Gerrymandering is not going away any time soon. It will just be used in different manner, a manner in which to achieve congressional districts with a fairer representation of the district’s constituency.

Why won’t gerrymandering go away? The districts are too big at an average of 700,000 people per district. This is the result of Congress freezing the number of Congressional Representatives at 435 in 1929 and reapportioning the districts of each state based upon population every 10 years. The inequality of this methodology can be seen in a comparison between Wyoming with its one Congressional Representative and it population of 586,000 as compared to California and its average size of 700,000 for each Congressional District. If the average was set at 586,000 people per district as Wyoming has, then California would gain 15 more Congressional Representatives.

The Washington Post has an article up on the impact of both unfair gerrymandering and a fairer version of gerrymandering as dictated by the court The later achieves a much fairer split of the districts meant to represent the makeup of the population within the state and their political interests as discovered through national elections.” One state fixed its gerrymandered districts, the other did not.“

The picture depicts the change in numbers of Republicans and Democrats elected to office as determined by the Congressional districts make up. Pennsylvania had its districts redrawn by the court and “a 53 percent majority in the popular vote yielded a hair under half of the contested seats for Democrats — a big difference from 2016, when 48 percent of the vote gave Democrats 27 percent of the seats.”

In North Carolina, the districts were not redrawn. “The old maps were still in place and a electoral result in 2018 was identical to that of 2016. Despite a Democratic wave in which more than half the state’s voters opted for a Democratic House candidate, Democrats won one-quarter of the contested seats.”

Michigan passed Proposal 2 which established a civilian board to redraw the boundaries of the Congressional districts. I suspect it will still have issues as it will be selected by the legislature.

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Senate:

Arizona: “In Arizona’s race for the Senate, two candidates are separated by about 16,000 votes with approximately 75 percent of results in. Republican Rep. Martha McSally was leading her Democratic opponent Rep. Kyrsten Sinema by less than 1 percent in the race to fill outgoing Republican Sen. Jeff Flake’s seat.”

The last I read somewhere, Sinema had over taken McSally and the race was too close to call. This will not throw the Senate into a majority Democrat; but it will narrow the gap just in case a Republican suddenly wants to take the high ground.

Florida: Sen. Bill Nelson is preparing for a recount in a race too close to call against Republican Gov. Rick Scott. Scott held a 0.21 percentage lead over Nelson on Thursday afternoon. Since the results are less than .25 of 1% a recount is mandated under Florida law.

Challenger Rick Scott has filed in court alleging Broward County Supervisors of Election Brenda Snipes on Thursday, asking the court to order Snipes to turn over several records detailing the counting and collection of ballots. Scott’s thin lead over Nelson has narrowed in the vote-counting in the days since he declared victory on Tuesday. Quelle Surprise!

Florida’s phony status as a perennial swing state is reassured again in this election year as it consistently decides important National and State elections with the thinnest of margins and a ton of excuses as to why it happened this way. Since Gore, it still has not brought the voting process under control. As long as it worked for Scott and other Republicans, they were happy. When it starts to slip away from them and their popularity dissipates, they look to the courts to contest alleged violations which were perfectly alright when it favored them.

The irony of Scott and Republican’s anger at Democrats for trying to all the votes counted as Repubs have been suppressing voter turnout in both Florida and Georgia.

Mississippi: Senate candidates in a special election to replace retired Sen. Thad Cochran will go to a runoff at the end of the month because no one candidate received more than 50 percent of the vote. Republican incumbent Sen. Cindy Hyde-Smith received 41.5 percent of votes and her opponent Democrat Michael Epsy received 40.6 percent. The runoff will take place on Nov. 27.

For Mississippi??? and the race is that close? Unbelievable! Stennis was the last Democrat elected to the Senate for Mississippi. I am not sure I would call him a Democrat. He served from 1949 to 1989.

