Social Media and the Supreme Court — Round 1

By tmess2 | Published March 18, 2024

One of the downsides of the legal system is that the final say on how laws apply to new technologies tend to fall on a group of older lawyers.  In other words, most of the votes are in the hands of people who are not on the cutting edge of technology.  This year, there will be several cases before the Supreme Court involving social media.  To put things in perspective, the four youngest justices essentially went to law school either while I was going to law school or right after I went to law school.  At the time that I was in law school, most students did not have e-mail accounts, and we were using very early versions of Word and WordPerfect as our software for writing papers and exams.  Needless to say, sites like Facebook and X were not part of our law school and college experiences.

This past week, we got the first of the social media cases for the year — actually two separate cases raising the same issue — whether a public official can block individuals from commenting on the official’s social media webpages.  When faced with novel issues, judges tend to try to fall back on existing legal doctrines even if that means forcing round pegs into square holes.  And to a some extent that is what we got in the lead case — Lindke vs. Freed in an actual unanimous opinoin written by Justice Barrett.

The basic facts of this case is that the webpage in question was the personal account of the public official.  The official had this account before running for and winning his current position.  However, he does not his public position on the account similar to how many people not their employment.  And he does use his webpage to mention what is going on with that position.  The people on the other side of this case took advantage of the comment feature of the webpage to critique what the city government was doing.  The public official deleted some comments that he thought were inappropriate or inaccurate before eventually blocking these individuals from commenting.  The people who were blocked brought a case claiming that, by blocking them, this official was violating their First Amendment rights. Continue Reading...

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Primary Elections — Week of March 18

By tmess2 | Published March 17, 2024

With the presidential nominations effectively wrapped up, the focus of primary season shifts to Congress.  States face conflicting incentives in terms of primary scheduling.  First, for presidential primaries, an early primary increases the chance that a state will vote before the nomination is effectively decided.  But, especially a state with a part-time legislature that only meets in the Spring, a Summer primary allows the legislature to wrap up its business (with appropriate goodies for the districts of favored legislators facing a tough race) and gives the legislators time to spend back in their district campaigning.  Second, it saves money for a state to combine presidential primaries with the primaries for other offices.  Thus, only some of the states with early primaries for president also have the primaries for other offices on the same day.

This week, three states have primaries for “other” offices.  The first is actually a special election.  That election is to fill the seat created by Kevin McCarthy deciding that he did not want to return to just being a member of the House after he lost the vote of no confidence (technically motion to vacate the chair) last fall.  For regular elections, California uses a “top two” primary in which, regardless of the vote for the leading candidate, the second-placed candidate advances to the general election.  For special elections, if the leading candidate gets a majority, that candidate wins.  If not, there will be a runoff between the top two candidates.  Two weeks ago, there was the regular primary for the seat.  Given how long it takes California to process its ballot, the race for second place is still too close to call.  Given that most of the votes remaining appear to be from the county in which the current third-placed candidate finished ahead of the second-placed candidate, the primary may actually be recount close.  Right now, the “second” Republican is still in second place.  That should discourage Republicans from unifying behind the current leading candidate in the special election (as supporters of the Republican currently in second have hopes that their candidate will make the general election and do not want to make the leading candidate the incumber candidate).  As the leading candidate did not get a majority in the primary, there is a good chance that there will be a runoff in this race.  If the leading candidate (Kevin McCarthy’s handpicked candidate, Vince Fong) can get the majority, the Republicans get this seat back.  If not, it remains vacant until after the runoff in two months (probably keeping the seat vacant through June).  Needless to say, the Republicans in Washington are praying for an outright winner on Tuesday.

The next state on the list is Ohio.  In recent years, ticket splitting has declined, and it has become harder for a Congressional candidate to win a state/district that voted for the presidential candidate of the other party.  Currently, there are only senators (three Democrats and two Republicans) representing states won in 2020 by the other party.  The three Democrats are up for election this year.  Joe Manchin of West Virginia has decided that, despite his personal popularity in his state, the presidential margin is just too much to overcome.  That leaves Jon Tester of Montana and Sherrod Brown of Ohio to face their voters this year.  Given that Ohio has been getting redder in recent years, Republicans are hopeful that whomever they nominate might win the seat in November to give the Republicans a senate majority.  But with Republicans thinking that they can win, the primary attracted multiple candidates.  The race originally looked like a three-person race.  Objectively, if Republicans wanted somebody ready to be a senator, the obvious choice would be the current Secretary of State, Frank LaRose.  But serving in an executive position requires actually following the law.  And, while Secretary LaRose has definitely put his thumb on the scale as much as he can, those decisions disqualify him for “purists.”  Neither of the other two candidates would be a strong contender if the Republican primary was being held in the real world.  With Secretary LaRose struggling, the establishment has unified behind Matt Dolan.  What Mr. Dolan has going for him is that his family is wealthy, and he has been willing to spend enough of his own money to be competitive (both this cycle and two years ago when he put up a solid fight in the primary for the other seat).  The Trump candidate is Bernie Moreno.  As was the case back in 2022, for Democrats choosing to participate in the Republican primary, the question is whether to vote for the weaker candidate (Moreno) to increase the odds of winning in the general election or to vote for the sanest candidate (Dolan) just in case Brown loses in November.  The national party has run adds attacking Moreno as too extreme in the reverse psychology ploy to get Republicans to commit political suicide by nominating Moreno. Continue Reading...

