Gerrymandering

There are various reasons why Democrats lose elections, even when they as a whole get more votes (see 2000), but gerrymandering does factor in. I don't know how much, but some attempts to belittle it (as compared to let's say Democrats stacked into urban areas) overall seem at least somewhat overplayed. And, it can be a bipartisan problem.

Landrieu Keystone Pipeline Bill Filibustered

Sen. Landrieu, who supported the pipeline for some time, pushed for a stand alone vote in part according to analysts to help her apparently doomed run-off election or perhaps as one final swan song that might also help her past-Senate lobbying career.  The blocked vote (by one) still might have helped her, it in part by now a symbol for both sides (pro and con, environmental or Democrats in general) far beyond its immediate effects. 

A transcript of Naomi Klein's segment can be found here and with it is a statement from Obama that is negative as to its value:

My government believes that we should judge this pipeline based on whether or not it accelerates climate change or whether it helps the American people with their energy costs and their gas prices. And I have to constantly push back against this idea that somehow the Keystone pipeline is either this massive jobs bill for the United States or is somehow lowering gas prices. Understand what this project is: It is providing the ability of Canada to pump their oil, send it through our land down to the Gulf, where it will be sold everywhere else. And it doesn’t have an impact on U.S. gas prices.

He has dragged out things here, even if I'm unclear if he ever gave a firm "no" on the matter. I guess we will see if he will get a chance to veto legislation in the next Congress or if a filibuster will hold there, especially since one of those votes was from a retiring lame duck due to be replaced by a Republican.  Few Democrats generally labelled conservative voted against it though Sen. Feinstein did, suggesting every vote counts and those who see little use for Landrieu might be a tad shortsighted. 

There was pushback on even having the vote from some on the left, but in hindsight it seems to work out pretty well. The message is that Landrieu is something of an outlier, helping her somewhat I guess, while the Democrats as a whole appear both loyal to a member of their caucus (though in a somewhat token way -- their campaign committee isn't much for, e.g., helping her with funds)  but still pro-environment. At least, that can be how things are framed and that is ultimately the bottom line if we go by results.  A holding action is a win the next two years.

A final word. I have, perhaps wrongly, not been that informed about this issue, partially since it never was totally immediate (the final okay) though as a general matter I would have avoided it if possible -- it's one of those things where I follow a precautionary principle and opposition is a red flag. I'm still wary about it clouding out everything else -- Obama did do some good overall in pushing for green policies -- overall I'm with the Democrats as a whole here. It looks like a bad idea.

"Landrieu Gambit"

Have not kept up with the Keystone Pipeline, but putting aside that Obama seems to be drawing it out pretty far, its importance at times seems more symbolic than real. The "Landrieu Gambit" seems a forgivable move given it's only a matter of time anyway and you have to throw something to outliers in the coalition at times. And, desperate people deserve a partial pass. The post there seems to suggest the symbolic messaging is essential here. Seems to me environmentalists shouldn't be impressed much with that anyway. And, she has supported the pipeline for some time; perhaps, it's a move to have one last win.

Ballot Measures

With so many races, something good happened on Tuesday including respecting guns and personhood. The last link shows abortion rights did lose out. Another bit of insanity is an "anti-foreign law" measure addressed here. As noted, such laws are in effect religiously discriminatory and selectively burden the promotion of more liberal if still religious motivated states. Throw the first stone indeed. NY redistricting measure passed.

Onward!!!

My "stop exaggerating" side kicked in when someone went off on the Democrats, including noting Obama only won since he isn't Bush or Romney (McCain not included for some reason). But, yeah, last (puke in the picnic basket) Tuesday does send warning bells. Need to start like last week toward fighting to deal with the future. And, sorry, don't quite think the past (HC) is the answer. Still think the public as a whole likes Democratic policy better.

McConnell Re-Elected etc.

Yeah. Screw you voters for helping make things worse.