House

Nearly 20 races for the House remained too close to call, with the outcomes uncertain in states such as California, New York, Georgia, New Jersey and Washington state. Rep. Ben Ray Lujan, D-N.M., the chairman of the House Democrats’ campaign arm, said House Democrats were still counting ballots and assessing races too close to call.

California: Some races (6) in California are still up for grabs, including four in the one-time Republican stronghold of Orange County.
Georgia: Republican Reps. Karen Handel and Rob Woodall races remain too close to call as absentee ballots are still being counted. Democrat Lucy McBath, the Democrat challenging Handel, said “this race is far from over.”

Utah: Republican Rep. Mia Love trailed Democratic challenger Ben McAdams. McAdams had a strong showing in his home county of Salt Lake County. Love hoped to flip the deficit by winning a large portion of the votes left to be counted in her stronghold of Utah County. Apparently long polling lines led to slow vote tallies.

Maine: Computer-assisted tabulations under the state’s new voting system will be used to determine the winner of the congressional race between Republican Rep. Bruce Poliquin and Democrat Jared Golden. A test of ranked voting methodology, since neither candidate collected a majority of first-place votes under Maine’s ranked-choice voting system (used for the first time Tuesday); the results triggered an additional round of voting. As I understood this from reading the article, other finishers in the four-way race are eliminated and the votes are reallocated.

The allocation process will take place next week. Voter’s second choice will be applied to the candidates and so on till a candidate secures 50+% of the vote.

This should be an interesting test (Fair Vote Org. has been advocating for this).

Governors:

Florida: In the governor’s race, Democrat Andrew Gillum’s campaign said Thursday it is preparing for a recount. Gillum conceded to Republican Ron DeSantis on Tuesday night. The counting has continued and the race has tightened with DeSantis leading Gillum by .47 of 1% percent.

Georgia: Democratic candidate Stacey Abrams’s campaign argued in a press conference today, a recount or runoff is still possible if all the votes in the state are counted. As he did on Wednesday, Republican candidate Brian Kemp can not declare a victory as thousands of votes remain uncounted and unaccepted ballots have been reconciled.

Abrams through her litigation team demanded from Kemp’s office as the office of the secretary of state to release the data on uncounted provisional ballots and military and overseas votes. Kemp’s spokeswoman Candice Broce claimed those votes amount to around 22,000 to 24,000. There also appears to be some discrepancy on early votes being tallied. The belief is and contrary to what Kemp has stated; if all of the remaining votes are counted, there could be enough additional votes for Abrams to trigger an official recount or even a runoff election.

Kemp should have been more careful on eliminating voters. All of the effort, it was not enough, and if he loses; you can bet on a more thorough investigation on voter fraud and civil rights violations by elected officials.

I am sure there are more to be added to this list. Please do so.

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Ian Millhouser correctly denounces not only Trump’s assault on the 14th amendment but also reporters who print absolutely false assertions.

The issue is Trump’s clearly false claim that he can eliminate birthright citizenship by executive order.

In fact “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States … ” – US Constitution Amendment 14.

Millhouser’s post is too good to summarize, click the link.

Importantly he nails The New York Times tweeting the absolutely 100% false assertion that ” It is unclear whether he can do so unilaterally”.

He also catches CNN falsely saying it is “unclear” and NPR falsely claiming it”isn’t settled”.

The FBI has found no clear evidence that they are deliberately undermining the US Constitution and the very idea of Constitutions. In fact (as in the case of the dread New York Times headline) disgracefully printed 2 years + 1 day ago) they consider it safe to assert a negative. The principle that one can’t prove a negative is turned on its head. They assume it is safe to write and say “unclear” and to say “isn’t”.

I absouutely reject the claims that it is unclear whether the reporters who did this shouldn’t be roasted over a slow fire and that it isn’t settled whether the editors who allowed them too shouldn’t be skinned alive.

I just want to add a few comments.

First Millhouser doesn’t waste space noting that Donald Trump has no legislative authority whatsoever. He claims to be able to rewrite the Constitution by executive order. He can’t even rwrite the law. An executive order must be instructions as to how to faithfully execute the law written by Congress.