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St. Patrick’s Day Convention Update

By Matt | Published March 17, 2024

Here’s the latest news:

  • In a huge surprise, Joe Biden and Kamala Harris will be nominated for president and vice president in Chicago this summer.
  • NBC 5 Chicago reports on the three Black women leading preparations for the convention.
  • State delegation hotel assignments have been announced.
    • But no state is assigned to the non-union Trump International Hotel and Tower! However, Fox News can stay there if they want.
    • All delegation hotels are withing 5 miles of the convention venues, one of the reasons Chicago will remain an attractive host city for future conventions (assuming no repeat of 1968).
    Security funding of $75 million for each convention was approved in the latest budget agreement, increased from $50 million where it had been for a number of cycles. And security preparations continue:

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The Supreme Court’s Ballot Access “Decision”

By tmess2 | Published March 10, 2024

Earlier this week, the U.S. Supreme Court issued a 9-0/5-4 decision in Anderson vs. Trump — the Section 3 case out of Colorado.  The majority opinion was a textbook example of the problem with originalism as the three opinions attempted to divine what the framers of the Fourteenth Amendment would have wanted a court looking at this issue to do.  The opinion was NOT a textualist opinion.  Instead, it was an ahistorical attempt to reason how the Congress that proposed (and the state legislatures that ratified) the amendment would have thought the rule would be for this type of case.

To understand the problem,  we first need to understand the “real” world of the 1860s.  Elections were run differently back then.  Today, every state uses a variation of the “Australian ballot.”  The essence of the Australian ballot is a pre-printed unmarked ballot containing all of the names of all of the candidates for all of the offices which the voter marks in the voting booth.  Prior to the adoption of the Australian ballot, depending on the state and location, votes were either public or involved a paper ballot.  In states with paper ballots, “party” newspapers (or the party itself) printed the party’s “ticket” — a ballot with all of the offices with only that party’s candidate for the office listed.  In other words, candidates did not file for office with the election authority prior to the election, and there was no official ballot.  Thus, even when the local party put forward an ineligible, there was no means to disqualify a candidate before that candidate won.

In this type of system, by necessity, any challenge to the eligibility of a candidate had to come after the election.  There were two ways to challenge the eligibility of candidate/office holder.  First, one of the other candidates could file an election challenge (assuming that state law permitted such a challenge).  While, in some states, this might have been a viable method  for challenging a local official, it works less well (even today) for those elected to state legislatures and federal positions.   In many states for the state legislature and for Congress, the final say on the validity of election results rests with the legislative body (either Congress or the respective state legislature).  As we saw back in 2008, even on an expedited basis, there is not enough time for an election dispute to go through the court process before the new term begins.  Not surprisingly, in the 1860s and 1870s, if a former Confederate were elected to Congress, Congress handled the matter by not seating the new member of Congress rather than state courts resolving the issue.  As there was never an ineligible person who received any electoral votes for president, there simply is no historical precedent for how Congress would have handled that issue. Continue Reading...

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Super Tuesday Convention Update

By Matt | Published March 5, 2024
  • Applications for a Summer Internship with the Chicago Host Committee are being accepted.
  • Sign up to volunteer at the convention here.
  • Here’s some surprising news: If you give a lot of money to the Democratic Convention, you’ll get a nice hotel room and great seats in the arena!
  • The CNN-Political Grill is coming to Milwaukee and Chicago this summer.
  • And Chicago security is preparing:

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Trump vs. United States — The Immunity Argument

By tmess2 | Published March 3, 2024

Earlier this week, the United States Supreme Court announced that it would hear arguments in the case of Trump v. United States, regarding Trump’s claim that he is immune from prosecution for his role in the January 6 insurrection because his actions that day were official actions.  They also announced that arguments will be held this term — on April 22.  There is a lot to unpack in this order.

