Monthly Archives: January 2021

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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Notes from your Doctor: Covid-19 Updates

By DocJess | Published January 25, 2021

The news about the coronavirus and various treatments and vaccines was rather dour yesterday. Luckily, as individuals we can hear and understand that knowledge and use it to inform our actions to, as best as possible, protect ourselves and our loved ones.

Variants and Mutants

  • It appears that the British variant is not only more transmissible, but also potentially more deadly.
  • The Brazilian mutant has been found in a patient in Minnesota.
  • There appears to be a “home grown” variant in California that may have contributed to the large explosion of cases and deaths.
  • The South African mutant appears to be afforded neutralizing effects by the Moderna vaccine, but potentially not by the Pfizer one. Moderna is developing a booster just in case.

Vaccines

  • AstraZeneca is going to announce to the EU version of the FDA that it is only 10% effective for people aged 65 and over, meaning it will not be approved in the US.
  • Merck has ceased work on its two vaccines as they are not showing efficacy in Phase 1 and 2 trials.
  • Johnson & Johnson may announce that they are seeking FDA Emergency Use Authorization in 2 – 3 weeks.
  • Novavax is about a third of the way to their Phase 3 target enrollments, and their protocol called for a large number of people over age 65. They are starting to see requests from participants to be unblinded, and the rate is double amoungst those over age 65.
  • West Virginia has the highest percentage of vaccinated population, mostly because they are NOT using chain pharmacies for distribution. When we look at roll out percentages, comparing State, hospital and pharmacy penetration, pharmacies outside of West Virginia do the worst.

What does it mean when something is “More Transmissible”?

I get this question a lot, and I am going to explain it in simple, non-medical terms. Think of someone smoking a cigarette, and of “transmissible” as how much smoke you can smell.

If you are outside on a windy day, you may smell a whiff of smoke from a single cigarette. The further away it is, the less you smell. You may not even see the smoke itself to smell it. Continue Reading...

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The Last Race

By tmess2 | Published January 24, 2021

Before we head into several special elections to fill vacancies, there is still one Congressional race to be decided (putting aside any election contests that are pending in the House).  That race is New York’s Twenty-Second District.   What is happening in upstate New York is (and should be) an embarrassment.

The problem in the race is absentee ballots and “affidavit ballots” (what most states call provisional ballots).  In New York, the duty for canvassing such ballots — determining which ones are valid and counting them — falls on county boards of election.  If a candidate disagrees with the ruling of the board of election, the candidate can object to that decision and file a petition with the local “supreme court” (the trial court in New York).  The board of election is then required to make a record of the objection and submit that ballot to the court for review.

In conducting his review, the trial judge found that all of the county boards (eight counties are fully or partially in the Twenty-Second District) had failed to handle the canvass process properly, but the biggest failures have been in Oneida County.  Originally, the Oneida County Board simply rejected all affidavit ballots without even examining them.  The trial court had ordered the board to actually canvass these ballots. Continue Reading...

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President Biden

By Matt | Published January 20, 2021

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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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Census Shenanigans

By tmess2 | Published January 17, 2021

In theory, a President is still President with the full powers of the office until the last second of the term.  In practice, the powers of a president in the last weeks in office are somewhat limited.  Any legislative priorities that could not get through the previous Congress are unlikely to be rushed through by the new Congress.  (In fact, most times, Congress will spend much of the seventeen days between January 3 and January 20 in the necessary work of organizing rather than focusing on legislation.)

On the foreign policy front, it doesn’t take a Michael Flynn violating the law for our allies and adversaries to know that any decision made by the outgoing president can be quickly reversed by the new president.  In short, the outgoing president really is unable to make the type of long-term commitment that would encourage another country to make a deal.

So that leaves a president with actions that can be taken by the president alone.  Not surprisingly, the typical president is giving final approval to regulations and giving pardons and commuting sentences.  The enactment (or repeal) of regulations is a time-consuming process under the Administrative Procedure Act, and the new Administration is unable to simply set aside the last minute regulations.  (In part to deal with this problem, it is possible for Congress to reject these regulations.)  And a pardon or commutation is irreversible. Continue Reading...

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Impeachment vs. 14th Amendment vs. 25th Amendment

By tmess2 | Published January 16, 2021

Up until his very last minute in office (and beyond it), Donald Trump is making history in ways that his descendants will not like.  In fifty years, instead of saying that a person’s name is Mud(d), we might be saying that his name is Trump.