John Oliver

He's allowed, but weak show last Sunday. Home Depot skit ran SNL level too long & good message on importance of local races also went too long in its "those crazy locals" intro while the lack of importance of the U.S. Senate overblown. Putting aside appointments, one major reason for gridlock is a divided Congress. Hope today isn't Game 7 level depression.

"Comedian John Fugelsang comes up with great reasons why you shouldn’t vote next week"

See here. I can only hope that it is reasonable to think that Democrats will retain control of at least one branch of Congress though it might be some time with runoffs etc. before we know. But, it nauseates me, it does, that it should be close. A big F you to those aiding and abetting those supporting worse government and denial of various rights. On some level, I'll be philosophical on the whys regarding the clueless etc. But, on a visceral level, SCREW YOU!

Obama As Sign To Vote "D" Next Tuesday

I personally from the beginning thought Obama was too restrained even if in some respects he appeals to my inner core but it is good to remember that in various ways he was well worth it. One reason to show up (reducing turnout leans conservative) and vote Democrat.

Election Day Posts

It's only ten days away and some places already ongoing! Sen. Gillibrand with Julia Margulies, a reason to protest vote against Gov. Cuomo, why arguments for voting id laws (a time when conservatives like regulations) don't add up & key NY re-districting ballot measure up in air.

Ipse Dixit USSC Texas Voting Decision In Wider Context

Update: Rick Hasen talks about Breyer's silence, offering some reasonable possibilities. The "dissent without saying" option seems lame, especially when Ginsburg was on the record.  Even if he could officially do that, it surely doesn't come off that way. People ignored when he actually publicly joined Stevens' (along with Ginsburg) dissent in Bush v. Gore. They actually aren't that wrong to not assume he dissented here. 

The Supreme Court opened its 2014 term this month with major actions on same-sex marriage, voting rights and abortion — all handled in private, without explanation or even a breakdown of how the various justices voted.

From time to time, the justices in effect brag that unlike some people, they explain their rulings via opinions. At times, they point to them when asked about certain subjects, the justices standing on the opinions.

This was always somewhat overblown, especially to the degree that the opinions were not really always a full account of what was going on. Justice Brennan, e.g., in Eisenstadt v. Baird rested on rational basis review in striking down a ban on contraceptives that applied to unmarried couples but dropped language hinting at a possible right to choose an abortion. It also noted that wider fundamental rights issues need not be decided, given the law was irrational, but covered such things in dicta anyway. 

This sort of coyness at least is somewhat explicit. The Supreme Court also denies cert or appeals, including in death penalty situations, usually without comment.  As noted here, it was even more complicated before recent days, when mandatory appeals actually meant brief orders expressly made law though a "summary affirmance" generally were given less respect.  The use of Baker v. Nelson, as alluded to there, shows, however, that the opening for broader implications were possible if desired like a loaded gun.

From time to time, justices dissented from these orders / denials, or perhaps added some sort of concurring statement noting a denial of cert. shouldn't be taken to have legal precedential significance and (maybe even if they thought the issue important) there was a reason not to take a specific case.  Likewise, I have seen a few opinions by individual justices writing "from chambers" about appeals to them directly in their role as circuit justices that explains why they did not grant a stay or some such thing. There are thousands of appeals to the Supreme Court annually and most deserve quick treatment. The practice of not even noting actions by individual justices (noted from time to time at SCOTUSBlog with links) is a bit much.

Nonetheless, from time to time, there is a case for more substantive comments. As expressed here, e.g., the to this somewhat more than causal observer striking number of without comment (with a few dissents) stay or cert orders of special significance this month involving the death penalty, abortion rights, voting and same sex marriage. Election Law Blog, e.g., provided ongoing coverage of various lower court rulings involving voting id and procedure laws that to me unfortunately wound up being deciding weeks before the election.  They should find a way to avoid that sort of thing, perhaps postpone new voting rules for a year and a set of appeals.