Let’s start with the procedural posture of this case.  Late last year, the trial judge (sitting in the federal district court for D.C.) denied Trump’s motion to dismiss the indictment based, in part, on his claim of absolute immunity for actions taken while President.  He then filed an “interlocutory” appeal of that ruling.  (In most cases, parties can only appeal when a case is over.  There are a limited number of circumstances in which a party can immediately appeal from a pre-trial ruling,)   The appellate court (the D.C. Circuit) expedited the appeal (even more so than is normal for interlocutory appeals).  Despite the D.C. Circuit expediting the case, the special prosecutor, In December, asked that the U.S. Supreme Court take the case without waiting for a ruling from the appellate court (something that is rarely done).    But, on December 22, the U.S. Supreme Court denied that request.

On February 6, the D.C. Circuit issued its opinion affirming the trial court.  Normally, there would be a brief period of time before the “mandate” (the formal order implementing the opinion and restoring the authority to the trial court to proceed).  But the panel that issued the opinion set a quick deadline of February 12 for Trump to get a stay of the mandate from either the full D.C. Circuit or the U.S. Supreme Court.  As such, on February 12, Trump filed for a stay with the U.S. Supreme Court.  Now, in most cases, once the stay were granted, the case would proceed on a normal schedule.  On a normal schedule, Trump would then ask for rehearing from the full D.C. Circuit.  If and when the D.C. Circuit declined to rehear the case (the ruling in almost all cases), Trump would then have ninety days (plus any extensions) to ask for certioarari (the formal order taking the appeal) from the Supreme Court.  In some cases, however, when the U.S. Supreme Court issues a stay, it will also treat the stay application as a petition for certiorari.  The special prosecutor, in his response to the stay application, while arguing for the U.S. Supreme Court to deny the stay, made the alternative argument that, if the U.S. Supreme Court did grant the stay, it should exercise that power to treat the stay application as a petition for certiorari and expedite the case. Continue Reading...

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Super Tuesday Week

By tmess2 | Published March 2, 2024

Tuesday is Super Tuesday — the first Tuesday of the primary cycle in which any state can hold a primary contest.  As most states use state-run primaries, there will be a large number of states on Tuesday.

But, before Super Tuesday, several states that are using party-run contests will be holding Republican contests as the “window” for the Republicans opened yesterday.  (The “window” for Democrats opens on Tuesday.)  As discussed last week, one of the contests today is the second half of the Republican’s Michigan two-step with the Republican state convention which will be allocating the “district” level delegates.  In addition to Michigan, today will see events in Missouri and Idaho.

The Missouri Republican rules are somewhat ambiguous.  It looks like they are doing a traditional caucus with a 15% threshold and an unspecified winner-take-all kicker at local option.  But rather than allocating delegates based on today’s vote (which is what the national rules appear to require), they are merely binding the delegates chosen today to vote the same preference at the district conventions (which should effectively have the same result).  Missouri is using a caucus because our current Secretary of State repeatedly lied and claimed that the state-run primary was nonbinding (when the rules of both party made the primary binding) and a repeal of the primary was slipped into an omnibus election bill which passed despite the unanimous opposition of Democratic legislature).  The Democrats will be holding a party-run primary in three weeks with a mail-in option. Continue Reading...

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South Carolina Recap

By tmess2 | Published February 27, 2024

It’s hard interpreting the Republican results for president this year.  If Donald Trump were the incumbent, the numbers that he is getting would be the sign of substantial opposition within the party.  If this year were a truly open primary (i.e. he was not being treated as the “incumbent candidate” by Republicans), his results would be outstanding.

But the bigger story out of Saturday might be at the Congressional District level and is about the House of Representatives, not the presidency.  Nikki Haley only won one of the seven congressional districts — the First District.  Nancy Mace is the current, two-term, incumbent.  She was one of the “Freedom Caucus Eight” who voted to vacate the chair.  Kevin McCarthy is apparently planning on supporting a primary challenger to Representative Mace.  Does the fact that Nikki Haley got 53% of the vote show that a majority of the Republicans in the First District will support an establishment challenger to a Trumpist candidate.  If so, the Representative Mace’s time in Congress might be coming to a quick end.  Additionally, while the lines were a little different, the last time that the Republicans were this divided and supported the more extreme primary candidate, the Democrats managed to win this district (in 2018).  So, if the Democrats find a credible candidate for the general and Representative Mace wins the primary, perhaps enough real Republicans do not vote in the general or opt to vote for the Democrat to take this seat away from the Freedom Caucus.

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Alabama IVF Decision

By tmess2 | Published February 25, 2024

In the past week, there has been a developing story out of Alabama.  The Alabama Supreme Court ruled that several the couples who had used an IVF clinic could bring a wrongful death action against the clinic.  That clinic kept unused embryos frozen in a “cryogenic nursery.”  There was an incident at that clinic involving an intruder which causes the embryos in question to thaw.

