Monthly Archives: November 2020

Trump and the Supreme Court (UPDATED)

By tmess2 | Published November 29, 2020

Even though Joe Biden will become President on January 20, Donald Trump is still the president.  Thus, until January 20, the policies of President Trump are still the policies of the U.S. Government, and Bill Barr and Noel Francisco still get to decide what position the U.S. will take in pending litigation

This week, the U.S. Supreme Court returns for its first set of oral arguments since Joe Biden became the presumptive President-elect.    And the session begins with a very big case — Trump vs. New York.  The issue in the case is whether unauthorized immigrants count as part of U.S. population in the census for the purpose of allocating congressional seats and government funding.

The big development on this case is that the Census Bureau will apparently be unable to meet the statutory deadline of late December for reporting the total count due to certain issues that have arisen in finalizing the count.    The U.S. Supreme Court had shortened the time limits on this case to make sure that they could hear arguments on it and issue a decision in a timely fashion.  But if the numbers will not be available until after January 20, and President Biden opts to use the full count, this case could disappear as moot.  I would prefer that the Supreme Court issue a decision upholding the plain language of the Constitution requiring a count of all persons residing in the U.S., but, as long as the Republicans attempt to manipulate the numbers fails, I can live with a non-decision. Continue Reading...

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Congressional Election Contests

By tmess2 | Published November 25, 2020

Under the Constitution, each house is the final judge over any dispute related to the election and seating of members.  Fortunately, this power is only rarely invoked.  But we may be facing one (or more) of those rare instances this year.

As this post is going live, we are in the midst of a recount for Iowa’s second congressional district.  Each county is individually certifying their recount.  Most of the counties have certified the new numbers, but a handful have not yet made their numbers official.  Based on the official numbers from the counties that have certified the recount result and the original count from the remaining counties, the margin is 35 votes.  But unofficial reports from the remaining counties show a swing of 36 votes which would mean that the Democrat would win by 1 vote.  Of interest in Iowa is the law governing recounts.  The law allows each county to choose between a hand recount or a machine recount or, maybe, a hybrid recount (in which ballots which are kicked out as overvotes or undervotes are examined to see if there is a valid vote).    These differences between the counties means that the final result from Iowa will differ from what a full hand recount would have shown or what a full machine recount would have shown.  And that invites further review.

Likewise, it seems like the race in New York’s twenty-second district is also close.  Because New York counties are not required to report interim counts, we will not know the final counts officially until all of the counties certify their results.  Some of the counties have officially released their current counts, but, in other counties, reporters are relying on sources to report the state of the count.  It appears that the race in New York is as close or almost as close as the race in Iowa.  Currently, final results are up in the air as the courts have been asked to review provisional ballots to determine which ones should be counted (and, apparently, one county used post-it notes to distinguish between the already counted ballots and the rejected ballots and those post-it notes fell off in transport). Continue Reading...

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Post-Election Terminology

By tmess2 | Published November 22, 2020

During the extended count and litigation, we are hearing a lot of terms tossed around that are usually the special reserve of election law geeks.  So here is a quick primer on some of these terms.

Audit — This term typically covers the process of double-checking the count.  While not every state does an audit, and the audit process differs from state to state, there are some aspects that are shared by several states.  First, the most simple audit is simply a check that the machines are functioning properly.  This typically involves a “test deck” with a known count to see the machine records the count correctly.  Second, several states do a hand count of random precincts and random races.  As with the test deck, the hand count is to make certain that the machines are roughly correct. Of course, a hand count will pick-up some ballots that the machine is unable to read.  If this part of the audit reveals a significant deviation from the machine count, it can be expanded to cover more precincts and more races.  Third, some states do other types of machine tests to verify the programming.  Fourth, depending on the state, an audit might include checks to make sure that the counts of ballots and voters match.

Canvass — This term is somewhat slippery as it is sometimes used to refer to local processes and state processes and often includes the certification process.  At it’s most simple, it refers to the local process of reviewing ballots — primarily absentee and provisional — and making sure that the vote totals from all precincts and voting centers are accurately recorded.    If there is time, the canvass can include an attempt to resolve any discrepancies in the counts of ballots and voters. Continue Reading...

