Category Archives: Senate

A Republic if You Can Keep It

By tmess2 | Published July 4, 2021

While many American today are celebrating the anniversary of the issuance of the Declaration of Independence, the United States Supreme Court spent this week giving a green light to Republican attempts to cook the ballot box.  Forty years ago, both parties supported the Voting Rights Act.  Democrats wanted to increase minority representation in government, and Republicans realized that compliance with the Voting Rights Act made it easier for them to pack Democrats into “minority” districts and, thereby, make swing districts lean Republicans.

But drawing district lines is merely one way to reduce minority influence.  And, most importantly, district lines play no role in state-wide race.  To reduce minority influence in state-wide races, you need to keep minorities from voting.  And, while the Voting Rights Act clearly bars the blatant techniques like literacy tests which can be directed at minority voting, the question has remained about techniques which merely make it more difficult for minorities to vote.

Unfortunately, we now have a generation of Republican lawyers who have been hostile to the Voting Rights Act in the majority on the Supreme Court.  And we saw the results this week in a decision out of Arizona — Brnovich vs. Democratic National Committee.   This is not the first time that the issue of the meaning of Section 2 and the test that Congress wants the courts to use in analyzing Section 2 claims has been before the Supreme Court.  The original version of Section 2 merely barred practices which states were using to abridge the right of minority groups to vote.  After the Supreme Court interpreted that provision as only barring practices upon proof of a discriminatory intent, Congress amended Section 2 bar practices which “result” in the abridgment of the right of minorities to vote. 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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The Unfinished Civil Rights Agenda — The Commonwealth of Douglass and the State of Puerto Rico

By tmess2 | Published January 18, 2021

Today, we celebrate the legacy of the Reverend Martin Luther King, Jr.  And appropriately, later this month, we will see one of his successors, the Reverend Raphael Warnock sworn in as a United States Senator from Georgia.

But there is a lot of work still to be done.  And while I could probably write a much longer essay on the full civil rights agenda, I am going to limit this post to a very key symbolic part of the agenda.  Voting Rights was a key part of the King agenda.  And, while other parts of the voting rights agenda are important, today — over 4 million Americans are being denied the most basic of rights, voting representation in the House and the Senate.

At the time of the framing, the United States had vast, mostly unsettled territories.  Even in the states, the settlements were mostly limited to the coasts.  However, between 1784 and 1787, the original Congress under the Articles of Confederation adopted a series of ordinances related to the Northwest Territories (what are currently the states of Ohio, Michigan, Indiana, Illinois, and Wisconsin) that governed the settlement of those territories and their ultimate admission to statehood.  Under those ordinances, a territory was eligible for statehood when it had population in excess of sixty thousand people. Continue Reading...

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Georgia, Recall Elections, Impeachment, and Removal — a Legal Primer

By tmess2 | Published January 8, 2021

In the aftermath of a weak of sedition and riots, I am seeing a lot of questions about issues related to the seating (or exclusion) of Senators and Representatives.  I am also seeing questions about what can be done to bring a quicker end to the mistake that was the Trump presidency.

Let’s start with the Georgia elections.  As we learned in November, it takes time to finalize the election results.  In Georgia, there are three key deadlines.  The first is the deadline for receipt of overseas ballots and for the curing of “rejected” absentee ballots and for determining the validity of provisional ballots.  That deadline was the close of business today.     So, at the present time, all  of the counties should know if they have any votes left to count.

The second deadline is next Friday — January 15.  By that date, all of the approximately 160 counties are supposed to have completed their county canvass and certified all votes to the Secretary of State.  This deadline can be extended if the Secretary of State orders a pre-certification audit (as happened in the presidential race).  (It is unclear how the audit will apply to the Senate races.  The state law required one for the November election but is ambiguous as to the run-off election.  The Secretary of State also opted for a complete hand recount of all votes in the presidential race — which technically is not an audit — but the statute only requires an audit of random counties and precincts.  If a proper – in other words,  limited — audit is conducted, the counties that have to do the audit may not need an extension.) Continue Reading...