Despite the media attention paid to this story, it is really the story of the dog that didn’t bark.   While Alabama does not technically have a “life begins at conception” law, the state constitution does have a provision recognizing that, from conception, an embryo does have a right to life.  And for a long time, Alabama has recognized that its wrongful death law does permit a cause of action for the death of an embryo.  (The debate in the case revolved around which statutes applied.  There are other statutes which limit some causes of action to an embryo in the uterus, but the majority declined to find that those statutes limited the cause of action.)  In the absence of a statute making a distinction based on implantation, if there is a cause of action for the death of a fetus against a John Doe who gets into a car accident with a woman who is pregnant causing a miscarriage, there is no logical reason that there would not be a cause of action against a clinic which has expressly (by contract) taken on a duty to protect the embryo.

Now, if you did not recognize conception as the starting point of life or personhood, there might be a basis to distinguish between an unimplanted embryo and a fetus at a later stage of development.  (And as noted above, for some purposes Alabama does nto make that distinction.)  After all, a significant percentage of blastocytes (the technical term for the early stage of embryonic development) do not successfully implant in the uterus.  In fact, many birth control  methods are designed to prevent implantation.  Even after implantation, it is not unusual for there to be an early miscarriage before it is even possible to detect a pregnancy.   But once you define life and personhood as starting at conception, even an unimplanted embryo is a person with all of the rights that the law grants to a “person.” Continue Reading...

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2024 Presidential Primaries — South Carolina Republicans and Michigan

By tmess2 | Published February 24, 2024

As we head into the last week of February, we are also reaching the end of the authorized early primaries.  Under the respective rules of the two parties, there is a preliminary window in which only some states were authorized to hold early primaries/caucuses.  For the Republicans, the “regular” primary window opens on March 1.  For Democrats, the “regular” primary window opens on the first Tuesday in March (March 5).

For this last week, we have three primaries on the book.  First up, today, is the South Carolina Republican primary.  South Carolina law allows the parties to choose the date of their own primary, and the two parties have tended to choose different dates (but usually a Saturday).  And so we had the Democratic primary several weeks back which was won by President Joe Biden.  Now, it’s the Republican primary.  While there are seven candidates on the ballot, two of them are not known nationally, and three of the nationally-known candidates have dropped out.  In other words, while five of the candidates may get some votes, there are only two with any chance of winning delegates — former South Carolina Governor Nikki Haley and a candidate who ineligible to be president, Donald Trump.  South Carolina Republicans use a “winner-take-most” system for allocating delegates.  In other words, each congressional district has three delegates and whomever wins that district gets all three delegates.  Likewise, there are twenty-nine at-large delegates, and whomever wins the state gets all twenty-nine delegates.  Especially with only two serious candidates in the races, whomever wins statewide will have won at least one congressional district (and probably will have won more than one).  Thus, the winner of the primary is guaranteed to take at least 32 of the 50 delegates (which is why this type of system is referred to as winner-take-most).  Despite the fact that Nikki Haley used to be the governor of South Carolina, the traditional Republican Party in South Carolina is dead and has been replaced by the Trump Party.  While anybody who did not vote in the Democratic Primary could theoretically vote in the Republican Primary, there probably will not be enough independents and Democrats voting to save the Republican Party from itself.  Polls show Donald Trump leading by a wide enough margin that he should win all fifty delegates, and the only question is whether Nikki Haley can make it close enough to steal a district or two.

On Tuesday, we will primaries for both parties in Michigan.  President Joe Biden should win the state easily.  Neither Representative Dean Phillips nor Marianne Williamson is a serious contender to reach the fifteen percent to win delegates.  The real contender to take delegates away from President Biden is “uncommitted.”  Representative Rashida Tlaib has been encouraging voters to vote for uncommitted in protest of President Biden’s middle of the road stance on Israel’s response to Hamas’s invasion of Israel.  While the pro-Palestinian progressive wing of the Democratic Party has a problem with Israel trying to remove Hamas from the Gaza Strip, if President Biden were to do what they want him to do, it would guarantee Donald Trump’s victory in November.  If uncommitted stays below 15% (state-wide or in any individual district), President Biden will win all of the delegates (state-wide or in that district).  The largest districts have seven delegates; so it is unlikely that uncommitted will get more than one delegate in any individual district.  The one exception to that might be Representative Tlaib’s district.  And the issue in that district will be whether uncommitted can get to the 21% necessary to win a second delegate.  If uncommitted does not win any delegates in that district, we could see a primary challenge to Representative Tlaib emerge.  State-wide, there are twenty-five at-large delegates and fifteen party-leader delegates.  As such, if uncommitted were to get to fifteen percent state-wide, uncommitted would get, at least, four at-large and two party-leader delegates.   But the expectation is that President Biden will win almost all of the 117 delegates at stake on Tuesday. Continue Reading...

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