Tag Archives: Pennsylvania

The Supreme Court and Elections — Post 2020 Editions

This past argument session (the February Session) saw the last gasps of the 2020 election.  There were three very different issues on the table:  1) the Trump attempts to overturn the election for alleged failure to follow election procedures: 2) the role of state legislatures, state election officials, state courts, and federal courts in setting the rules for election; and 3) the Voting Rights Act.

On the first issue, there are apparently two cases still pending at the U.S. Supreme Court — one a Wisconsin case that will likely be turned down on the March 8 order list and the other will not be considered until later (either the March 19 or March 26 conference).  The second one is a Pennsylvania case involving the issue discussed below.  Assuming that the Wisconsin case is denied, the Supreme Court will have denied Trump’s requests for review in all of the cases involving alleged fraud in the election over the past several weeks.

The second issue is likely to arise again.  Article I, Section 4, Clause 1 gives the primary authority to set the “times, places, and manner” of congressional elections to the “legislature” of each state subject to the ability of Congress to also legislate on these issues.  Similarly, Article II, Section 1, Clause 1 gives the power to direct the “manner” of choosing electors to the “legislature” of each state.  In recent years, there has been a significant amount of litigation involving these clauses.  There are two key legal questions:  1) what is the scope of “manner”; and 2) what is the “legislature.” Continue Reading...

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2022 Elections — A First Glance

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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Electoral College

One of the often misunderstood aspects of U.S. elections is how the popular vote relates to the election of the President.  While, in the majority of the states, the ballot simply lists the candidates for President (along with the Vice-Presidential running mate), voters are effectively voting for a slate of electors.  The winning slate in each state then assembles on the first Monday after the second Wednesday in December at the location and time designated by that state.  After assembling, the electors for the state cast a vote for President and a vote for Vice-President.  The votes are then counted, and the electors complete six certificates of vote recording the votes of the electors for that state.  Each certificate of vote is paired with one of the previously completed certificates of ascertainment.  Federal law then directs what happens with the six certificates of vote with one going to the President of the Senate (in practice, the clerk of the Senate), two to the national archives, two to the secretary of state of the individual state, and one to the federal district court for that state.

Normally, the meeting of the electoral college is a big ceremonial event.  With Covid-19 and the potential for protests to get out of control, it appears that most of the states are planning on holding scaled-down events.

The fringe element of Trump supporters (and President Putin) are hoping for some last minute drama for Monday, but that is practically impossible for several reasons.  First, earlier this year, the U.S. Supreme Court upheld state laws requiring electors to vote for the presidential candidate to whom they are pledged.  While states have different laws on so-called faithless electors,  the net effect of those laws is that sixty-nine Biden electors are from states that replace an elector and cancel the electors vote if the elector fails to follow through on their pledge, sixty are from states that fine the elector, seventy-one are from states with pledges but no enforcement provision, and one hundred six are from states with no law on this issue.  That means that, at most, there are 237 Biden electors who could defect. Continue Reading...

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Safe Harbor Day — UPDATED

Whether it is just the weirdness of 2020 or the narcissism of the Orange Menace, this post-election period has been about key dates and events.  Over the past four weeks or so, one by one, despite unsuccessful attempts to have courts intervene to block them, states have certified the results of the presidential election, and the remaining states are set to do so on Monday or Tuesday.   Once the appropriate authority within the state has certified the results of the presidential election, the governor is to complete and mail to the National Archives a “certificate of ascertainment.”  As of today’s date, the National Archives has received just under half of these certificates.

Now normally, this process is routine.  It happens, and only political geeks pay attention.  But because Trump and his “lawyers” refuse to face reality, we are now facing an event that has only really mattered once before in U.S. history — the safe harbor date.   If a state has concluded any dispute related to electors by six days before the electors meet, the determination by the state is “conclusive.”  In 2000, the U.S. Supreme Court used this language to find that Florida wanted all election contests to end by the safe harbor date.  The 2000 election is the only time that we have faced the safe harbor date having any meaning.

But we are back in that boat again.  And this year, the safe harbor date is Tuesday, December 8.    Despite Trump’s attempt to cast this election as a repeat of 2000 with the Supreme Court intervening to decide the election if necessary, what is happening in the courts does not support that alternate reality. Continue Reading...