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Georgia on My Mind

By tmess2 | Published December 29, 2020

A week from today, there will be two runoff elections in Georgia for its two Senate seats.  One, the race between Senator David Perdue and Jon Ossoff will be for a full six-year term.  The other, the race between Senator Kelly Loeffler and Reverend Raphael Warnock is for the last two years of former Senator John Isakson’s term.

Georgia, like many southern states, requires a primary run-off if no candidate wins a majority in the primary.  However, Georgia is part of a very small set of states that requires a run-off if no candidate wins a majority in the general election (except for the selection of presidential electors).  It also, like some other states (again mostly in the south), uses a so-called jungle primary for special elections in which all candidates from all parties run on the same ballot in the general election rather than having party primaries to pick candidates for the special election.  Back in November, the Libertarian candidate did just well enough in the Perdue-Ossoff race to prevent anybody from getting a majority, and there were enough candidates running in both parties that nobody got over 35% of the vote with Warnock and Loeffler advancing to the runoff.

As the fact that it is primarily found in the South should indicate, runoff elections have a somewhat racist history in the U.S.  While not the only reason for wanting a runoff, keeping power for the white political and economic establishment against reformers who might support an increased role for minorities (among other things) was a motivating factor. Continue Reading...

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The New Senate

By tmess2 | Published November 7, 2020

Based on where things currently stand, it looks like when the new Senate convenes on January 3, the Republicans will have a 51-48 or 50-49 majority (depending upon the results in Alaska).  First, a word on why there will be only 99 Senators.

At this point, it looks like both races in Georgia are headed to a run-off on January 5.  Senator David Perdue’s current term ends on January 3.  As there will be no winner in that race, the seat will technically be vacant as of January 3.   Senator Kelly Loeffler, however, was appointed to fill a seat.  The term for that seat ends on January 3, 2023.  Under the Seventeenth Amendment, until there is a winner of that special election, she continues to hold that seat.  (For Arizona, that means that as soon as the result is certified, Mark Kelly replaces Sally McBride as the new Senator.  So, if there is a lame duck session in December, the margin will be 52-48 rather than the current 53-47.)

The big issue is whether anything will be able to get through the new Senate.  The real question is whether there is a moderate caucus that could try to leverage both parties against each other to make some real reform to allow the Senate to function.  On the Democratic side of the aisle, Senator Joe Manchin (Senator from Coal Country West Virginia) has to walk a very fine line if he wants any chance at re-election.  Likewise Senator Sinema and Senator-to-be Kelly from Arizona represent a marginally swing state as would potential Senator Osser and potential Senator Warnock from Georgia.   And Senator King from Maine seems to be a true independent.  So, there is a group of four to six in the Democratic caucus that are not going to want to move too fast and might be open to reforms to make the Senate a more “collegial” body. Continue Reading...

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Can Justices Get the Issues that they Want

By tmess2 | Published October 25, 2020

During her confirmation hearings, soon-to-be Justice Amy Coney Barret conveyed the impression that Supreme Court justices do not control the issues that come before them.  This impression is only very slightly true and is mostly false.

The Constitution does limit court to deciding cases and controversies.  A judge does not get to wake up in the morning and say that today I am going to look at absentee voting rules in Texas.  Instead, the judge must have some party bring that case.  But, there are two ways that judges, especially Supreme Court justices, can influence what cases are brought to them.

First, the United States Supreme Court is mostly a discretionary court.  In other words, the Supreme Court gets to choose what cases they take.  If four justices want to look at Second Amendment issues, the Supreme Court will take a Second Amendment case.  The justices, for the most part, understand that there are certain circumstances where they should take a case.  Thus, you have a lot of cases involving issues of federal statutes on which the lower courts have split.  But, for the most part, it is up to the justices how many abortion or civil rights or Fourth Amendment or Free Speech cases they take. Continue Reading...

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Midwest Senate Races

By tmess2 | Published October 18, 2020

With a little over two weeks to go, there are two Senate races in the “farm belt” part of the Midwest that are relatively close — Kansas and Iowa.

Kansas has been a pleasant surprise.  The Republican leadership in D.C. dumped a ton of money into the Republican primary to defeat Spawn of Satan Kris Kobach, and most people assumed that, having succeeded in getting Roger Marshall the nomination, the Republicans could go back to ignoring Kansas.  But a funny thing has happened.  Apparently, the divisions in the Republican Party haven’t healed.  While Trump looks likely to win Kansas, his numbers are rather low for a Republican in such a deep red state.  And if Trump only gets in the mid-50s, Roger Marshall can’t afford to bleed any support away.