In a stinging defeat for the Obama administration and a number of civil rights groups in a major test case on voters’ rights, a divided Supreme Court told the state of Texas early Saturday morning that it may enforce its strict voter ID law for this year’s general election, with early voting starting next Monday.  Three Justices dissented from the ruling, which was released a few minutes after 5 a.m. following a seemingly lengthy study.

As noted here, regarding the latest "ipse dixit" voting law stay, the Supreme Court did set up a rule that looked askance at late minute judicial changes of voting procedures.  The three dissenters here, however, argued that the contours of the rule are unclear.  Does it apply when the district court ruling convincingly finds the law discriminatory and overall problematic on statutory and constitutional grounds?  Particularly looking at how they treated providing the more strict ids. Now, we can say, though now we might add a few names, that "Simply put, Justices Alito, Scalia and Thomas do not value the right to vote as strongly as the other members of the Court," but it's best to do so based on an opinion, not (accurate it might be) tea leaves reading of orders. 

This morning's action -- my leaving open mid-afternoon the chance the USSC (akin to "take out the trash" Friday politician news) would have late day orders was prescient if not quite expecting one early morning Saturday (when did this EVER happen?!)  -- does take the cake.  The best case is that this fits in to the "don't change rules late in the game" rule that has thus far (if again without explanation) applied to appellate rulings that went in both directions. This is so even if as noted by the dissent that such "foolish consistency" is ill advised. But, guys, at least explain yourselves.  Justice Breyer's silence (see also in the post-Hobby Lobby order) is particularly annoying, if perhaps part of his long term prudential strategy.

I have noted that not taking SSM cases is defensible and recognize how these orders/stays policies work.  Nonetheless, there is a point when it is taken too far. I was annoyed when the dissenters didn't state why they were for a stay of more than one execution recently, at least once probably because of concerns with protocols. It wasn't just one case. At some point, even if the USSC won't take the case, the dissenters should have made their concerns know. The importance of voting rights, including public opposition to Citizens United, makes this a special case too. 

The break of dawn timing adds to what I see as a black eye to the Court. Enough!

Scotus Watch

Cuomo challenger Zephyr Teachout argues this week's dentist case raises important corporate power issues. She also opposes the proposed re-destricting commission on the ballot as not truly independent (seems less constitutionally problematic than a case USSC will hear) in NY this year though I doubt many know it (just found out myself). Also, a border dispute and two other technical cases were heard. Let's see if we have another late day order.

Voting Litigation Update

See here. Election Law Blog explains certain somewhat opaque but now consistent USSC orders regarding last minute appellate rulings as well as a lower court ruling striking down a Voter ID law in part as a sort of illicit "poll tax." Given the costs involved, some (as do I) do see it that way, but it has gotten at best limited acceptance in various court opinions.

SCOTUS Ipse Dixit

SCOTUS makes two key voting rights decisions without comment except for note of four dissenting in one, an actual written dissent by two justices in another. I have seen probably more than one justice note that the USSC shows its work. Sometimes, not so much.

Winning Senate Matters For Various Reasons

Lawrence O'Donnell was perhaps right last night to say the key point in winning the Senate are confirmations, but didn't do enough to push back against the "won't matter much" crowd. Even in regard to legislation, the net result of a split Congress plus Obama will be better. Obama can't veto everything. He has to pick his spots. A Republican Congress will push things right, including in key budget matters often largely out of the public view.

"Photo ID is NOT Required to Board an Airplane!: 7th Circuit Includes Blatant Falsehoods in New Opinion on WI's GOP Photo ID Voting Restriction"

Great take-down with links to other discussions regarding a "horrendous" 7CA ruling.

"Breaking: Supreme Court, 5-4, Blocks Extension of Early Voting in Ohio: Analysis"

If the 6CA was wrong or not, a 5-4 stay of a voting rights win along predictable lines is just plain misguided at best. It promotes the usual stereotypes/distrust and there simply is no compelling need. Hasen's concerns are likely warranted, anyway, long term. Also, sort of want a written dissent, especially if Hasen is right about the de facto effect of this stay.

