Category Archives: Elections

The News from London

The U.S. system is somewhat unique in that we have regularly scheduled elections with a regularly scheduled process for choosing candidates, mostly by means of elections open to most voters.  Other countries do things differently.  Many countries are parliamentary systems with the Prime Minister being a hybrid of the U.S. President (in terms of power), the U.S. Speaker of the House (in terms of being officially chosen by the whole House and removable by the whole House), and Majority Leader of the Senate (in terms of being removable by the majority of the majority party).

In recent weeks, the Trumpish Prime Minister of the United Kingdom, Boris Johnson, has been bogged down by scandals.  Last week, the heat got too high for many members of the Conservative Party, and an open revolt forced Boris Johnson to agree to resign.  Under the British system, this means that the Conservative Party has to choose a new leader who will then become Prime Minister.

There are no formal rules for this type of leadership election and, when this situation occurs, it falls to the Conservatives in Parliament to draft the rules that will apply to this election.  This time, they have chosen a rather expedited process.  The rules were announced just yesterday. Continue Reading...

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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. Continue Reading...

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Lessons From the January 6 Committee

Looking at the highlights from the January 6 Commitee hearing this week, there were two key takeaways from this week hearings — both related to the vote counting process.

First, as anybody who has been involved with campaign at any level knows, votes are not instantly reported at the same time.  Instead, election results roll in as precincts turn in their results and counties count absentee and “federal” ballots (ballots case by military and overseas voters that just cover federal and statewide elections).   More importantly, results by precinct and by county are not random — either in timing or in the vote counts.  There is a regular patten by which results are reported and an expected result by precinct and county.

To use my home county for an example, it is a small county that typically has between 12,000 and 15,000 votes.  While the exact number of precincts has changed, it has always been between 15 and 20 precincts.  In the years that I have lived, there have been changes.  We have gone from a central counting process in which the ballot boxes in each precinct were just ballot boxes and the counting machine was in the courthouse to a precinct counting process in which the ballot boxes are also counting machines and the central counting part of the process is simply downloading the results from each precinct and adding the results together.  This change has speeded up the process (as the county election authority no longer has to run 15,000 ballots through the counting machine and reset the machine for each precinct) and we typically have the full results by 8:30 p.m. (ninety minutes after the polls close) rather than 11:00 p.m.  Additionally, the results are posted on-line as soon as the printout of a precinct’s result can be scanned and uploaded thereby eliminating the need to sit around the courthouse waiting for a copy of the printouts.  But what hasn’t changed is that there is a rough sequence in which the precincts are reported.  In most elections, the first precincts to report are the smaller towns close to the county seat (in the north central part of the county).  Those precincts get to the courthouse first because they are only 5-10 minutes away from the courthouse, and — given their small size — they tend to have few people in line at 7 p.m. and can quickly get to the process of closing the precinct and packing up the ballots and counting device to take to the courthouse.  On the other hand, the five large precincts in the southeast and southwest of the courthouse tend to be the last ones to get to the courthouse as they have the furthest to go and tend to have lines at 7 p.m. (and thus take longer to close as the closing process does not begin until the last person has voted).  In short, while the exact sequence may change some from election to election (as the exact time when the election judges get to the courthouse depends on how long the lines are). Continue Reading...

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Australia Election

As more states are considering moving to some form of ranked-choice voting, this weekend is a chance to look at the original home of ranked-choice voting — Australia.  There are certain differences between how ranked choice voting works in Australia and how it is likely to work in the U.S.

The big difference between the two systems is that, in elections in which Australia uses ranked-choice voting, there are only two election contests — each of which has a separate ballot.  Because there is only one race on each ballot.  There is no need for trusting computer programs to accurately read the preferences and allocate them for the House of Representatives.  (The Senate uses single transferrable vote which is more complicated and does require computer assistance.)

Second, Australia does not have party primaries.  Candidates are chosen by party committees (which can sometimes backfire when the national party forces a candidate on the local party). and it is not difficult for small parties to get on the ballot.  In most of the states using ranked choice, they either have ranked choice for party primaries or have a “top four” primary with ranked choice reserved for the general election. Continue Reading...

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The 2022 Elections: Revenge of the Trumpists

We are on the eve of the start of the first big segment of the primary season for the 2022 election.  Texas had its primary back in March, but primary season really starts this Tuesday with primaries in Ohio and and Indiana.

Including the Texas run-off, there are primaries or run=offs set for every week between now and June 28 other than the week of Memorial Day.  During that period, a grand total of thirty states will have primaries or run-offs (with some having both).  There is normally a longer breaker between the Spring primaries and the late Summer/early fall round of primaries.  But due to postponed election dates, Maryland will have its primary in mid-July and North Carolina will have its run-off on July 5 or July 26, depending on the offices which require a run-off.  Phase two of the primary season begins on August 2 and runs through September 13.

Mid-term elections are tough for the party in power.   The public always want the big problems solved instantly.  And big problems are typically years in the making and will require years to solve.  Making things worse, the party that wins an election always tries to pass what their primary voters want (which is not the same as what general election voters want) but ends up with in-fighting between the various factions of the party.  It has been a long time since any party has won by a big enough margin to be able to pass legislation despite those differences. Continue Reading...