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A recount primer

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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Election Night Preview — Part 2 (8 PM to 9 PM EST)

As noted in the previous post, by 8 p.m. Eastern Standard Time, we should have a significant amount of precincts being reported in the two earliest states (Kentucky and Indiana) and should be starting to get some counties reporting votes in Florida, Georgia, South Carolina, Virginia, and Vermont.  During this hour, the counts in those states should be increasing.  By 9 p.m., we should be seeing either some projection in those states or an indication that the states are too close too call.  We may also be getting an indication in some of those states of how many absentee votes might remain to be counted (which could determine whether it will be possible to make any projection in those states on election night).

While it would be nice if we could get calls in a state like Virginia early in this hour, the bigger question as the hour goes will be the types of swings that we are seeing in these states.   Virginia in 2016 was a leading indicator as we were just not getting strong results compared to 2012.  So as this hour goes along and the networks start looking at the maps of the state, the key thing to pay attention to is how the numbers are comparing to 2016.  Even if the networks aren’t comfortable in calling a state yet, if the results are showing that Trump is underperforming in red parts of a state (i.e. rural counties) and Biden is overperforming in the suburbs, then that is a good sign for the rest of the evening as Trump only one by the slimmest of margins in 2016 and any erosion in his support could prove fatal.

This hour has the most states close.  You have partial closures in Florida (the rest of the state closed an hour earlier), Kansas, Michigan, South Dakota, and Texas.  While a significant part of South Dakota will close an hour later, the polls close for most of the population in Kansas, Michigan, and Texas at 8 p.m. Eastern.  In addition to these states, polls for the entire state close at 8 p.m. Eastern in Alabama, Connecticut, Delaware, D.C., Illinois, Maine, Mississippi, Missouri, New Hampshire, New Jersey, Oklahoma, Pennsylvania, Rhode Island, and Tennessee. Continue Reading...

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2018 Midterm Election Preview-Mid-Atlantic

If the Democrats win a majority in the House of Representatives, the Mid-Atlantic region (especially New Jersey and Pennsylvania) will play a significant role.  Just two years ago, the Republicans had thirteen of the eighteen House seats in Pennsylvania and has six of the twelve House seats in New Jersey.   After picking up one House seat in New Jersey in 2016 and one House seat in Pennsylvania in a special election earlier this year, Democrats are posed for major gains in this year’s election.  The other states are a little less likely to see major changes.

Starting up north in New York, New York has a race for Governor, a race for Senator, and 27 House races.  Democrats should easily win the state-wide races and keep their current seats.  Picking up Republican seats, however, will not be easy.  It looks like the Democrats should gain at least one seats, but there is a real chance at gaining as much as five seats.  The most interesting race will be New York’s Twenty-seventh District where Republican crook Chris Collins is standing for re-election.  Collins is on the ballot mostly because New York law did not allow the Republicans to replace him.  The race may come down to how many Republicans vote for the Reform Party candidate.

New Jersey is where things can flip dramatically.  In barely two years, the Congressional delegation could go from evenly divided to 11 Democrats and 1 Republican.  Senator Menendez is in potential trouble given his recent scandals.  He has an opponent who has just as many issues but also a very big wallet. Continue Reading...

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Thinking 2021

One weakness that the Democratic Party has had over the years is getting loosely attached Democratic voters to think beyond the current election.  But many components of the political system elect members in staggered elections (e,g,, the U.S. Senate); so gaining the ability to pass your legislation requires a multi-year plan.

While in the weeks ahead, posts on this site will undoubtedly focus on the race for power in D.C., this post is about the other offices that will be on the ballot in November — state positions.  In less than nineteen months, residents of the U.S. will receive and then return their census forms for the 2020 census.  In slightly over two years, the Census Bureau will release the numbers from that census to the states which will then begin anew the process of drawing the political maps that will control U.S. House (and state legislative elections) between 2022 and 2031.  And some of the people elected at the state level this November will still be around in 2021 to vote on these new maps.

The big office in most of the states is governor.  There are 36 governor’s offices up for election this cycle with Republicans currently holding 26 of them.  In 34 states, the term of office is four years; so the winner this year will be around in 2021.  (In two states — New Hampshire and Vermont, both held by Republicans — the term of office is two years; so we will get another shot at removing the Republican in 2020 and only New Hampshire is likely to have multiple congressional seats after the 2020 census.)   In some of these states — Arizona, California, and Iowa — the redistricting process minimizes the influence of the governor or legislature; so, while — for other reasons — holding California and picking up Arizona and Iowa would be useful, they will not have a big impact on redistricting in 2021.  There are also some states that currently only have one representative in Congress eliminating the need for Congressional Districts — Alaska (Independent); South Dakota (Republican), and Wyoming (Republican).  Even after eliminating these states, you have twenty states held by Republicans and eight states held by Democrats in which the winner of the 2018 election for governor will be around in 2021 and have the power to veto or sign any proposed congressional map. Continue Reading...