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Staffing a Government

By tmess2 | Published November 17, 2020

Every four to eight years, one of the first questions after most presidential elections is who will occupy the key positions in the new administration.  And there are a lot of positions to be filled.  In reality, most of the day-to-day decisions that directly impact individuals are made by careerists.  But the key policy decisions that ultimately guide those day-to-day decisions are made by the political appointees.  Generally speaking, U.S. law recognizes two types of political appointees — those that require Senate confirmation and those that do not.

For the most part, positions that do not require Senate confirmation are typically part of the White House staff.  There are other positions that do not require Senate confirmation (in the phrasing of the Constitution — “inferior officers”) who answer to Senate confirmed appointees, but recent years have seen a lot of legal wrangling about what positions can constitutionally be appointed by the president or Senate-confirmed officers without Senate confirmation.  Prime examples of staff positions that do not require Senate confirmation include the Chief of Staff, the National Security Advisor, and the Press Secretary.  What unifies all of these positions is that their legal authority is limited to advising the President (or an agency head).  The key thing about positions that do not require Senate confirmation is that they have no legal authority to make policy decisions on their own behalf.  The can recommend policies to the President or to some agency, but the President or the agency head has to sign off on the recommendation.  And for the most part, the early announcements that we have had from President-Elect Biden and his transition office are White House staff positions that do not require Senate confirmation.

In recent administrations, we have seen the creation of certain staff positions with broad policy areas of responsibility (often referred to in the media as Czars).  Conservatives tend to carp about these positions during Democratic administrations while going curiously silent during Republican administrations.  The reason for these positions is that, due to the problems with filling Senate confirmed positions, presidents need people with policy expertise to fill the vacuum until the appropriate Senate confirmed postitions can be filled. Continue Reading...

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Where Things Stand

By tmess2 | Published November 15, 2020

In part because of one sore loser, this year’s election seems to be the one that will not end.  And that means that almost any post based on current information is no longer accurate several days later.  As noted in previous posts, there are three big questions:  1) when are absentee ballots due; 2) when will the vote be certified; and 3) what states might be subject to recounts.  There is also the never-ending litigation being filed by the Trump campaign.

At the present time, California is probably the biggest state in which we are still waiting for late absentee ballots with a deadline of Friday.  At the time that I am writing this post, the margin in the Twenty-Fifth District is less than 100 votes; so late arriving ballots could be a key.  In addition, a recount is a real possibility.

The other big state in which there remains a significant number of ballots to be counted is New York.  At the present time, Democrats have apparently lost the Eleventh District (Staten Island).  There are three Democratic districts that have not been called, but Democrats now lead in two of the three.  There are also two Republican districts that have not been called, but the Republicans have significant leads in both.  Whether the remaining votes will actually swing the districts is unclear. Continue Reading...

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What Comes Next?

By tmess2 | Published November 11, 2020

We are entering uncharted territory in the U.S. Presidential election.  Moscow Mitch is technically correct that the President has the right to avail himself of all legal remedies related to challenging the election results.  But that’s not saying much.  Technically, I have the right to file an election contest in my state challenging the results of several issues that were on the ballot last Tuesday.   But I have no valid legal claims (or at least no evidence supporting any of those claim), and I would be facing sanctions for filing a frivolous case if I tried.  Apparently, the president of the United States is exempt from the rules requiring a good faith basis for filing a case.

The closest that we have been to this type of obstruction was 2000 in Florida.  Of course, in 2000, the election came down to one state, and that state was close enough to trigger an automatic recount.  And where things went off the rails was that the parties could not agree on the proper way to conduct that recount.  As a result, it is debatable whether there ever was a proper recount in Florida.