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French Election — Round 1

Continuing the international politics theme from last week, this Sunday is the first phase of the French presidential election.  It’s only the first phase for two reasons.  First, France uses a runoff system (the runoff will be in two weeks).  Second, France has so many political parties that there is no chance of anybody getting a majority in the first round.  For the presidential election, there will be twelve candidates on the ballots.

Unlike in Australia, where the competition is mainly between a center-left party and a center-right party with minimal differences on international issues, there is a wide range of views of the role of France in international politics and Vlad the Destroyer’s minions have certainly been trying to influence the chances of the candidates with disinformation campaigns.

While he is not certain to win the run-off in two weeks, most observers expect the incumbent President, Emmanuel Macron, to make the run-off.    He has led every poll with about 25-30% support.  In terms of international issues, Macron sits firmly in the camp that has dominated France for the past fifty years — for lack of a better name, strong France internationalism.  The basic gist of French foreign policy is that France is an active participant in working with other major democracies to build an international consensus on issues, but France certainly looks out for its own interests in those negotiations and is willing to say no to its allies or go it alone when it has to. Continue Reading...

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Australian Politics 2022 Style (Updated)

International Election season is fast approaching.  Today’s post is on Australia.  As of today, we do not have an exact date for the election in Australia, but we are pretty sure that it will be May 7, May 14, or May 21.  Or to be more exact, we are certain that Australia will have a Senate election on one of those three dates, and are 99% certain that there will be a House election on the same date.

As with other countries, it is not that any one thing about Australia’s elections is unique.  It’s how these features combine that make it unique.  In this case, the issue is the different rules for Senate elections and for House elections.  For Senate elections, there are some similarities between how the U.S. and Australia structure the Senate.  In both countries, each state gets the same number of Australia (twelve per state in Australia with the territories getting two seats each), the terms for Senators elected from the states are six years (with the term for territorial senators in Australia being three years), and terms are staggered.  What this means is that, every three years, Australia has a half-Senate election (six senators per state and the territorial senators).  Unlike the U.S. there is no set date for a Senate election.  Instead, it can be called for any time in the last year of the term (although the winners do not take office until the new term begins).  As the new term begins on July 1, the last possible date to hold the election (and be certain that the results will be finalized) is May 21.  And, at this point in time, even if the election were called the second that this post goes live, the earliest that the election could be held would be May 7 (but if the election is not called by Monday, that date would no longer be available).

On the other hand, while there are some similarities with the U.S. House, the Australian House is more like the Canadian House.  The House is composed of districts (Division in Australia) which are apportioned to the states based on population.  Like the U.S. House, there is a minimum number of Divisions (five) per state.  Currently, the only state which gets extra seats under this rule is Tasmania.  Unlike the U.S., which only reapportions every ten years, in Australia, this reapportionment occurs after every House election.  If a state’s total number of seats changes, or any districts (called Divisions in Australia) are too large or small (i.e. outside the permitted deviation) or seven years has passed since the last time that the lines have been redrawn, a non-partisan committee of civil servants redraws the lines for that State.  Australia’s term length for the House is three years — exactly in the middle between Canada and the U.S.  However, like in Canada, that term is only the maximum term, and the government can call an election early. Continue Reading...

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The Supreme Court and Voting Rights

Parties seeking to challenge a new law have to make a choice between filing a case in federal court (assuming that they have a federal constitutional claim) and filing in state court.  Unless you have a favorable state Supreme Court, the usual tendency is to file in federal court.  However, it is becoming very clear that, if you are challenging an illegal redistricting plan, you really have to file in state court as the U.S. Supreme Court will not be give any assistance to plaintiffs.

This week, the U.S. Supreme Court had what should have been a no-brainer.  When faced with a challenge to the Alabama district lines under Section 2 of the Voting Rights Act, the three-judge panel issued a lengthy order which included detailed analysis of the evidence and tracked the governing precedent under Section 2.  Under the existing law (and the plain language of Section 2), the Alabama maps were and are illegal.  Under the legal standards governing a stay (which takes into account the merits and the interests of the parties), there was no basis for a stay.  The Supreme Court should have denied the stay and summarily affirmed the judgment.

But that’s not what the Supreme Court did,   By a 5-4 vote, the Supreme Court issued the stay and put the case on the argument docket for the fall.  Because there is no requirement for opinions on stays, we only know the reasoning of some of the justices.  And what we do know gives a strong hint that the Voting Rights Act is effectively dead. Continue Reading...

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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. Continue Reading...

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Virginia and New Jersey — Gaffes and What’s Next

It is a quadrennial tradition.  The party in the White House has poor results in the gubernatorial elections in New Jersey and Virginia, and the pundits predict doom and gloom in the mid-term elections.  (Of course, then the party in the White House has losses in the House and maybe losses in the Senate and the pundits say “see we told you so.”  So what lessons should we take from this week’s results.

First, Terry McAuliffe did make a gaffe.  Using the classic definition of a gaffe, he told the truth that nobody wants to hear.  In his case, in response to questions about education, he noted that parents do not get to dictate to the schools what the schools teach.  This statement is partially true.   But as with most sound bites, explaining what was meant takes a lot of time and does not overcome the gut reaction to the original statement.

What is absolutely true is that public schools are not a system of private tutors.  Teachers are responsible for teaching a class of students.    For the system to work, Johnny has to be using the same books and Kathy.  So Johnny’s parents do not get to decide the materials that Johnny has to read for the course. Continue Reading...

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