Right now, there are three possibilities being discussed in D.C. and on op-ed pages.  Each have some legal questions associated with it.

The first option — which seems dead in the water as the Cabinet and Vice-Coward Mike Pence seem to be reluctant to take responsibility for suspending Trump’s presidency is the Twenty-Fifth Amendment.  Many constitutional amendments are simple establishing one basic rule.  E.g.  authorizing or repealing prohibition, giving women the right to vote).  Others, like about half of the bill of rights, have multiple related but separate concepts (e.g. First Amendment covering freedom of speech, freedom of religion, and freedom of assembly).  The Twenty-fifth Amendment is one of those multi-part amendments addressing several aspects of presidential succession. 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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Section 230 — What’s next?

By tmess2 | Published January 7, 2021

One of the unresolved issues from the Trump Administration, which in part reflects the lack of nuance in Trump World, is what to do about Section 230.  Section 230 refers to a statute enacted back in 1996 as part of the Communications Decency Act which is currently codified at Title 47, Section 230 of the United States Code.

As currently written, Section 230 is a response to some basic principles of defamation law.  Generally speaking, a publisher (whether of books or newspapers) or broadcaster is responsible for the content that they publish or broadcast.  Thus, if I am Harper Collins Publisher and I publish a tell-all book written by a former White House aide, I am potentially liable if that book contains false information.  Similarly, if I am your local newspaper and I publish a letter to the editor or an ad in my paper, I am potentially liable if the letter to the editor or ad contains false information.  And if I am a television station and I broadcast an ad or a program which contains false information, I am potentially liable.  All of these entities are, usually, very selective in what they print or publish.  They either decline something that is potentially defamatory or they do what they feel is necessary to verify the allegations before publishing.

Now back in the 1990s, the internet was still in its infancy.  And many websites were letting users post content.  What is currently Section 230 arose from competing desires.  On the one hand, Congress wanted to create a mechanism that would permit those entities which were establishing the website to remove obscene content or content that violated somebody’s intellectual property rights.  On the other hand, website providers were concerned that playing any role in editing content would make them “publishers.”  The solution was contained in Section 230 (c).  That subsection contains three basic provisions.  First, the website owner would not be considered the publisher of any information posted by another on its website.  Second, the website owner would be immune from liability for any good faith efforts to restrict access to obscene or objectionable material (even if the material might be constitutionally protected).  Third, the website owner could also opt to provide users the ability to block access to certain materials. Continue Reading...

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The Count

By tmess2 | Published January 3, 2021

To quote the Grateful Dead, “what a long, strange trip it’s been.”  Our hopes for a decisive enough result that the winner would be clear on November 3 failed to come to fruition.  And since then, Trump and his allies have thrown everything but the kitchen sink into denying reality.  Even as late as this week, Trump’s allies have been filing meritless cases to try to have judges cancel the votes in various states.  And almost all of the case have been rejected by the courts.  To date, the Supreme Court has not accepted any cases, and have left most cases proceed on the normal schedule (which means no decisions on taking any of them prior to January 8 when the Supreme Court next meets).

That leaves us down to one last abuse of the legal process — the joint Congressional session to count the electoral votes sent by the states.  The current process dates back to the aftermath of the election of 1876.  In that election, you had a handful of states with conflicting results certified by different entities.  As such, you had multiple states sending votes from individuals that had been recognized by some part of state government as the official electors.  Ultimately, a commission was established to resolve those disputes.  While it took around a decade to get legislation through Congress, the Electoral Count Act of 1887 set forth the key provisions that are still in place today.   The current language in Title 3 sets forth a multi-stage process.

First, prior to election day, each state legislature shall set forth the rules governing the selection of electors.  These rules besides designating who makes the selection also dictate the procedures to be followed during that selection, the role to be played by various state agencies (legislatures, state election authorities, and local election authorities) in running the selection process, and who has the power to resolve disputes that might arise during the selection process (courts, state election authorities, local election authorities, and legislatures).  While the Constitution does not mandate the use of the popular vote to select electors (and, in the early days, some states had the legislature pick the electors), every state has now opted for using some variation of the popular vote to pick electors.  And every state has adopted procedures in which the initial resolution of election disputes are made by local election authorities and state election authorities with the potential for judicial review of those decisions. Continue Reading...

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