Monthly Archives: December 2019

Ranked Choice Voting and the Primaries

By tmess2 | Published December 29, 2019

As the year comes to a close, we are approximately five weeks from the first votes of the 2020 election.  This post is to highlight one of the new features of this election — that several states will be using ranked choice voting.  (As described further below, Nevada will be using ranked-choice voting to allow early voters to participate in the caucuses.   Alaska, Hawaii, Kansas, and Wyoming will be using ranked-choice voting in a party-run primary.  Maine will be using ranked-choice voting in a state-run primary.)

In the past, we have had something similar to ranked choice voting in some of the caucus states.  Typically, many of the caucus states allow attendees to realign after the first vote if their preferred candidate does not receive enough votes to qualify for a delegate.  Of course, when this process occurs at a caucus, the attendees have some idea of where the candidates currently stand and have the ability to negotiate delegate slots in exchange for moving as a bloc.  (Even at the handful of remaining caucus, the ability to make deals will be greatly reduced.  In the past, it was possible — for example — for Richardson supporters to move to Edwards in exchange for a pledge that one of the delegate slots would go to a Richardson supporter who would be a free agent at the county convention.  Under the new rules, the national delegate allocations are locked after the precinct convention significantly reducing the value of such delegate deals.)

Ranked choice voting requires voters to decide in advance whom they would support if their candidate is not viable.  For the most part, there has not been large support for moving to ranked choice voting in general elections in this country.  For a variety of reasons, the two major parties are more dominant in the U.S. than in most other countries.  (For example, Canada, the United Kingdom, and Australia all held parliamentary elections last year.  In those elections, the two main parties had a combined vote total of 67-76% of the vote.  By contrast, in the 2018 house elections, the two main parties had over 98% of the vote.  Even at the low point of the 1992 election, the two main parties combined for over 80% of the vote.)  The absence of significant votes for third-party candidates means that — most of the time — the winning candidate in U.S. elections gets a majority of the vote in their district.  (Again for comparison, in the 2019 elections abroad, the winning candidate only had a plurality in about one-third of the districts in the United Kingdom, and about two-thirds of the districts in Canada and Australia.  By contrast, combining the House, the Senate, and state-wide races, the winning candidate in the 2018 elections in the U.S. only had a plurality in 28 contests — less than five percent of the races. ) Continue Reading...

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Impeachment History 101 (Part 2)

By tmess2 | Published December 21, 2019

During this week, we frequently heard from Republicans that the impeachment of Donald Trump was historical because it was partisan and all about politics.  Whether the Republicans knew that this was not true or are living in an alternate reality is impossible to tell (but I assume that at least some of them have some familiarity with history).  But if you want to discuss an impeachment that was all about politics, you need to turn back to the impeachment of Andrew Johnson in 1868.

The events that culminated in the impeachment of Andrew Johnson began in the spring of 1864.  While today, the Union victory over the rebel governments in the South during the Civil War is seen by many as inevitable.  But in 1864, that was not the case.  And the uncertain state of the war bled over into the politics.  Facing potential challenges from the left (with the Radical Republicans considering running their own candidate) and the right (from Anti-war Democrats), Lincoln joined the moderate Republicans and Pro-war Democrats into a National Union Party with Andrew Johnson as the Vice-Presidential candidate.  Of course, by November, the fortunes in the war had changed and the National Union Party won easily.  But after the assassination of Lincoln, Johnson became President and was faced with a Republican majority that had a different vision of reconstruction than Lincoln and Johnson had run on.  If Lincoln had lived, perhaps he would have been able to keep everybody together on the same page or would have supported a more vigorous program of Reconstruction when the former Confederate states tried to get by with the least change possible.  Johnson, however, wasn’t Lincoln, and his refusal to budge led to a bitter 1866 mid-term election in which the terms of Reconstruction was the main issue in the campaign.

After the Radical Republicans won the election of 1866, they decided to force their ideas through (and they had the votes in Congress to do so).  However, Johnson as commander-in-chief was technically the boss of the military that would have the duty of carrying out the Congressional agenda.  So to keep Johnson from interfering, Congress made certain the chain of command went through the Secretary of War and also passed the Tenure in Office Act.  The key provision of the Tenure of Office Act required the Senate to ratify the removal of any cabinet officer before the removal became permanent.  (If the Senate was not in session, the officer was temporarily “suspended” until the Senate made its decision on whether to approve the removal.) Continue Reading...

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Impeachment History 101 (Part 1)

By tmess2 | Published December 17, 2019

With impeachment seeming likely to proceed this week, it’s time for a journey in the wayback machine to impeachments past.  We start, not with presidential impeachments but with the second impeachment of a federal judge.

In 1800, the Democratic-Republicans won the presidency (along with the House and Senate).  By that time, most (if not all) sitting judges were Federalists.  In fact, just before John Adams left the White House, the lame duck Federalists created several new judicial positions and quickly filled them (which in part led to the case establishing judicial review of unconstitutional laws — Marbury vs. Madison. 

