Monthly Archives: April 2020

The COVID Shutdown and the Law

By tmess2 | Published April 23, 2020

For the past week or so, those who follow the news has been treated to the experience of misinformed Tea Party wannabes protesting that the COVID 19 restrictions adopted by state and local governments are violating their constitutional rights.  For those of us who have been following the courts, however, we have seen red state attorney generals winning cases against abortion providers who claim that those restrictions go too far in terms of limiting abortion.

For the most part, the restrictions at issue in these cases have been the limits placed by the various states on “elective” surgical procedures.  One example of the red states winning this case came earlier this week in the Eighth Circuit (which covers much of the farm belt in the central part of this country) looking at the restrictions imposed by Arkansas.  In the case, the Attorney General of Arkansas (supported by most of the red state Attorney Generals) asked for relief from the trial courts order enjoining the enforcement of this ban on non-emergency surgical abortions.  While the application of the law to the case is debatable under the specific facts of the case, the Eighth Circuit was clear on the law that applies to COVID-19 orders.

The basic principle — often repeated by the courts — is that constitutional rights are not absolute.  Instead, in some very narrow circumstances, the obligations of government to protect the public can overcome constitutional rights.  In cases decided in the late 1800s and early 1900s when local and national epidemics were somewhat common, the United States Supreme Court held that the “liberty secured by the Constitution . . . does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.”   In particular, “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”   As such, “the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” Continue Reading...

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Supreme Court October 2019 Term — COVID 19 Reset

By tmess2 | Published April 18, 2020

As with other institutions of government, COVID 19 has caused a degree of chaos in the court system.  The judicial system requires a degree of interaction between parties and judges, and social distancing requires finding new ways to handle these interactions.

The Supreme Court, like every other judicial institution, has had to find ways to cope.  Of course, the Supreme Court has been a notoriously slow institution to adapt to modern technology.  It was the last federal court to accept electronic filing.  As recently as a few years ago, everything but emergency petitions were filed by mailing (or having somebody personally deliver them) to the Supreme Court.

As this site has discussed over the years, the Supreme Court is what lawyers call a discretionary court.  That means that, with a limited number of exceptions, a party has to request that the Supreme Court take a case (the formal name for the request is a petition for writ of certiorari).  The Supreme Court then decides if it wants to hear the case.  So most of the decisions of the Supreme Court are decisions to not take a case.  There are also two small categories of cases in which the Supreme Court takes and immediately decides the case — both involving a reversal of the lower court.  One category is frequently referred to as “grant, vacate, and remand.”  Those cases typically involve an issue that the Supreme Court decided while the application for review is pending.  In these cases, the Supreme Court grants review, vacates the decision on that issue by the lower court, and remands (sends the case back) for the lower court to reconsider in light of the recently decided Supreme Court case on the issue.  The other is summary reversal.  These cases typically involve the unanimous conclusion that the lower court simply ignored the prior decisions of the Supreme Court.    But every year, the Supreme Court decides that it wants to fully hear approximately 70 cases per year (representing about 1% of the applications that the Supreme Court receives). Continue Reading...

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Random COVID 19 Thoughts

By tmess2 | Published April 11, 2020

Depending where you live, you are anywhere from days to weeks into the COVID 19 shutdown.  While we have previously looked at the impact of COVID 19 on presidential politics, this post will focus on some other impacts.

Let’s start with our state legislatures.  While the size varies from state-to-state, most of our legislative bodies are larger than should be gathered in one place at one time.  Thus, it makes sense for legislative bodies to minimize days when they are actually in session and to reduce the number of hearings that they are holding (which many have done).  On the other hand, many states have specific dates for their regular sessions.  So, at some point soon, these state legislatures will reach the point where they have to meet so that they can pass appropriations bills to continue operations into the next fiscal year.  How these state legislatures will handle these necessary votes — perhaps arranging for staggered voting so that one group of ten enters through separate doors, votes and then departs for the next group to enter — and what non-appropriations bills will also be deemed necessary remains to be seen.  (I know that, in my state, the Republican majority is very unhappy with redistricting reform that passed in 2018 and want to put another proposal — with just enough sweeteners on legislative ethics to appeal to voters who do not understand the new proposal — to undo most of the reform on the ballot,  Before COVID 19, it was likely that something would get on the ballot.  Now, it’s unclear if the desire to get this issue on the ballot is high enough to get very limited hearing time and floor time.)

On similar grounds, many states have an initiative and referendum process. This process requires a certain number of signatures (sometimes with geographic distribution requirements) by a certain date.  Particularly in a state in which — whether through intentional gerrymandering or population distribution — one party has control over the government, this process can often be the only way to get things like increases to the minimum wage or protection of worker’s rights passed into law.  With COVID 19 (even though the petition gathering may technically be exempt from the stay-at-home order in some localities), it is going to be very difficult to get enough signature for ballot initiatives this year. Continue Reading...