Part of the problem for the Republicans is that Kansas is a geographically big state.  While about one-third of the state lives in close proximity to Kansas City, the other two thirds are pretty scattered.  And that means that candidates running their first state-wide race have to introduce themselves to a lot of people who have never heard about them before.  While both candidates face this problem, the Democratic candidate, Barbara Bollier had only minimal opposition in the primary which meant that she could run positive ads introducing herself as a former moderate Republican who only became a Democrat because the Kansas Republican Party had fallen off the far-right cliff.  Meanwhile, Marshall had to deal with a very nasty campaign in which many of his past sins were broadcast to the rest of the state for the first time.  In the end, Marshall won the primary because the party leadership told the voters that he was the only viable alternative to Kobach and that Kobach couldn’t win, not because Kansas voters liked Marshall. Continue Reading...

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Runoffs and Control of the Senate

By tmess2 | Published October 14, 2020

With less than three weeks to go until election day. A lot of ink has been spilled over how state laws on the receipt and counting of absentee/mail-in ballots could delay knowing who won the presidential election.  But it could take even longer to know who will control the U.S. Senate.

One of the reasons is, of course, that the same delay in counting votes for the Presidential election could also delay counting the votes for the Senate elections.  However, given where the seats are and the current polling average, I expect that most Senate seats will be called on election night.  And it is possible that one party or the other will have a good enough night to get to 51 seats by midnight.

But there is a real chance that control of the Senate will come down to three races.  (At the very least, these three races will impact how comfortable the majority is.  Both parties have a handful of Senators who will occasionally split on a key vote.  Needless to say a 50-50 Senate with Vice-President Harris only voting in the case of a tie is going to be less likely to pass major legislation than a 53-47 Senate especially if the filibuster finally goes the way of the dodo.)  And in all three races, the election may not be over on election night. Continue Reading...

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The Confirmation Hearings

By tmess2 | Published October 10, 2020

In the past five years, we have seen the Turtle (Senator Mitch McConnell) go from the unprecedented blocking consideration of a Supreme Court nomination made eight months before an election change into the Hare trying to force an unprecedented vote on a Supreme Court nomination made after Labor Day prior to the election.  While the Senate did not have to approve the nomination of Merrick Garland in 2016, the very rules that the Republicans are relying on now to justify their consideration of Amy Coney Barrett mandated giving Judge Garland a hearing and a vote (at least a procedural vote).   And given the modern procedures, giving Judge Barrett a vote before the election requires cutting the process short.  The simple fact is that conservative Republicans are trying to pack the court.  While, barring some type of miracle, Democrats will not be able to prevent a vote from taking place before the election, there are some issues that should be front and center at the confirmation hearings that will take place this week.

At the top of the list is health care.  While the nominee will probably try to evade the question, it is important to make crystal clear that — if confirmed on the current schedule — Judge Barrett may be the one vote that removes the current protection for people with preexisting conditions.  In the November argument session, the Supreme Court will consider the constitutionality of the Affordable Care Act.  This case arises from the 2012 decision upholding the Affordable Care Act.  In that decision, after rewriting the law to avoid finding that the Affordable Care Act was authorized by the impact on interstate commerce, the 5-4 majority found that the individual mandate was authorized as a tax.  When the Republican Congress failed to repeal the entire act but did repeal the tax, Texas and other red states filed the current suit alleging that the repeal of the tax also repealed the individual mandate and the rest of the Affordable Care Act.

While Judge Barrett will probably try to avoid talking about the merits of the case (as she will be sitting on the Supreme Court when this case is heard), she should be at least forced to explain her approach to one of the key issues in the case.   That issue is “severability.”  Stripped of legal jargon, severability is about whether one invalid clause in a bill or statute requires the courts to reject the entire bill.  Under most of the recent decisions, there is no plausible basis for the Supreme Court to strike the entire Affordable Care Act because Congress expressly decided to repeal one part and leave the rest intact. Continue Reading...

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