Tag Archives: SCOTUS

Democrats Need Focus

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Not interested in the present White House contest

I’m not interested in the present bullshit.

Remain focused on the state legislatures, governors and attorneys general. They are the true sources of power in this country. The Supreme Court is 6-3, and Congress is incredibly hamstrung, thanks to the votes and laws of multiple state governments over decades. The balloons which they trial often make it into law or increase in popularity with like-minded counterparts across the country, and then sometimes flow upward into federal policy.

You may fear SCOTUS and what more they may allow, or what Trump will bring if he is elected again, but so many of you live under decades-long dark-red state rule with no option but to wait for demographics to shift in your direction just a little bit more each year, or each decade.

And what has that brought you? Learned helplessness, stuck in the suburbs of some red state, stuck being disappointed by the latest flow of bullshit from your state legislature.

And you pontificate on switching out the incumbent president for another nominee from whatever state while the sand continues to shift under your (and their) very feet.

Learn your history. Get some perspective. Relocate strategically. Plan accordingly.

Why liberals and socialists are reacting with hair on fire

I don’t think it’s a “circle jerk”, as a friend described it, at least not a total circle jerk. I have several thoughts about it.

They’re turning inward and insular because they’re being starkly reminded of the fragility of their appearance-dependent relationship with the nationalized centrist-Esque media and their donors, and they have no seeming refuge atm beyond, what, MeidasTouch? Lincoln Project? YouTubers?

Too many liberals want to be loved by nationalized media, and to keep their current relationship with that same media. Just as they’ve been with the judicial and executive branches of government, they may want to turn against nationalized media for now because things are going bad, but they always come back and never build out their own comparable counterpart to the conservative parallel economy. And their donors, small dollar and large all, are flighty as hell.

And the nationalization of the media apparently happened during the same period as the growth of the local news(paper) desert and the growth of Republican capture of state legislative majorities.

And the center-left are also lacking yet again for a strong bench of unifying personalities from outside the nationalized media to countervail the prevailing narrative, or to even fill a portion of the power vacuum which will be left if Biden withdraws or (worse) 25th-Amendments his remaining (first) term.

We may not have a Macron at the helm, but we also definitely don’t have a (less-problematic) Melenchon to offer an alternative, polarizing populist vision or personality. In leadership, We have a bunch of institutionalists and up-and-comers with the personality or relatability of a wet paper bag outside of their constituencies, none of whom are helping to build the parallel polis to protect their interests and narratives.

So we now see a circle jerk for those who only have (or seek) some distance from the nationalized centrist media and its blowback, not a full-blown parallel polis to buffer them ideologically from centrist blowback in a multitude of ways like what Trump has at his disposal.

Not even pro-Bernie people, as resentful as they may continue to be about 2016 or 2020 DNC, or people further left have built out much of their own parallel polis, unfortunately.

Free advice to Biden’s campaign

In France this week, Macron’s own prime minister, Gabriel Attal, got him to stop talking publicly about the election for the rest of this last week, because Macron, in his 40s, kept firing his mouth off at the political left (especially rival Jean-Luc Melenchon) at a time when that is absolutely not needed.

Macron may have looked at the numbers and decided that it would be better for the RN to grab a majority, appoint a far-right prime minister and try their hand at governing in such a way that the French public would be turned off afterwards.

Attal, OTOH, is actually fighting against this apathy, this resignation to an RN majority, and is not fighting those to his left. He’s actually committing to this “Republican front” strategy, and actually hates the far right more than he disagrees with the far-left. He knows ball.

This “Republican front” may have helped reduce the likelihood of a majority for the far-right National Rally in the runoff tomorrow, as per polls from yesterday. (UPDATE: It did, and Attal announced his resignation effective Monday. UPDATE: Macron rejected his resignation, wants him to stay until after the Olympics.).

If this is what’s needed to keep Biden in the election and keep Dems viable, then do it. Have him talk with a voice assistant at all public events like Jennifer Wexton. Have his surrogates campaign for him instead where necessary.

