Tag Archives: SCOTUS

A dubious guide to US election terminology

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US ELECTION GLOSSARY 

With just two weeks to go until US election day this might be a useful guide to some of the phrases you will be hearing a lot over the next fourteen days. Americans don’t do things the way we do in ‘Yurp’. The most obvious case in point is that merely winning a clear majority of the popular vote doesn’t mean you are entitled to be President. That’s because they didn’t actually abandon the notion of ‘states’ rights’ after the Civil War. In the USA they have something called the Electoral College. In Ireland this would be a fee paying second level school designed to give your child an edge in the Leaving Certificate. In America it’s designed to give an edge to Presidential candidates who lose the popular vote – of which there have been two, both Republican, in the last twenty years.

For example, a vote in Wyoming or Montana is not just any ordinary vote. In those two states around a million voters get to decide the destination of six electoral college votes. California has a population of 40 million people. So, you might expect that it would have 240 Electoral College votes, right? As in 6 X 40 = 240. But it doesn’t work like that. California has 55 Electoral College votes based on its 53 members of the House of Representatives and 2 Senators. So, a Presidential vote in Montana or Wyoming is worth quite a bit more than in California when it comes to influencing the outcome. 

Anyway – you probably know all that already. Below, in alphabetical order, are some other concepts to get your head around. 

‘Blue’ States and ‘Red’ States: In Europe blue tends to be a colour associated with a ‘conservative’ political outlook while ‘red’ usually indicates a progressive or left of centre philosophy. In the United States, as with so many things, those colours are reversed. The more conservative Republican party has long since appropriated the colour red, and the Democrats own the colour blue. This will make things far more confusing for a European audience. 

Blue shift: The opposite of ‘Red Mirage’ (see below). This is where postal ballots are counted and alter the ‘in person’ vote tally. Historically more Democrats than Republicans opt for postal ballots, a phenomenon likely to be accentuated because of the pandemic and because they don’t want to destroy the US Postal Service. Blue shift is where these Democratic postal ballots impact upon (but do not necessarily alter the result of) the election. For example, in the swing state (see below) of Pennsylvania in the past four Presidential elections there has been a ‘blue shift’ of 20,000 votes after the postal ballots have been counted. This could be considerably higher in 2020 with far more postal ballots being cast in the state, and could be enough to counter-balance a ‘red mirage’ whereby President Trump finished ahead of Joe Biden in the ‘in person’ vote. 

A data firm called Hawkfish (associated with the Democratic party) has predicted that the Election Night results (some of which will include postal ballots where they have been counted before 3 November) will show Trump in the lead and on course for a phenomenal 408 Electoral College (see below) votes. By 7 November, with 75% of ‘mail-in’ votes (see below) counted Biden will take the lead in the Electoral College with 280 votes. When all the votes are counted (sometime in 2034) Biden will have 334 Electoral College votes. What Hawkfish haven’t predicted is what the Republicans will do between 3-7 November to ensure that as few ‘mail-in’ votes are counted as possible.  

The Electoral College: Here you need to get out of your heads any idea of young people in their teens or early twenties staging drinking parties, using words like ‘sophomore’ and ‘varsity’ and shouting ‘Go Trojans’ through funnel-like megaphones. The Electoral College is a mechanism whereby the people of the USA do not directly elect their own President and ensures that smaller (generally more rural and more Republican) states are not overwhelmed by the much larger voting populations of the bigger states. Quite the contrary, as a matter of fact, thanks to the system installed by the ever wise and sagacious Founding Fathers (the ones who concluded that a slave was ‘three-fifths of a person’ ) smaller states have a voice in the Electoral College out of all proportion to their size. Part of the problem (if you’re a Democrat) is that all but two states operate a ‘winner take all’ system, so that if you win the state by a single vote you get all that state’s Electoral College votes. (Does it remind anyone of the equally democratic UK ‘first past the post’ system?)