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With Biden the presumptive nominee, convention planning becomes much easier

By Matt | Published April 9, 2020

Now that Bernie Sanders has suspended his campaign, decisions about the 2020 Democratic Convention can be made directly by the DNC with the Biden campaign.  So where do we stand?  First, On Sunday, Biden floated the idea of a virtual convention:

Well, we’re going to have to do a convention. We may have to do a virtual convention. I think we should be thinking about that right now. The idea of holding the convention is going to be necessary. We may not be able to put 10, 20, 30,000 people in one place and that’s very possible. Again let’s see where it is — and what we do between now and then is going to dictate a lot of that as well. But my point is that I think you just got to follow the science,”

Given that the convention is now not until August, that gives Biden and the DNC another month to make a decision.  When do they have to decide by?  I would think they have until at least June 1. They certainly have to decide before construction starts in the Fiserv Forum, which is usually 6 weeks before the convention, or around the start of July. (The Milwaukee Bucks and the NBA present a completely parallel wild card, which we’ll address in a future post). Continue Reading...

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Delegate Math 2020 — Wyoming

By tmess2 | Published April 8, 2020

While waiting for the end of voting and results out of Wisconsin and Alaska, the next state up is Wyoming.  Wyoming was originally supposed to be a caucus state (with the caucuses to be held on April 4 with absentee votes included).  In light of COVID 19, the Wyoming Democratic Party has cancelled the in-person county caucuses/conventions and will be using a mail-in ballot (transforming the caucus into a party-run primary).

Because a substantial number of votes have already been cast (similar to the situation in Ohio), this primary will only be partially impacted by the decision of Senator Sanders to suspend his campaign.  Depending on the results in Wyoming and Ohio (which was already covered in the post on the March 17 primaries), we may or may not have further posts about the May and June states.  (if Biden wins Wisconsin, Alaska, Wyoming, and Ohio comfortably, I will probably not be doing any further delegate math posts as the exact count from the remaining states will not have much significance.)

As with Alaska, Wyoming will be using ranked-choice voting.  Thus, the final count will only include viable candidates meaning that there is no difference between total votes and qualified votes.  The ballots must be received by April 17.  The Wyoming delegate selection plan is ambiguous as to whether ranked choice voting is done on the county level (with state convention delegates being used to allocate the national delegates) or on the state level (with the popular vote being used to allocate the national convention delegates).  And the Wyoming Democratic Party has not announced a time when they will release the results from the mail-in ballots. Continue Reading...

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Delegate Math 2020 — Alaska (Updated)

By tmess2 | Published April 4, 2020

With things somewhat up in the air about Wisconsin, Alaska is the next state to complete its voting.  Alaska is one of the states that moved from a caucus to a party-run primary since the last cycle.  In response to Covid-19, the Alaska Democratic Party has moved to a vote-by-mail election.  Ballots are supposed to be received by April 10, and the state party will release the results on April 11.

Alaska is using a ranked-choice ballot with candidates being eliminated (starting with the candidate with the least votes) until all of the remaining candidates are viable.  With only two candidates still running, even if some small segment of voters who voted early have another candidate as their first choice, the final count after preferences are distributed should leave only Senator Sanders and Vice-President Biden with votes on the final count.  Under the rules for the primary, because only viable candidates will be left in the final count, there is no difference between the final total votes and qualified votes.

What makes delegate math unusual in Alaska is the fact that it is a single-district state.  Under the rules, the allocation of delegates is calculated separately for each of the three pools, but the state-wide results are used to allocate all three pools.  The fact that the pools are calculated separately gives a different result than if all the delegates were allocated as one pool. Continue Reading...

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Delegate Math 2020 — Wisconsin (UPDATEDx3)

By tmess2 | Published April 2, 2020

As of this moment in time, it looks like Wisconsin will be proceeding with their April 7 primary, sort of.  The sort of is that a judge has extended the deadline for mail-in votes which — under the ruling — can be mailed in after April 7 as long as the ballots are received by April 13.  It is unclear whether the various local election authorities will still be releasing the in-person vote totals on April 7 or if the results will be held until April 13.  [UPDATE:  This morning, the judge who granted the extension on mail-in ballots issued a revised order requiring the election results to be held until the afternoon of April 13.  Effectively, that makes the party-run primary in Alaska — ballots due on April 10 with results to be released on April 11 — the next set of results that we will receive, unless an appellate court sets aside the current order which is always a possibility.  UPDATE 2:  On Monday afternoon, the U.S. Supreme Court issued an order staying the District Court’s ruling.  Under this order, all absentee ballots must be postmarked by April 7 and received by April 13.  Apparently, results can be released after the polls close, but that is not 100% clear.  UPDATE 3:  The state election authority in Wisconsin has directed local election officials that they should not release results until April 13 under the part of the court order that was not stayed.  It is unclear how binding that is and some local officials may release results earlier than April 13.]

We are now officially down to two candidates.  And that makes delegate math relatively simple barring the unlikely event of uncommitted getting delegates.  Wisconsin has eight congressional districts with between five and eleven delegates each.  At the state level, Wisconsin has ten party leader delegates and nineteen at-large delegates.  Overall, Wisconsin has eighty-four delegates.

The Seventh District has five delegates.  Whomever gets the most votes will win at least three delegates.  To get a 4-1 split, the winner needs 70% of the qualified vote. Continue Reading...

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Democratic Convention postponed to Aug 17

By Matt | Published April 2, 2020

We had this one called before anyone else:

The Democratic National Committee is postponing the party’s presidential convention in Milwaukee to August 17, the week before the Republican Party’s convention.

The delay from July 13 came after likely nominee Joe Biden publicly called for the convention to be rescheduled in response to the coronavirus pandemic. –Politico Continue Reading...

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