His actual voice is a worthy sacrifice if he’s that serious about running.

But if you’re going to side with anyone:

  • it must be Harris
  • you must support Harris completely, with no reservations.

We don’t need primaries

Hot take: French and British political parties do not use publicly-funded, state-ran primaries to nominate their parliamentary candidates, nor do they perceive their nomination contests to be public, mass affairs or extensions of the general election season which should be open to all party members or even non-party members.

Maybe we in the U.S. should reconsider using primaries (closed or open) to nominate our candidates or inviting participation from independents. Primaries add unnecessary expenses and time to campaigns and are incredibly inflexible to quality control concerns.

We really don’t need primaries, let alone open primaries.

Legalize proxy voting

Hot take: Legalize proxy same-day in-person voting.

It may violate the secret ballot, but if you want high turnout without relying upon early voting, drop boxes or the postal service, you’d allow voters to waive their right to a secret ballot and formally, temporarily give their power of attorney to another registered voter.

If you’re the type who wants to know the results on the night of and would rather that people show up on the day of, then proxy voting is the way to go.

France shows that it can work.

Good news from the states so far this year

  • Delaware’s legislature passed a repeal of their *statutory* death penalty, which awaits signature. 
  • Delaware Supreme Court legalized no excuse permanent absentee voting and early voting, overruling a lower court.
  • California will have a total ban on slavery on the ballot in November.
  • Wisconsin’s Supreme Court voted on party lines to legalize ballot drop boxes for upcoming elections. 
  • Ohio’s Citizens Not Politicians dropped off 730k signatures from the majority of Ohio counties for their amendment to institute a nonpartisan redistricting commission, which now awaits vetting by the Review Board.
  • Arkansas voters dropped off 100k signatures for an abortion legalization amendment, which now awaits vetting by the Review Board
  • Nevada will have an abortion amendment on the ballot in November
  • Michigan and Minnesota passed bans on gay/trans panic defense
  • California, Colorado will vote on marriage equality amendments, while Hawaii will vote on repealing language allowing the legislature to restrict marriage to opposite sex couples.
  • Maryland and New York will vote on inclusive equal rights amendments. 
  • Colorado, Florida, Maryland, New York, Nevada and South Dakota will vote on abortion legalization amendments. 
  • Nevada and Oregon will vote on adopting ranked choice voting in blanket primaries. Campaigns in Washington D.C. and Idaho have submitted ballot signatures for pro-RCV measures, and a campaign in Colorado have until August to submit 125k signatures. 
  • Florida and South Dakota will vote on cannabis legalization amendments.  
  • Minnesota passed a State Voting Rights Act and banned prison gerrymandering.

On the Last Few God-Awful SCOTUS Opinions

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The Conservative Litigation Industry

Remember:

  • SCOTUS under Roberts frontloads cases to curry good press first before giving their Republican base, especially the conservative litigation lobby, the red meat they want at the end of the term;
  • SCOTUS under Roberts only rejected the worst interpretation of the independent state legislature theory in #MoorevHarper and allowed for future litigation on the theory;
  • SCOTUS under Roberts only ruled against Alabama in #AllenVMilligan because Alabama did not present (read: lie) well enough in favor of their current congressional map, but SCOTUS still allowed for future litigation to potentially gut Section 2 (see Kavanaugh’s concurrence).
  • SCOTUS ruled that affirmative action may be justified if one writes an essay about individual impacts of race discrimination in one’s life, and that will likely warrant further litigation. A boon for the conservative litigation lobby;
  • SCOTUS in #303Creative carved a religious exception to nondiscrimination laws that will also invite further litigation. Another boon for the conservative litigation lobby.

On 303Creative

The wrong question in response to the 303creative case is “can I deny service to right-wing Christians/Jews/Muslims”

The right question is “where in this country are dissenting people vulnerable to monopolies or dominance by businesses who support this decision and how can I help”

Catholic and Christian hospital, adoption, shelter and related systems who dominate whole regions of states should be delighted by this decision. They have a opening to drive a truck through nondiscrimination laws, with few federal options since we did not pass the Equality Act last year.