I think conservatives (if any read angrybearblog) may suspect me of hypocrisy since I never denounced Obama’s executive orders. They would be wrong. Obama (and his hardworking staff) always explained the basis in law and precedent for his orders. Even DAPA and DACA which seemed extreme even to sympathetic observers, were clearly authorized by the Immigrationa and Naturalization Act which grants the executive vast discretion and legally the same as an uncontroversial executive order signed by George H W Bush (not to mention that DACA was uncontroversial when issued). DAPA was blocked by an extremist judge not on the grounds that it went beyond the INA but on the grounds that it wasn’t preceded by a period of public comment as required by some other law (I think it’s called the administrative procedures act).

In contrast Bush’s absurd claim that he could create military commissions by executive order was rejected by a Conservative Supreme Court.

Another minor point — the “subject to the jurisdiction of ” phrase clearly was intended to say that Native Americans who live in territory not claimed by any great power or by the US Government are not US citizens. This is clear from the relevant context in the main body of the Constitution “excluding Indians not taxed” (search for the dread words “three fifths” and scroll left past a comma). The borders of the USA were not clearly defined when the 14th amendment was drafted. There were treaties with Mexico, Russia, and the British Empire which roughly defined approximately the current borders (except for Hawaii, Guam, Puerto Rico, the US Virgin Islands, American Samoa and what’s left of the Norther Marianas Islands after typhoon Yutu). There were also treaties with native American tribes which hadn’t yet been broken which defined a smaller but aggresively expanding country. The 14th amendment said that, for example, people born in Oklahoma are not necessarily US citizens (don’t worry doesn’t apply to the native born president eligible Senator Professor Elisabeth Warren because that treaty was broken sooner than she was born).

By the way, Don Jr, Erik, Ivanka and Barron don’t have to worry that their dad will deprive them of US citizenship. He is, to our everlasting shame, a US citizen who lived in the USA at least 6 years after turning 14, so they are native born US citizens just like Rafael “Ted” Cruz and just as Barack Obama would be even if he had been born in Mombassa.

Finally Millhouser undestated his case again when he wrote

the Fourteenth Amendment’s words are clear, and the Supreme Court settled any lingering doubts over their meaning in its 1898 opinion in Wong Kim Ark.

In fairness, Wong Kim Ark was not a unanimous opinion — it was a 6-2 decision handed down over a dissent from Chief Justice Melville Fuller. In his dissent, Fuller argued that the Fourteenth Amendment secretly contains a missing word. “Born in the United States, and subject to the jurisdiction thereof,” he claimed, means that a person was “born or naturalized under such circumstances as to be completely subject to that jurisdiction, that is, as completely as citizens of the United States” (emphasis added). Thus, the child of non-citizens may not be “completely” subject to American jurisdiction because they also may also be “subject” to a “foreign power” — their parents country of origin.

The implications of this dissent are simply breathtaking. Had it become the law — and just in case this point is unclear, a dissenting opinion is, by definition, not the law — Fuller’s dissent would establish that any child of non-citizens, even the child of two lawful permanent residents, would not be a citizen.

In fact, the dissent would imply that Don Jr, Erik, Ivanka, Barron and my daughters are not US citizens because their mothers weren’t at the times of their birth. If any taint of foreigness were poison, than one foreign citizen parent would be enough for exclusion.

But, fortunately, Fuller completely invalid assertion of “completely” was absurd and outvoted 6 to 2.

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A Federal Court cleared the way for students who have been defrauded by for-profit institutions (I hesitate to call them schools).

“This court ruling is a major victory for thousands of students across the country who were defrauded by predatory for-profit colleges taking advantage of our broken student loan system. We commend Attorney General Maura Healey for her leadership fighting for students who were left with thousands of dollars in debt after their for-profit colleges collapsed.