At least until Trump surrenders, there are two different lines by which things will progress.  The first involves the Presidential Transition Act.  Under the provisions of that act, there is a transition process which includes office space, the ability to employ staff, and access to government materials for the president-elect and vice-president elect.  The key part of the act for the current situation is the triggering language which relies upon the determination of the Administrator of the General Services Administration.  Under that language, those rights trigger upon the determination of the Administrator of the “apparent successful candidate” in the election.  The big problem with the act is that it does not define how the Administrator determines who is the “apparent successful candidate.”  And, in the past, this provision has not been an issue.  In the first fourteen elections held under the Act, the identity of the apparent successful candidate has been clear within forty-eight hours of the election in thirteen elections.   The only exception, as noted above, was 2000 in which it was clear that there was no apparent winner until Florida could complete its recount.  If, as appears to be the case, President Trump has made clear that the Administrator of the GSA should not recognize apparent President-elect Biden as the apparent President-elect, then this dispute may require a petition for writ of mandamus.  (A writ of mandamus compels an official to comply with a ministerial duty.)  The big issue in such a case would be the proper standard for the exercise of the duty and whether that standard is clear enough to give rise to a ministerial duty in this case.  Of course, the risk is that a court might decline to issue the writ because the law lacks any precise standard.   The Biden Transition Team will have to balance off the risk of a bad result in a case against the reality that President Trump and the Administrator of the GSA seem intent on ignoring both the language and the spirit of the Presidential Transition Act. Continue Reading...

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Affordable Care Act Back at the Supreme Court

By tmess2 | Published November 8, 2020

Now that we know that our long national nightmare is almost at an end, it’s time to return to looking at the mess that he has left behind.  And on Tuesday, the Supreme Court will be looking at one of the messes that Trump created — the continued validity of the Affordable Care Act.

While the exact issue arises from the “Cut Trump’s Taxes” tax legislation passed in 2017 by some very unusual procedural maneuvers, the core of the issue comes from the Court’s decision upholding the Affordable Care Act, in part, in 2012.   Extreme conservative lawyers are partially right about that decision.  It was an atrocious decision, but not for the reasons identified by the far right.

For seventy-five years, from 1938 to 2012, the Supreme Court had taken a very expansive view of the Commerce Clause (which allows the federal government to regulate interstate and foreign commerce) and the Necessary and Proper Clause (which allows the federal government to pass legislation that is related to the fields expressly allocated to the federal government).  This interpretation is what allows the federal government to criminalize the growing of marijuana for personal use or street level drug offenses.  Somehow, the Supreme Court decided that even though people with health insurance (or without health insurance) may travel in interstate commerce and have to use that insurance in other states, the individual mandate was not authorized by either the Commerce Clause or the Necessary and Proper Clause.  Now, if the Supreme Court had struck down the Affordable Care Act (requiring the average American to purchase health insurance), Congress would have had to turn to an alternative like a single payer system.  So, the Chief Justice wanting to both deliver a victory for the far right (by selectively restricting the scope of the Commerce Clause) without destroying the insurance industry found an alternative justification for the Affordable Care Act — classifying the individual mandate as a tax authorized by Congress’s power to raise taxes. 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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15 Years of Democratic Convention Watch

By Matt | Published November 7, 2020

Today marks the 15th anniversary of the founding of Democratic Convention Watch. My thanks to all our bloggers, and all our readers, for your support over the years.

Here’s our first post.

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A recount primer

By tmess2 | Published November 6, 2020

We are now moving into the universe where aside from spinning fictional conspiracy theory, Donald Trump is, for all practical purposes, down to recounts to keep his slim hopes of avoiding an orange jump suit alive.

As with everything else about this election that we have talked about over the past three weeks, the basic rules for recounts are set by state law.  So looking at the states in which Trump is most likely to ask for a recount, here are the rules.

Arizona — In Arizona, the margin must be less than 0.1%.   Any such recount is automatic, and a candidate is not able to request a recount.  Assuming a final vote total of slightly under 4 million votes, the margin would have to slip under 4,000 to have a recount.  Apparently, in Arizona, the recount is done by rerunning the ballots through counting machines. Continue Reading...

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