Democratic Shift in the Lower Courts

Though the Obama administration was well on its way to leaving a lasting liberal legacy on the federal bench before Senate Democrats curbed the filibuster’s power, the rules change sped up the confirmation process. Today, the number of circuit judges appointed by Republican presidents is 77, compared with 95 by Democratic presidents, according to statistics kept by Russell R. Wheeler of the Brookings Institution.

A NYT article provides some analysis of the swing in the federal courts after six years of a Democratic President, perhaps helped by the graying of judges from twelve years of Reagan/Bush.

In part, it noted that though Obama spend less time and capital early on, hard Republican opposition did lead to more liberal picks and additional effort. The biggest move, something still sadly mostly inside baseball, was the end of the filibuster for executive appointments. Something many probably would have been surprised was in place and likely opposed to overall. Who knows as to the latter. The article does show the importance of those in power, both in the Senate and White House, in respect to the personnel on the federal courts.  And, since that is surely not fungible....

I have been talking about this online (and in a couple letters to the editors) at least since the early days of the Bush Administration. It is somewhat reassuring to watch things swing though it does mean eventually it will swing back.  How that will work out might be the rub. Anyway, putting aside the importance of retaining the Senate, this underlines that the courts do have some electoral accountability.  We vote for those who put them in. This provides an important influence on how the law develops long term. In his Cooper Union speech Lincoln said this:

When this obvious mistake of the Judges shall be brought to their notice, is it not reasonable to expect that they will withdraw the mistaken statement, and reconsider the conclusion based upon it?

It is more reasonable to assume that Republicans would have put in new judges who would so reconsider.  The flexibility of the situation in this and other areas was a major reason why the slave power (to use the Republicans' term) was so concerned about the new party gaining power. The meaning of the Constitution and the law in general appeared rather clear to both sides. The ultimate result depended and depends on who is there to apply it. 

"Living" Constitutionalism indeed.

Missouri Legislature Overrides Governor’s Veto of Forced 72-Hour Waiting Period

A professor for the sake of argument took somewhat seriously the argument that barring same sex marriage has a "rational basis" to (as his wife does as well at that blog etc.) to provide a professorial discussion on why it still isn't reasonable. Some regular commentator provided his usual "he realizes his argument is weak, right" replies. Tossed in a "judges are just ideologically deciding things" kicker.

I replied, trying to hold back my distaste. At some point, this is just too much -- the bans are not reasonable. Please, let us stop pretending it is reasonable to rest on the conceit that marriage is about one thing and then that some only serious if you try real hard "accidental procreation" or whatever rationale is the reason you are blocking same sex marriage. It isn't. It's a lie. You are blocking it out of distaste and/or a basic belief that same sex couples don't deserve the same basic rights as the rest of society.

It is somewhat helpful to reason these things out, but at some point, it is just annoying. There is some sort of blindness there. I know this will happen. I have been talking about same sex marriage and ending bans on homosexuals in the military from the 1990s. Joseph Steffan was one person I remember reading about in regard to the latter.  Felt then as now that it was a basic principle of equality at stake.  That denying equal rights, at least in regard to something like not criminalizing a same sex blow job is patently obviously something to protect. But, as we know, that didn't happen nation-wide until 2003 in Lawrence v. Texas.

As with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion, but may not impose unnecessary health regulations that present a substantial obstacle to a woman seeking an abortion.

The Casey plurality also held the 24 hour waiting period at issue was "troubling in some respects" but that a "substantial obstacle" was not shown by the District judge (maybe because earlier precedent didn't require that here).  Of course, Justice Stevens (and Blackmun) was correct that such waiting periods were based on "outmoded and unacceptable assumptions about the decision making capacity of women." When we are dealing, like in Missouri, which is shocking on some level since you'd think it wasn't quite Mississippi or something, a state with one clinic, a fair reading of the facts can very well provide evidence of such a substantial obstacle.