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Pennsylvania Redistricting

Monday, the Pennsylvania Supreme Court issued an order (with attached maps) redrawing the Congressional Districts for Pennsylvania  This order follows on last month’s decision finding that the 2011 map violate the Pennsylvania Constitution as a partisan gerrymander.  The United States Supreme Court is currently considering two cases — one argued last fall and one scheduled to be argued next month — on whether the U.S. Constitution also bars partisan gerrymanders.

I will leave it to our local experts to follow up on exactly how the new lines should impact November’s election.  The key points to make for now are:  1) this map will govern this year’s elections as filing with the Supreme Court’s including a time table for implementation of the order and candidate filing that will allow the primary to take place as scheduled; 2) the old maps were gerrymandered in such a way that the Republicans have carried 13 of the 18 districts (and the same 13) in each of the three elections so far under the old map (even though the Democrats won state-wide by 5% in 2012 and 9% in 2014 and barely lost in 2016);  and 3) in the three elections under the old map, 37 of the 39 Republican wins were by double digits (the other two involved margins of 9% and 4%).   The early numbers that I have seen from national prognosticators is that Democrats should pick up at least two seats in a 50-50 cycle and, in a cycle in which Democrats get 55% or more nationally, the Democrats would pick up an additional 2 to 3 seats (a 9-9 split or 10-8 in favor of the Democrats).  That compares to 2012 in which the Democrats got 53% nationally but still only won 5 seats in Pennsylvania.

One thing that is significantly different about the new map is that there are less weird shapes, and most of the weirder shapes in the new map comes from not splitting counties or municipalities unless such splits are absolutely necessary to maintain equality.  There is also some changes in the numbering.  As a result, some incumbents (including whomever wins the upcoming special election in Western Pennsylvania) will have to decide what district they will run in this year.  Some incumbent may be looking at a situation in which either: 1) their base is split between multiple districts; 2) they live in one district while the heart of their old district is in another district; 3) their new district contains a substantial portion of the old district of another incumbent.  As such, sitting members may have to decide between retiring, challenging another incumbent from their party, or running in a district in which they will have a difficult time running.  We may not know until filing closes on March 20 (one week after the special election) how the incumbents will reshuffle from the old seats to the new seats and whether we will have any incumbent vs. incumbent primaries or general elections.

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Election Night 2016 — What to Look For (Part Three)

animated flag glitterAs evening turns into night in the Eastern and Central time zones, the pace picks up.  For whatever reason, 8:00 p.m. is a popular time for states in the Eastern time zone to close their polls as is 7:00 p.m. in the Central time zone.  As discussed in part two, lines at the polls means that the networks typically only have enough results to call races if the races are not close.  Most of the states that will be called by 8:00 p.m. are not the races that will decide the election.  Because most of the polls will have been closed for two hours, there is a good chance that the Indiana senate race may be called by 8:00 p.m.  There is some chance that Georgia (an at-risk state that Trump needs to win) or Virginia (an at-risk state that Clinton needs to win) will be called before 8:00 p.m.  Sixteen states will close their polls at 8:00 p.m. as will the polls in part of several other states.  While the results from the early states give some clues about the shape of the race, the shape of the race will become much clearer when the returns from these states start to come in.

8:00 p.m. (EST) — The remainder of the polls close in Florida.  The polls close in Alabama, Connecticut, D.C., Delaware, Illinois, Maine, Maryland, Massachusetts, Mississippi, Missouri, New Hampshire, New Jersey, Oklahoma, Pennsylvania, Rhode Island, and Tennessee.  The polls close in the eastern part of Michigan, Kansas, South Dakota, and Texas.  Several of these states should have quick calls for president, but several states are key states for the outcome of this election.  (Assuming that none of the “close” states from early are called by 8:15 p.m., the projected electoral vote should be approximately 76 for Trump and 55 for Clinton.)

Continue Reading...

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