On Affirmative action

The ADOS movement, including its paragons such as Yvette Carnell and Sandy Darity, has demanded strict limits for reparations to descendants of antebellum slavery in the United States. In fact, it was one of the most rampant and angry demands directed by testimony to the California Reparations Task Force, which issued their final report on June 29; it was also supported by California Secretary of State Shirley Weber.

This Supreme Court ruling, which has struck down race-based affirmative action and inverted the 14th Amendment into itself, likely opens the doors for a redirection of affirmative action towards lineage-based affirmative action.

More on SCOTUS redistricting rulings

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  • Alabama’s legislature will approve a new congressional map with a second VRA district by July 21. The plaintiffs’ remedial map, which goes for a least-change approach, might be adopted, but several submissions have been sent.
  • SCOTUS rejecting Louisiana’s appeal defending their congressional maps is only a partial victory for fairer maps. The case was sent back to the 5th Circuit to decide whether to continue hearing Louisiana’s appeal or to send it back to the Middle District of Louisiana which already ruled against the map. We shall see, but either Louisiana or the 5th Circuit can draw this one out.
  • The denial of cert to Ohio’s case defending their shit maps is not a victory for fair maps at all. Unless Ohio defeats Issue 1, most other attempts at redistricting reform in that state are f**ked.
  • Still nothing regarding Rose v. Raffensperger from the 11th Circuit, beyond both plaintiffs and the state sparring in dueling letters to the court asserting Milligan and Gingles‘ applicability to the case immediately following the Milligan decision.
  • I tried redrawing a map with a second majority-Black district for Louisiana’s PSC. I don’t think it worked.

SCOTUS Intervenes on Side of Black Voters (For Now), Cancels 2022 GAPSC Elections

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I wishcasted a bit about VRA implications for GAPSC back in January.

A bit of history from the plaintiffs (likely written prior to the appointment of Fitz Johnson by Brian Kemp):

“Commissioners have been chosen by statewide election since 1906. Yet no African American has ever been elected to the Public Service Commission without having first been appointed by the governor. And even then, only one African American has ever served on the Commission.”

Why was the 1998 law passed?

The ruling by Judge Grimberg cites, among others, the 1998 reform of PSC elections from being fully-statewide to having to run statewide from residency districts. This summary from the 1998 session of the Georgia General Assembly cites that year’s HB 95 as that legislation.

The General Assembly passed HB 95 on April 7, 1998, and Governor Zell Miller signed the bill into law on April 23.

As documented here, HB 95 was co-sponsored in the House by speaker Tom Murphy (D), Reps. Terry Coleman (D), Newt Hudson (D), Larry Walker (D, the House Majority Leader), Jimmy Skipper (D, Majority Whip), and LaNett Stanley-Turner (D, Majority Caucus Secretary).

From what we know, Republicans occupied 23 seats in the state senate, 76 in the state house in that iteration.

As the PSC put it in a press release from the time:

“In its original form, H.B. 95 would have prevented Commissioners Bobby Baker [R] and Dave Baker [R] from seeking re-election. The Senate, in a bipartisan effort authored by Senators Chuck Clay [R] and Charles Walker [D], amended the bill so as not to affect sitting Public Service Commissioners. Split along party lines, the House disagreed with the Senate, but in the last hour of the session accepted the Senate version.” The House version was blatantly partisan. I still question district qualification for a statewide office, but at least this version is fair to all involved,” said Commissioner Dave Baker. The legislation was first introduced in 1996 – just one year after Republicans for the first time became the majority on the PSC.”

So HB 95 seems like legislation which was not fully thought out by its authors, who also could not seek an amendment to the state constitution to establish actual districts and district-exclusive elections (since it takes 2/3 of both chambers to send a proposed amendment to the ballot). This seems like it was meant to protect Democratic incumbents on the commission from eventual defeat and (initially) force two Republican commissioners to run again for their seats, especially if Tom Murphy was involved as a sponsor.

