Once More Into the Chaos

By tmess2 | Published October 8, 2023

Your parent’s Republican Party is dead.  The center-right politicians that used to be the leaders of the Republican Party are now called RINOs by the forces that staged a hostile takeover of the party.  And like many hostile takeovers, what is left is simply a brand name that is a shell of what it used to be.  If the Republican Party was a business, consumers would simply gradually realize that its product and services had declined and would eventually switch to competitors.  While the workers and customers of that company would suffer during the death spiral, it would have limited impact on the rest of us.

Unfortunately, a political party is not a company, and the death spiral of a political party can have significant impact on everyone.  And we are seeing that play out  in real time in Washington.

Once again, we are facing the inability of the Republican Party to be able to unite behind a leader.  In a functioning party, the choice of a leader is an internal party decision, and, when the time arrives for the whole House to confirm the majority party’s leader, the members of that party support its chosen leader.  Because the modern Republican Party is not really a political party and is instead a disjointed collection of individual attention seekers vying to be the most outrageous, it is almost impossible to get 218 Republicans on the same page. Continue Reading...

Posted in House of Representatives | Tagged , , , , , | Comments Off on Once More Into the Chaos

Supreme Court Preview — October Term 2023 — Part 3

By tmess2 | Published September 24, 2023

In this last part of our Supreme Court preview, the topic shifts from the cases that will definitely be heard this year to the cases in the pipeline.  The U.S. Supreme Court receives around 5,000 petitions for review every year, but they only grant review in approximately 60 cases per year.  Now, some of those 5,000 petitions are clearly frivolous and have zero chance of being granted.  But, even eliminating the clearly delusional petitions, that translates into something like one petition out of seventy petitions being accepted for review.  So any discussion of what cases might get full review is very, very speculative.

Now, we know that some cases will technically be heard.  There is a very limited category of cases that have direct appeals to the U.S.  Supreme Court.  But that does not mean that the Supreme Court grants full merits briefing and argument in all of those cases.  Instead, the U.S. Supreme Court often simply issues a short opinion or order affirming the trial court decision based on the initial pleadings of the parties.  For example, we know that Alabama wants the Supreme Court to take another look at their redistricting case now that the three-judge panel has held that their second attempt at redistricting failed to remedy the previous violation.  The easy decision of the U.S. Supreme Court is to reject this effort, but they might choose to wade back into this area.

So what seems likely?  The first thing that is almost certainly the case is that the U.S. Supreme Court will take a good chunk of cases from the Fifth Circuit and the Ninth Circuit.  There are two reasons for this.  First, these circuits are just big.  The Ninth Circuit is both big geographically and in population (including the states of Arizona, California, Oregon, and Washington).  The Fifth is not as big geographically but it does include Texas.  Second, both courts are somewhat politically lopsided which has made them the “go to” circuits for people who are shopping for a friendly court for an ideological case.  So the Fifth Circuit is likely to issue opinions which are too conservative even for this bunch of justices, and the Ninth Circuit is likely to issue opinions which are too liberal for this Supreme Court. Continue Reading...

Posted in Judicial | Tagged , , , , | Comments Off on Supreme Court Preview — October Term 2023 — Part 3

Supreme Court Preview — October Term 2023 — Part 2

By tmess2 | Published September 17, 2023

Last week, we took a look at the cases that are set for argument in October and November.  This week, we look at the cases that have been accepted for argument, but have not yet been set for an argument date.  These cases will probably be heard in December or January.

The primary job of the Supreme Court (reflected in the criteria that it lists on its rules for what applicants need to demonstrate before the Supreme Court will accept review) is to assure that courts uniformly interpret and apply federal law.  As such, every case is important to some groups of people.  But the focus in these posts are on those cases which could have a political impact.

First on this list is Muldrow.  This case involves Title VII — the law barring discrimination based on race and gender in employment.  The issue in this case is “transfers.”  Basically, by transfer, we are talking about the reassignment of employees from one job to another job.  Generally, Title VII only applies to “adverse” actions.  As such, the issue is what type of damage/impact does the employee have to show.  At least the argument from the employer is that if the transfer is truly a lateral move with no impact on pay or promotion opportunity, then there is no discrimination.   Obviously, there are other things that impact what qualifies as a desirable job.  Here, the employer is a police department and the transfer is from a detective-type squad to a patrol squad.  Technically, the ranks are equal, but there are reasons why a detective squad is a preferred position.   Needless to say, this case could either indicate an approach to Title VII that would allow it to broadly apply to transfer decisions or an approach in which transfers to nominally equivalent positions will rarely implicate Title VII.  From a practical standpoint, there seems something wrong with an interpretation that would, for example, let an employer assign most women to a night shift and most men to a day shift on the theory that the positions are equivalent, but I would not put such a myopic view past some of the current justices. Continue Reading...