Now, customs and the procedural rules governing trial were very different back then.  Supreme Court justices also had responsibilities for the federal circuits (the forerunner of today’s Court of Appeals) including presiding over trials when the Supreme Court was not in session.   And, in instructing the juries at the end of a trial, it was normal for judges to discuss all types of issues (including political issues) rather than limiting themselves to the law that applied to the case.  Needless to say, that meant that there were a lot of federal judges who frequently made disparaging comments about the President and Congress to juries (as well as making legal rulings that the Democratic-Republicans did not like).  As federal judges generally have life-time tenure unless they resign or are impeached, some members of Congress thought that the best solution was to start impeaching judges.  After successfully removing one district court judge who was probably no longer fit to serve for health reasons, Congress turned their attention to Associate Justice Samuel Chase. Continue Reading...

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International Politics — Trump Ally 1 and Trump Ally 2

By tmess2 | Published December 12, 2019

While folks in D.C. are preparing articles of impeachment, there is election news regarding two of Trumps favorite elected politicians — Bibi Netanyahu and Boris Johnson.

Bibi, like Trump, has been facing investigation for criminal misconduct.  And because Israel permits charges to be filed against a prime minister, he is now actually facing charges.  Meanwhile, Israeli politics are a royal mess.  When there are two or three really strong parties that get most of the votes, proportional representation (or similar systems like the mixed-member system in Germany) can work.  The small parties get to get minor concessions from the major parties, but one of the major parties is typically in a strong enough position to turn to other coalition partners if a potential ally asks for too much.  In Israel, the main parties are simply not strong enough.  Netanyahu’s Likud is only getting around 25% of the vote, leaving them well short of a majority in the Knesset (Israel’s parliament).  And the Labour Party has essentially collapsed leaving centrist politicians to emerge one after the other as the alternative to Likud in new parties that bubble up and then collapse from cycle to cycle.  This past year, that alternative has been the “Blue and White” Party.  But the Blue and White Party has also only gotten around 25% of the vote.  And the remaining parties are too fractured to get enough of them together.  The remaining 50% of the vote is almost split evenly between the religious parties (who want special favors for the ultra-Orthodox), the remnants of Labour and its allies (who want some generally progressive secular government), the right-of-center secular nationalists (who want to repeal the existing special rights of the ultra-Orthodox), and the Arab parties.  This roughly even split means that the natural allies of Likud and Blue and White stood at around 50-52 seats each after the last election.  The secular nationalists could theoretically put either side over the top, but they refuse to sit in a coalition with either the religious parties or the Arab parties (essentially requiring a national unity government as a condition for joining a coalition).

In the April 2019 elections, Likud and Blue and White won 35 seats each (out of 120).  The religious parties combined for 21 seats, leaving a potential Likud-led coalition at 56 seats.  On the other hand, Labour and other progressive parties won a total of 14 seats, leaving a potential Blue and White coalition at 49 seats.  The remaining 15 seats were split between the Arab parties (10 seats) and the secular nationalists (5 seats), meaning that the only way to get to 61 outside of a national unity government would be for the secular nationalist to enter a coalition that either expressly included the religious parties (and the two groups had conflicting demands) or had the implicit support of the Arab parties.  Since neither alternative was acceptable, no government could be formed and we had a second round of elections in September. Continue Reading...

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The Argument That Wasn’t — Will the Supreme Court Address Gun Rights This Term?

By tmess2 | Published December 7, 2019

When I attended law school, the general consensus of legal scholars and the controlling cases held that the Second Amendment protected a “collective” right rather than an individual right.  However, around that time, a movement was starting among conservative interest groups (with some support from conservative scholars) to push the idea that there was an individual aspect to the Second Amendment.  The historical argument on this issue is murky due, in large part, to the way that cases were decided pre-1800.  About a decade ago, conservatives prevailed (by a 5-4 vote) in having the Supreme Court hold that individuals did have some rights under the Second Amendment and that those rights were “incorporated” against the states by the Fourteenth Amendment.  However, to get to five votes, the Supreme Court left unaddressed much of the details about the nature of the right protected by the Second Amendment.

Since the Supreme Court issued its two opinions, lower courts have been handling challenges to individual laws restricting the ability to purchase firearms — some involving the type of gun, some involving who can purchase firearms, and some involving other details.  The decisions in these cases have been somewhat narrower than pro-gun activists would like.  They have been hoping to get a case to the Supreme Court so that the Supreme Court could establish the legal test that will be applied in Second Amendment cases.  Earlier this year, conservatives thought that they had found the perfect test case.

Last January, the Supreme Court granted review in New York Rifle and Pistol Association vs. New York, NY.  The case involves a challenge to a New York city ordinance that is very restrictive on where gunowners can take their guns.  (Basically, New York State has two types of permits for gun ownership — one only covers general ownership — sometimes referred to as a target license and sometimes referred to as a premises license — and the other permits carrying a weapon — a carry license.  The New York City ordinance provided that people who only have the general permit can only take their gun out of their in-city home to go to an in-city gun range and could not take them to a second home outside the city or to an out-of-city gun range.)  Seeing the writing on the wall, New York State passed a new gun law that essentially invalidated the New York City ordinance and New York City repealed its ordinance and passed a new one that was significantly less restrictive. Continue Reading...

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