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Tag Archives: North Carolina
The Mostly Dead Independent State Legislature Theory
Two clauses of the Constitution — one for Congressional elections and one for the selection of presidential electors — give the primary responsibility for adopting the rules governing elections to state legislatures. The problem with these two clauses is that the U.S. Constitution does not create state legislatures. Instead, state legislatures are created by the states themselves. Not too surprisingly, different states structure their legislatures differently — one state (Nebraska) only has a unicameral legislature, many states allow the voters to initiate and approve legislation, each state has a different number of legislative districts, and some states have unique rules on what laws can be vetoed by governors and how many votes it takes to override a veto.
Traditionally, the Supreme Court has resolved this problem by holding that the election clauses simply refer to the legislative power of the state. Each state is free to create its own rules about the composition of the state legislature, how many votes it takes to pass legislation, and which body gets to make certain election-related decisions (including delegating the redistricting power to independent commissions). There has been a theory floating for years on the conservative side that these clauses establish a state legislative power that is “independent” of state law and state constitutions. While this theory keeps reemerging, this theory has repeatedly failed to be adopted by the U.S. Supreme Court.
In the last round of redistricting, several state court (including North Carolina, Ohio, and New York) invalidated redistricing maps based on state constitutional provisions related to elections. Initially, the North Carolina courts invalidated that’s states congressional redistricting plans. North Carolina Republicans asked for the Supreme Court to review that decision based on the independent state legislature theory arguing that the U.S. Constitution barred state courts from interfering with the state legislature’s power under the U.S. Constitution to set election laws related to federal elections even if those laws violated the state constitution.
Posted in Elections, Judicial
Also tagged Independent State Legislature, redistricting, Supreme Court
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Voting Rights Act — A Glimmer of Hope
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.
Posted in Civil Rights, Elections, House of Representatives, Identity Politics, Judicial
Also tagged Alabama, Florida, Georgia, Louisiana, redistricting, Supreme Court, Voting Rights Act
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The Midterms — Preview (Part 1)
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).
Posted in Elections
Also tagged Florida, Georgia, Indiana, Kentucky, Ohio, South Carolina, Vermont, Virginia, West Virginia
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The Fall Campaign
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).
Posted in Elections, General Election Forecast
Also tagged Arizona, Donald Trump, Florida, Georgia, Herschel Walker, House of Representatives, J.D. Vance, Kevin McCarthy, Lindsay Graham, Mitch McConnell, Nancy Pelosi, Nevada, New Hampshire, Ohio, Pennsylvania, Raphael Warnock, Ron DeSantis, Ron Jonhson, Senate, Wisconsin
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The Most Dangerous Branch — End of Term Reflections
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.
Posted in Climate Change, Elections, Judicial
Also tagged 2020 Redistricting, Alabama, Chevron deference, Environmental Protection Agency, Establishment Clause, Free Exercise Clause, Free Speech Clause, Independent State Legislature doctrine, Justice Ginsburg, Justice Gorsuch, Justice Jackson, Louisiana, major questions doctrlne, Mitch McConnell, Voting Rights Act
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Supreme Court Update
The last week was both busy and quiet on the Supreme Court front. The Supreme Court handed down eleven decisions reducing the number of pending cases to eighteen with two weeks to go. Only two of the cases were medium big, and the really big cases will be decided in the last two weeks. With the Juneteenth holiday, the Supreme Court will be releasing opinions tomorrow (Tuesday) and Thursday. For the last week of June, Monday will be an opinion day. Depending on how many opinions are left after June 27, there will probably be additional opinions on June 29 and, maybe, June 30. Expect Dodds and New York State Rifle to come the week of June 27.
This week, the two big decisions were in American Hospital Association v. Becerra and Arizona v. City and County of San Francisco. Both of these are bigger for what they did not say than for what they actually held.
American Hospital Association involves the rules for hospital reimbursements for Medicare. For years, conservatives have been challenging a judge-made rule (Chevron deference) which dictates that courts should uphold reasonable rules implemented by administrative agencies based on a reasonable interpretation of statutes. So far, the U.S. Supreme Court has not officially overruled Chevron. Instead, they are whittling it away through decisions like American Hospital Association. The courts are doing this by narrowing the field of what is a reasonable interpretation of statutes.
Posted in Judicial
Also tagged Chevron deference, Election clauses, Independent State Legislature, Pennsylvania, Supreme Court
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Redistricting 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.
Posted in Elections, House of Representatives
Also tagged Alabama, Equal Protection Clause, Georgia, Ohio, Redisticting, Texas, Voting Rights Act
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Redistricting — North Carolina
North Carolina could very well be ground zero of litigation over partisan gerrymanders in this cycle. In North Carolina, bills changing district lines are not subject to veto by the Governor. When they had to redraw district lines in 2016, the state legislature was brutally honest that their main criteria was to maximize the number of Republican districts — drawing a 10-3 map only because it was impossible to draw an 11-2 map. The North Carolina courts struck down that map. The legislature then drew a map that resulted in an 8-5 delegation that survived review. In short, what we will see happening in North Carolina this year is likely to be the Republicans in the legislature drawing the most aggressive map that they think can survive a court challenge followed by the state courts deciding if the map was an improper partisan gerrymander.
Given that the current lines are what the Republicans drew after the previous lines were struck down in 2019, they probably represent a base map for what the new map will look like. (The software that I use to guesstimate maps does not have these new lines as an overlay. So I had to eyeball the lines from the map. There are a lot of split counties so the below combines districts with split counties together rather than trying to guess exactly how much each district is over or under the new average district — i.e. the target number. In addition, as noted in previous posts, as the official county, city, and precinct populations have not been released by the Census Bureau yet, this software uses the last population estimate from the Census Bureau which will be somewhat off.)
Over in the eastern part of the state, the First District (lean Democrat) and the Third District (solid Republican) are a combined 5,000-10,000 over the target number for a fourteen-district map. In other words, there might be a minor adjustment of where the lines are in Pitt County (currently split between the two) and some of Vance County (currently split between the First and the Fourth) will get bumped into the Fourth (which will then need to shed some population to the south and west).
Posted in Elections, House of Representatives
Also tagged 2012 Democratic National Convention, 2020 Census, redistricting
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Redistricting 2021 — The Numbers
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.
Posted in House of Representatives
Also tagged 2020 Census, apportionment, California, Colorado, Florida, Georgia, Illinois, Kansas, Maine, Michigan, Missouri, Montana, Nebraska, New Jersey, New York, Ohio, Oregon, Pennsylvania, redistricting, Texas, Utah, Virginia, Washington, West Virginia
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