Posted in Civil Rights, Judicial | Tagged , , , , , | Comments Off on Supreme Court Preview — October Term 2023 — Part 2

Supreme Court Preview — October Term 2023 — Part 1

By tmess2 | Published September 10, 2023

We are three weeks away from the First Monday in October which means that the Supreme Court will soon be back in session.  Putting to the side the continued questions about the ethical failings of certain ultra-conservative justices (who unfortunately would never be convicted by the Senate even in the unlikely event that the more ethically-challenged Republican caucus in the House would actually allow articles of impeachment to pass), that means time to look ahead to the politically-significant cases on this year’s docket.

For a brief refresher, during its annual term, the U.S. Supreme Court sits in seven argument sessions.  Each of these argument sessions lasts for two weeks.  After five of these argument sessions, the U.S. Supreme Court takes a two-week break (with longer breaks over the holidays and after the January argument session).   Typically, for ease of convenience, the sessions are referred to as the October, November, December, January, February, March, and April sessions even though some sessions will begin in one month and conclude in another month (like the November session this year which will begin on October 30).  During the argument session, the Supreme Court hears oral arguments on Monday, Tuesday, and Wednesday.  If one of those days is a holiday, that day is skipped.  There is no firm rule (as the Supreme Court will make adjustments if the docket requires it), but a “full” docket will have two arguments in the morning on each day.  Subject to adjustment if a third party (usually the Solicitor General if a case involves a federal statute) is permitted to argue, the party that lost below gets thirty minutes to argue and answer questions followed by thirty minutes for the party that won below followed by a brief rebuttal argument by the party that lost below.

On the Friday before the argument session, the justices meet to review pending petitions for review and to finalize any opinions to be released the following week.  There are similar conferences on the Fridays on the weeks in which there are arguments at which the justices also discuss the arguments that were heard that week and take an initial vote on those cases which is used to assign a justice to write an opinion.  On the Mondays of argument week (and the Monday after the argument week), the Supreme Court releases on order list announcing the decision on pending petitions for review.   In the early part of the term, there might be a separate list announcing the cases accepted for review on Friday to give the parties additional time to start preparing their briefs (the written arguments on the case) as the time schedule gets rather tight for completing the briefs before the oral argument.  Because of those time limits on the written briefs, the January argument session is effectively the cut-off date for a case being heard during the term.  If review is granted after January, the case is held for the following term.  Thus, the cases that we are about to discuss are those that the Supreme Court granted review on between February and June.  (On rare occasions, as it did for one case this year, the Supreme Court may add a case during its summer recess, but the norm is that — other than emergency matters — the period between July 1 and October 1 is quiet.)  The cases that they will accept (some of which may be discussed in Part III of this preview) in the next several weeks will be argued in the second half of this term. Continue Reading...

Posted in Civil Rights, House of Representatives, Judicial | Tagged , , , , , , , , | Comments Off on Supreme Court Preview — October Term 2023 — Part 1

Candidate Trump — Felon Ballot Access Restrictions and the Fourteenth Amendment

By tmess2 | Published August 27, 2023

We are heading into uncharted waters.  A major political party has become a cult in thrall to a person who may not be eligible to run for president (or at least barred from the ballot in several states) who insists that he should be the nominee in 2024.  Add to that a martyr complex by the true believers who have taken over many state parties, and we are heading into potential chaos for the Fall of 2024.

Of course, one of the complexities is that the national election for president is when the electoral college meets and votes and sends those votes to Congress to be counted.  Up until that Wednesday in December, we have fifty-one elections for presidential electors and more elections for delegates to the nominating convention.  Each of the jurisdictions (states and territories) involved in these elections have different rules and procedures.