The federal student loan system creates perverse incentives that enable bad actors to prey on students. Without adequate protections for students, these predatory corporations will continue to base their business models on the availability of these loans, with little commitment to providing quality education.”

These Obama-era protections and remedies were being blocked by Secretary of Education Betsy DeVos. U.S. District Judge Randolph Moss rejected a request by for-profit college representatives to halt the regulations. Even with the win, the answer from the Department of Education is arrogant in response. Student loan servicers do not hesitate a moment to penalize a borrower with penalties and fees if the are late.

“DeVos and conservatives have said the Obama-era policies are unfair to colleges and too costly for taxpayers. She has proposed creating a stricter standard for fraud claims and eliminating the ban on mandatory arbitration agreements.

But DeVos’ push to finalize those revised regulations has hit an unexpected snag that will delay having a replacement policy on the books by another year. The Education Department said it won’t meet a key Nov. 1 regulatory deadline, meaning that the replacement regulations aren’t likely to take effect until July 2020 at the earliest.”

Hopefully the State Attorneys and others can convince the Judge to hold Betsy DeVos in contempt for not activating the court’s requirements in a reasonable amount of time less than 2 years.

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The Susan Collins Excuse

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As I write, Brett Kavanaugh is not yet a Supreme Court Justice. I assume he will be one soon. I am going to argue that this is the best of the bad possible outcomes.

Yes this is making the best of a bad situation and pathetic motivated reasoning. Yes Collins’s speech drove me into an almost insufferable panic and despair (don’t ask me ask, my soon to be ex-wife if I don’t get a hold of myself [by blogging]). Consider this post emergency marriage therapy (or my bothering you by my recognition of her 8th amendment rights).

First it is clear that a very large fraction of the US public believe that Kavanaugh is a criminal and think it is very wrong for him to serve on the Supreme Court. In polls this seems to be a plurality not an absolute majority.

Also, on Thursday, he demonstrated that he is a raging partisan who aims to use his robe to punish his political adversaries. I think this was already clear to anyone who paid attention, but it is now clear to many people who looked the other way. They include lifelong Republican Justice John Paul Stevens a retired justice who argued against confirmation of a new one. This is unprecedented. The ABA reopened their evaluation of Kavanaugh when it was too late to influence the Senate. I am pretty sure that is unprecedented too. 2,400 law professors signed a viral petition arguing against confirmation of someone who was likely to be incredibly powerful. I suspect this is unprecedented event 3.

This means that the perceived legitimacy of the Supreme Court is in great danger (as it was in 2000 and as it was when the Warren Court decided to take the Constitution seriously). I’d also say that Justice Kavanaugh will attract attention to the misdeeds (torts not crimes) undoubtably committed by Justice Thomas and his felonious denial of those facts under oath. He was never a legitimate Justice, and that will no longer be over looked.

5-4 decisions with Kavanaugh and Thomas in the majority will be perceived to be illigitimate by a very large fraction of the population (I guess eventually reaching a majority but maybe just a plurality). This is exactly what Chief Justice John Roberts fears most — and can prevent any time he wishes. 5-4 decisions with Kavanaugh in the minority will not destroy the perceived legitimacy of the Court or endanger the constitutional order. I hope Justice Roberts (who clearly votes based on the outcome he prefers and can rationalize anything) will act accordingly.

Also packing the court is a very extreme act which would definitely endanger the Republic. It was done — in the 1860s. The congress that changed the number of justices also impeached President Andrew Johnson and refused to seat representatives and senators elected in Confederate states. This followed the Civil War — after killing each other for 5 years Americans were prepared to change the number of justices if necessary.

It was threatened by F. Roosevelt leading to “a switch in time saves nine” a sudden shift from declaring the New Deal unconstitutional to accepting it, because the alternative was a packed court. I may have made a mistake above. I guess Roberts fears court packing even more than he fears perceived illigitimacy — the two are so closely linked it would be hard to tell even with ESP.

One point is that he can avoid both by voting with the Democrats.