Only in 1998 did Democrats decide to pursue this statutory change to end the fully-statewide election of PSC members, but only through a half-measure which ended up screwing over Democratic candidates for PSC in the 2000s as they hemorrhaged their remaining White rural voting base.

Will this change require a constitutional amendment or a statute law change?

Article IV Section I of the Georgia State Constitution states in full:

Paragraph I. Public Service Commission.(a) There shall be a Public Service Commission for the regulation of utilities which shall consist of five members who shall be elected by the people. The Commissioners in office on June 30, 1983, shall serve until December 31 after the general election at which the successor of each member is elected. Thereafter, all succeeding terms of members shall be for six years. Members shall serve until their successors are elected and qualified. A chairman shall be selected by the members of the
commission from its membership.
(b) The commission shall be vested with such jurisdiction, powers, and duties as provided by law.
(c) The filling of vacancies and manner and time of election of members of the commission shall be as provided by law.

Define “by the people”. Can statute law interpret that “by the people” can apply to “the people of each district”?

Here’s the statute text from O.C.G.A. 46-2-1(a):

  1. The Georgia Public Service Commission shall consist of five members to be elected as provided in this Code section. The members in office on January 1, 2012, and any member appointed or elected to fill a vacancy in such membership prior to the expiration of a term of office shall continue to serve out their respective terms of office. As terms of office expire, new members elected to the commission shall be required to be residents of one of five Public Service Commission Districts as hereafter provided, but each member of the commission shall be elected state wide by the qualified voters of this state who are entitled to vote for members of the General Assembly. Except as otherwise provided in this Code section, the election shall be held under the same rules and regulations as apply to the election of Governor. The Commissioners, who shall give their entire time to the duties of their offices, shall be elected at the general election next preceding the expiration of the terms of office of the respective incumbents. Their terms of office shall be six years and shall expire on December 31.
  2. In order to be elected as a member of the commission from a Public Service Commission District, a person shall have resided in that district for at least 12 months prior to election thereto. A person elected as a member of the commission from a Public Service Commission District by the voters of Georgia shall continue to reside in that district during the person’s term of office, or that office shall thereupon become vacant.

When will the General Assembly work on this change?

Usually, a special session may be called in the lame duck period between election and inauguration, so I wouldn’t be surprised by this. Or this could be handled in the 2023 session.

What changes could be made to PSC elections?

What I can think of:

  • Single-winner District-exclusive partisan elections (as done in Mississippi, Louisiana, Montana, Nebraska and New Mexico); or
  • Straight at-large election of all members and abolishing the residency districts (as done in Alabama, Arizona, Illinois, North Dakota, Oklahoma and South Dakota);
  • Partisan or non-partisan?
  • Remove PSC from directly-elected to governor-appointed?

Of course, New Mexico (a Democratic-majority government) passed a 2020 referendum which shrinks their Public Regulation Commission from five to three seats and shifts it from elected to gubernatorially-appointed, among other things. The changes take effect on January 1, 2023.

I can at least say that five statewide elections will be taken off the ballot, with voters having only one section reserved for PSC candidates rather than two (if they live in a district which is up for election).

Who won each district in past PSC elections?

Based on data, we do know that Democratic nominees David Burgess (2006), Stephen Oppenheimer (2012), and Lindy Miller (2018) would all have won District 3 under a district-based election method for PSC. However, I couldn’t say that District 2, the next-closest district, would see strong performances by Democratic nominees Mac Barber (2004), Keith Moffett (2010), or a hypothetical Democrat in 2016. Furthermore, the General Assembly’s removal of Gwinnett County from District 2 in 2022 would have foreclosed on a Democrat winning this district under a directly-elected system.

How will this affect independent and third-party candidates?

From my conversation with Colin McKinney, a Libertarian who was on the ballot for PSC District 2 until the election was cancelled, this will not be good for third-party and independent candidates. Libertarians, the only third party on the Georgia general ballot, usually only appear on statewide ballots for office because they are able to solicit enough petition signatures statewide to appear on the ballot in election years. This development means that Libertarians will be harder pressed to find petition signatures in each district.