Having said that, there are several general things that are consistent from state to state.  First, for the general elections, the parties certify the name of their presidential and vice-presidential candidate in late August or early September.   Second, there is a state election authority which receives and processes the candidate paperwork for state and federal candidates.  For the most part, these officials rarely refuse candidate filings, but they are tasked with determining whether the filing to be on the ballot is complete and shows that the candidate is eligible to run under state law.  Third, decisions on whether a candidate qualifies to be on the ballot is subject to some form of judicial review.  But, assuming that the election authority finds that a candidate is eligible to run, the different states have different rules on who can challenge that determination.  In all, or almost every state, the opposing candidates have the right to bring such a case, but the rules as to who else has that right differs from state to state.  Fourth, if, for some reason, a party’s nominee has to be replaced on the ballot, it generally falls on the state party to name a replacement.  Fifth, for the presidential election, there is actually a ticket composed of the candidates for president, the vice-president, and the presidential electors.  It is the last two or three where the potential for chaos emerges. Continue Reading...

Posted in Donald Trump, Elections, Electoral College, Judicial, Uncategorized | Tagged , , , , | Comments Off on Candidate Trump — Felon Ballot Access Restrictions and the Fourteenth Amendment

GOP chooses Houston for 2028 Convention

By Matt | Published August 25, 2023

This is the first time ever a convention site has been chosen prior to the earlier convention even being held:

The Republican Party will host its 2028 convention in Houston, party officials decided in a private meeting on Friday.

… Continue Reading...

Posted in 2028 Convention, GOP, Houston | Tagged | Comments Off on GOP chooses Houston for 2028 Convention

The Republican Campaign & the Fear of Attacking Trump

By tmess2 | Published August 20, 2023

Barring some major unexpected change, President Biden will not face any major opposition for the nomination next year.  At the present time, his opposition is composed of fringe candiates who reject most of the Democratic platforms of the past thirty-five years.

On the Republican side, there is supposedly a nomination contest.  But in many ways, we are seeing a repeat of the 2016 campaign with Donald Trump starting from a stronger position than he did in 2015.  Back then, Trump was an unknown quantity as a politician and Republican voters were simply playing with the possibility of supporting Trump.  Now, he is a known and the “maybe” 25% is something like a 40% certain and a 30% maybe.  But the constant is that most of the top contenders are unwilling to attack Trump.

Part of the reason why Trump has emerged with only a handful willing to attack him is a general perception about negative campaigning.  The problem with negative campaigning is that it has a cost.  Negative campaigning is aimed at “persuadable” voters.  At best, it persuades the voter leaning to the opponent to vote for you (a gain of one vote for you and a loss of one vote for your opponent or a swing of two), but it is acceptable if it merely results in the voter deciding to sit the race out (a loss of one vote for your opponent).  People do not like negative campaigns and such campaigns drive up the negatives of both the candidate doing the attack and the candidate being attacked.  If successful, the negative campaign drives up the negatives of the candidate being attacked more than it does the candidate doing the attacking.  In the general, negative campaigning works because you tend to have two candidates with enough “certain” voters that even if all persuadable voters flipped to a third candidate that third candidate would still finish third. Continue Reading...

Posted in 2024 Convention, Debates, Donald Trump, Presidential Candidates, Republican Debates, Republicans | Tagged , , , | Comments Off on The Republican Campaign & the Fear of Attacking Trump

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...

Posted in 2020 General Election, Donald Trump, Elections, Electoral College | Tagged , , , | Comments Off on The Independent State Legislature Theory, Election Law, and the Trump Crimes

Direct Democracy in Ohio

By tmess2 | Published August 6, 2023

This Tuesday, voters in Ohio will decide the future of direct democracy in Ohio.  For the most part, the U.S., like many other democracies is a republic.  In other words, the usual way that laws get made is through the legislative process with elected representatives debating, amending, and voting on proposals.  In theory, the will of the majority is expressed through their representatives.  A little over a century ago, reformers during the Progressive Era argued that there were flaws in the representative system that sometimes allowed a minority to block useful and popular legislation.  The remedy was the initiative and referendum process which allowed ordinary voters to get proposals on the ballot were they could be directly determined by the voters.

Now, not every state has authorized the initiative and referendum process.  Even in those that do, the rules differ as to how many signatures are required.  However, for the most part, states that allow for direct democracy (whether through proposals initiated by voters or by proposals referred to the voters by the government) only require a simple majority for the proposal to pass.

Even from the beginning, there has been resistance to the initiative and referendum process.  After all, special interests that are able to get what they want from elected officials do not like the voters having the ability to override those efforts. Continue Reading...

Posted in Elections, GOP, Politics | Tagged , , | Comments Off on Direct Democracy in Ohio

Convention Updates

By Matt | Published July 25, 2023

Posted in 2024 Convention, Chicago, Milwaukee | Tagged , | Comments Off on Convention Updates