Another is that desperate times call for desperate measures. Court packing is preferable to submission to an undemocratic oligarchy and armed revolution and the GOP may leave us only those three choices.

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My understanding is that Bret Kavanaugh presents himself as a textualist, following Antonin Scalia he argues that words in the constitition and laws should be interpreted using their conventional meanings when they were written. This is in contrast to the different approach based on considering legislative history (which is impossible for the main body of the Constitution because the procedings of the Convention were secret). It is in very marked contrast to the approach based on following precedent and deferring to the interpretation made by other judges in the past. This third “living constitution” approach makes statute law like common law mainly a body of precedents. Notably over here (in Rome) no one argues for the third approach. It is a truism that “giurisprudenza non è legge” (jurisprudence is not law I translate un-necessarily since English legal terms come from right here in Rome (unlike the English legal tradition)).

Although not a lawyer, I felt the need to present pretentious introduction so that I might address the question “have I boofed yet”. Don’t worry, I have absolutely no intention whatsoever to answer this question, but I hope you are not shocked to read my confession that, at an earlier period in my life, I have, in fact, farted.

Addressing the Senate Judiciary Committee eminent judge Bart Kavanaugh argued that the slang term “boofed” which he wrote on his page of the 1982 Georgetown Prep yearbook should be interpreted as meaning “farted”. I see that he has no respect for or loyalty too textualism.

First an actual textualist would consider context. The slang term appears in the printed passage (among the oldest surviving exemplars of Judge Kavanaugh’s opus) “Judge, have you boofed yet?” Judge Kavanaugh asserts that he was publicly asking a close friend if he had, as of then, at any time in his life, farted. The word “boofed” alone doesn’t clearly refer to something other than farting. The additional (highly ironic) proper name “Judge” and the words “have”, “you” and “yet” provide enough context to prove beyond reasonable doubt that Judge Kavanaugh is a perjurer, criminal, and felon.

But a textualist considers more than the context within the document undergoing learned exegesis. It is necessary to inquire as to how the word was used by contemporaries of the author. Kavanaugh must explore, and must ask the eminent Senators to explore, 35 year old discussions of anal sex by teenagers to be true to his stated principles.

Or he could just admit that when he was 17 he publicly asked a friend if that friend had fucked a butt yet.

An embarrassing youthful indiscretion is not a felony. But Kavanaugh chose to lie, because that’s what he does.

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A Weak Defense of Citizen United: Ownership v. Control

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Citizens United, Thoroughly Debunked

I admit I haven’t paid too much attention to debates over Citizens United, since I regard the direction taken by regulation, control over who may contribute to political campaigns and how much they can put up, to be misguided.  I would like to see comprehensive control over how much money can be spent on behalf of candidates, period.  (I would also like to see a mandate that all such contributions be funneled through an intermediary, like a public political finance fund, that keeps the identities of donors hidden from recipients.)  While CU has been yet another blow to democracy, the demand that plutocrats use one vehicle to flood the system rather than another is second best.

That said, I was struck by this new critique of CU.  Its authors, Jonathan Macey and Leo Strine, base their analysis on a point I was familiar with in the context of economic debates over the Jensenian shareholder rights theory of the firm, but its application to CU is obvious once you think about it.  The article ranges over a number of topics, but here’s the core, taken from the abstract:

In this Article we show that Citizens United v. FEC, arguably the most important First Amendment case of the new millennium, is predicated on a fundamental misconception about the nature of the corporation. Specifically, Citizens United v. FEC, which prohibited the government from restricting independent expenditures for corporate communications, and held that corporations enjoy the same free speech rights to engage in political spending as human citizens, is grounded on the erroneous theory that corporations are “associations of citizens” rather than what they actually are: independent legal entities distinct from those who own their stock…..[C]orporations do not have owners, they have investors who have contract-based, financial interests in the firms and limited management rights.

The best ideas often seem obvious once they are put forward, but the trick is to see them in the first place.

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