How will the future PSC map comply with the VRA and other federal law?

The map will have to be drawn by Republicans to barely be compliant with the VRA, whether or not it they decide to comply with current state law mandating that PSC districts must be drawn around whole counties. How much does the 2022 map comply with the VRA’s requirements?

SCOTUS and other bodies controlled by the Federalist Society are hostile to the VRA. What do they gain from this case?

The Federalist Society cult (yes, “cult”) has a knack for using seemingly-innocuous rulings to build up larger assaults on society, and repeatedly doing so until they end up with a Shelby or Dobbs. Remember that this decision is a temporary ruling to force the 11th Circuit to reconsider their stay on Grimberg’s decision. We have no idea when SCOTUS could lift this ruling.

But we do know that the disdain for the VRA among conservatives will spur them to file cases attacking the legitimacy of the VRA. Stay woke and all that.

What will this mean for Georgia Democrats?

  • I expect that more Democrats (especially outgoing legislators in “safe blue” Metro Atlanta) will consider running for a PSC seat or two. Expect more competitive Democratic primaries for PSC in Metro Atlanta.
  • Democrats will have a few less statewide seats to compete for on the primary and general election ballot. Maybe that will help them focus on competing for 8 statewide executive seats and U.S. Senate, though.
    • Like, how do North Carolina Democrats, competing for U.S. Senate and 10 statewide executive seats, have such a better time competing for statewide executive elections than Georgia Democrats?
  • Possible that service on the PSC could me a springboard for higher office, since the PSC (currently) has larger districts than congressional or legislative districts. However, unlike Louisiana, this has not been the case for past GA PSC members. To date, only one GAPSC member has been subsequently elected governor. Those who retire early from the GAPSC often get jobs in the private sector.
  • There is still the possibility that the PSC could be moved from elected to appointed. In such a case, I would still see the silver lining of a stronger focus on 1+8 statewides.
    • Maybe this should be a time to enact stronger ethics and professional safeguards for this office.

What implications could this have for other cases?

There is a VRA case from Mississippi challenging the election of their State Supreme Court. While it’s not statewide, the current system requires that 3 justices each are elected at-large from only three districts (which also concurrently serve as the districts for their three-member Public Service Commission). As a result, only four African-Americans have ever served on the State Supreme Court in its history. With this ruling from Georgia, I wonder how this Mississippi ruling will play out.

Rose could also allow someone to challenge Alabama’s statewide at-large PSC elections. Alabama has seven statewide executive officers not including the three PSC members, but also a large Black population. Let’s see.

On Judge Ketanji Brown Jackson’s confirmation

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Congrats to Ketanji Brown Jackson on being confirmed as the 116th Justice of the Supreme Court.

The victory of Jackson’s confirmation today was delivered by over 2mil Georgia voters in January 2021, partly because Democrats in some other states failed to pull their own weight (or stupidly donated rage money to obvious honey-pots like Kentucky and South Carolina) in November 2020 for U.S. Senate candidates, partly because Dems failed to pull their weight in several other states throughout the 2010s.

The vote for Jackson’s confirmation would not have been this close (53-47) in a better timeline, it should not have taken this long to nominate a Black woman (let alone a public defender), and it will not change the ideological composition of the court. Hell, it would have been even better if KBJ had graduated from a public university, but the only remotely-credible candidate who had that credential is pretty bad in her judicial record.

For those who watched Jackson’s confirmation through the lens of breaking glass ceilings of representation for both women and African Americans, or a victory for the public defender community, they should celebrate.

But I can’t celebrate, because few liberals (or even progressives) in this country are willing to do the existential work of protecting ourselves and starving the stomach of the reactionary beast.

We are still living in the Reagan era’s wildest dreams, and we are about to get our human rights savaged by wild reactionary autocrats this summer and for the foreseeable future. And we have no strategy for how to protect ourselves from being sitting ducks under reactionary state legislatures.

How do we celebrate in a burning building?