People have some right to get the level of disdain warranted for claims against same sex marriage when it is determined a 24 hour waiting period is not enough. No, you need two more days. To quote:

Under Missouri law, women are already required to make two visits and an abortion provider wait at least 24 hours before having an abortion. The average distance a woman in the state travels for abortion care is nearly 100 miles to and from the state’s only abortion provider, according to Planned Parenthood. One in ten travel more than 300 miles for a safe and legal abortion.

This gets into the territory of other states where clinic regulations, repeatedly targeting singular clinics, are so "unnecessary" and provide such "a substantial obstacle," some judges are saying "enough!" When you already have a waiting period and one burdensome as is, going further is gratuitous. The political messaging involved here is in part shown that the legislature overrode the governor's veto.  As with gays, the problem is only highlighted when you look at the full picture. Glad some in the state realize it is b.s. and there is some strong public reactions against it.

And, since some sort of constitutional right is involved here, b.s. can only be taken so far. Too far thanks to Casey, but take what you can get. And, again, elections matters -- veto override.

NY Primary Day

And Also: Some exciting games as NFL season begins, though many blown early leads (Brown coming back from 24 down only to lose at the buzzer by three perhaps hardest), Jets doing okay, Giants sorta embarrassed.  Guess the Rice news overwhelms all.

Update: Not surprisingly, all three lost, getting in the neighborhood of 40% of the vote in each case (with a third candidate helping, ZT might have received closer to 35%). Notable figures, I guess, especially for the two newbies running and the usual uncompetitive local races. As to the affect of Cuomo's national potential, maybe, but not sure especially with Clinton, what his national cases were anyway. 

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Today's a somewhat atypical NY primary day in that there are multiple serious races in my sleepy district though likely at best one upset (helps the lieutenant governor has few duties other than Dave Barry's old line about wearing a suit and checking to see if the governor is still alive ... or not getting into trouble with prostitutes).  No problems at the empty polls (once I had to fill in a paper ballot, but have simply not had problems voting over the years)  and received a "I vote" sticker.  No more lever machines.

Primaries are a chance to push candidates to the left/right, Andrew Cuomo promising, e.g., to be more progressive to get the Working Families Party line.  They provide means to send messages and at times even knock people off (a local pol was just last year). Cuomo has gotten in trouble for problems with an anti-corruption panel and for generally not being liked in part because along with same sex marriage and gun control, he supported some more conservative things like fracking and financial matters. The tax free commercials I see promotion business in NY these days are a bit weird.  And, generally speaking he rubs people the wrong way.

Zephyr Teachout, a local professor and campaign finance activity, does not just have a name that sounds like a character in a sci fi movie, is clearly the progressive choice. The lieutenant governor choice, Timothy Wu, on a separate line so might win over the not too well known conservative leaning Democrat Cuomo pick, is an expert on net neutrality and other things.  Finally, we have Oliver Koppell, a long term local pol, running for state senate over Jeff Klein, who threw with the Republicans to cement their control when again in a span of years it was almost evenly divided.

Meanwhile, a constitutional amendment to deal with Citizens United advanced in the U.S. Senate. There is value in lost causes, and this won't get the supermajority necessary to advance when the big vote is taken, so it being a loser is not necessarily a bad thing.  I'm with election law expert Richard Hasen that there are better and more useful in the long run ways to address campaign finance reform.  As to the text, the Congress and states already have power to regulate in this area but the "political equality" reference does address something the USSC repeatedly found a problem. OTOH,  what the freedom of the press section will stop is unclear and just what "appropriate" means (see current 14A/15A law such as Shelby  overriding clear text via vague underlining constitutional principles.).

I'm wary, but it seems somewhat "eh" since it won't pass.