking to decide where they are going to be spending the big bucks in late September and early October.  (As the change in the mechanism for advertising has obliterated Labor Day as the start of the fall campaign, the change in voting habits (with a significant percentage casting early votes or mail-in ballots) has also altered when the big final push begins.  While, in a close race, last minute news and ads can make a difference, it is just as important to get as many votes locked in as early as possible so that the last-minute spending can be focused on a tiny number of votes.

But that is the inside baseball stuff of campaigns.  The purpose of this post is to set the stage for the next eight weeks.  For the past two years, Democrats have had the frustration of a very narrow margin in the House of Representatives and a dead-even Senate.  Because Nancy Pelosi may be one of the all-time great Speakers, Democrats have been mostly able to pass things in the House.  The Senate, however, has been very, very difficult.  The filibuster rules has limited the Democrats to passing anything significant via the reconciliation process.  Even the reconciliation process requires keeping the entire Democratic caucus together which has proven difficult as a single member can insist on changes to any proposal.  And the  lack of a majority has also prevented any changes to the filibuster rule (again due to the ability a single Democrat to veto any proposed change). 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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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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Redistricting 2021 — The Numbers

By tmess2 | Published May 1, 2021

On Monday, four days ahead of its latest target date and almost four months behind the statutory date, the Census Bureau released the national and state-level results from the Census including the apportionment numbers that determine how many representatives each get.  As can be expected, there are multiple different tables summarizing the data in different ways for us number geeks.

The bottom line table shows the apportionment population (both those living in the state and those residing overseas — like military personnel — who call that state home), the number of representatives that each state is getting, and the change in representation.   We will get back to the change in a minute, but the big level number is that the apportionment population is slightly over 331 million.  As such, the average size (mean) of each congressional district is just under 761 thousand.  Alaska, Vermont, and Wyoming have fewer people than the average congressional district.  While the apportionment formula does not work for calculating the population needed for the first representative, even Wyoming has enough population to be entitled to three-quarters of a representative.

If, D.C. and Puerto Rico were states, Puerto Rico would be just ahead of Utah (which has four representatives) and just behind Connecticut (which has five representatives) and D.C. would be between Vermont and Alaska.  Given that Puerto Rico is only slightly larger than Utah (which was not close to getting a fifth representative and far enough behind Connecticut, Puerto Rico would be due for four representatives.  If  both were states, the five states that would lose a representative would have been Oregon, Colorado, and Montana (all of which gained a seat), California (which lost a seat), and Minnesota (which barely avoided losing a seat).  The chart of priority values that allows us to consider the impact of adding Puerto Rico and D.C. also shows that Minnesota barely held onto its last seat and New York barely lost its seat.  Apparently, given the formula, Minnesota would have lost that seat if it had 24 fewer people, and New York would have kept its seat if it had 89 more people.  (The disparity in numbers is caused by the fact that the two states have different number of seats. Continue Reading...

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2022 Elections — A First Glance

By tmess2 | Published January 30, 2021

The 2020 elections left both the House and the Senate closely divided.  And two years is a long time in politics.  But experience has taught politicians two, somewhat contradictory, things that will impact what can get done during the next two years.

The first, especially for the House of Representatives, is that the President’s party typically loses seats.  But the reason for this normal rule is that a new President has typically helped members of his party to flip seats.  As such, this might be less true for 2022 than in the past.  In 2020, the Democrats only won three new seats, and two were the results of North Carolina having to fix its extreme gerrymander.  And only a handful of Democratic incumbents won close races.  And the rule is less consistent for the Senate, in large part because the Senators up for election are not the ones who ran with the President in the most recent election but the ones who ran with the prior president six years earlier.  In other words, the President’s party tends to be more vulnerable in the Senate in the midterms of the second term than in the midterms of the first term.  But the likelihood that the President’s party will lose seats is an incentive to do as much as possible during the first two years.

The second is that one cause of the swing may be overreach — that voters are trying to check a President who is going further than the voters actually wanted.  This theory assumes that there are enough swing voters who really want centrist policies and that they switch sides frequently to keep either party from passing more “extreme” policies.  Polls do not really support this theory and there is an argument that, at least part of the mid-term problem, could be the failure to follow through on all of the promises leading to less enthusiasm with the base.  But this theory is a reason for taking things slowly and focusing on immediate necessities first and putting the “wish list” on hold until after the mid-terms. Continue Reading...

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