Mail-in ballots:   These, according to President Trump, are the spawn of the devil, except when they are absentee ballots, in which case they are just fine because he uses them himself. The precise difference is so hard to explain that it’s hardly worth the effort. An absentee ballot tends to be something you apply for because, for some valid reason, you are unable to vote in person on election day. Except that it’s not. Thirty-six of the fifty states offer ‘no excuse’ absentee ballots for which you can apply without offering a reason why you’re really sorry but you won’t be able to show up at an actual polling station. You can merely be washing your hair that day and they’ll give you one. You then fill it out and post it off and it has the same status as the absentee ballots of which President Trump approves. What really pisses him off though are the states (Hawaii, Oregon, Washington, Colorado, Utah) that operate a universal ‘mail in’ voting system in elections and which automatically send a ballot out to each registered voter. Then it’s up to you whether or not to use it to vote or to make a paper aeroplane.   

Poll Watchers: You should be able to recognise them on election day because they are likely to be wearing MAGA baseball caps, QAnon tee-shirts and toting automatic weapons as they valiantly attempt to hold back the wave of fraudulent Democratic voters casting ballots on behalf of people who died in the 19th century and who last voted for Grover Cleveland. 

Red Mirage: The opposite of ‘blue shift’ (see above). This is the phenomenon where President Trump (and other Republican candidates) win a plurality of ‘in person’ votes and appear to have won a state on the night of the election. However, in some states where postal ballots are not counted until after ‘in person’ votes are tallied, the postal ballots are expected to show a significant Democratic party majority (far more registered Democrats (69%) have indicated that they will vote by mail than is the case with registered Republicans (19%) ). Hence the notion that the Republican ‘in person’ plurality is a temporary phenomenon only and is therefore a ‘red mirage’. In Florida in the 2018 mid-term elections, for example, the significant leads of many Republican candidates proved illusory as ‘mail in’ vote was counted, and Florida is a state that actually permits ‘mail in’ votes to be counted before election night. 

Safe harbo(u)r: 

Q: Does this refers to …

a) where we hope to be from Inauguration day 2021 to, at least, Inauguration Day 2025 (when we could end up with President Tucker Carlson or President Tom Cotton)  

b)  the final date by which states must have completed their counts and certified the winner of the Presidential poll in their jurisdiction. 

c) Canada

d) Secession

A:  b) – though the other three options are more attractive.

SCOTUS: The acronym for Supreme Court of the United States. Where the result of the entire Presidential election, like the 2000 Florida contest, is likely to end up and where most of the Justices have been appointed by Republican presidents who did not manage to secure a majority of the votes of the American electorate and have been confirmed by Republican-majority Senates where 70% of the membership represent 30% of the electorate. The almost inevitable appointment of Judge Amy Coney Barrett next week will have a pivotal impact. The eight-person SCOTUS recently split evenly on a lower court ruling that allowed the State of Pennsylvania three days leeway on the acceptance of ‘mail-in’ ballots. The even divide meant the lower court decision stood. The introduction of President Trump’s third SCOTUS nominee in three years will ensure, at the very least, that there will be no more split decisions. Is a Republican SCOTUS nominee more likely to make a ruling favourable to a Republican President? Is the Pop …? … just watch this space.

Swing states:  This has nothing whatever to do with intra-marital sex. The idiosyncratic Presidential election system in the USA has put two of the last three Presidents (both Republican) in the White House despite their losing the popular vote, though George W.Bush was re-elected in 2004 with a popular majority. The Electoral College system almost guarantees that a small number of states (around half a dozen) where Presidential races are traditionally tight, have a disproportionate influence on the result of the contest and, therefore, attract a disproportionate amount of the candidates’ campaigning time and advertising revenue. These states include Florida, Pennsylvania, Michigan, Wisconsin, Minnesota and North Carolina. In times past Ohio and Iowa might also have been included. Current polls show Joe Biden ahead in most ‘swing’ states, although in the case of Florida and North Carolina, his lead is well within the margin for error.    

Voter suppression:  This take many forms and, traditionally, is a parlour game in which Republicans try to ensure that as few people of colour as possible are allowed to vote because it is assumed that they are too smart to vote against their economic interests (i.e. Republican). Obstacles put in the way of potential voters are the necessity to produce picture-ID at polling stations (widespread), the withdrawal of the franchise from convicted felons (Florida), the menacing presence of white men with armbands hanging around polling stations calling themselves the National Ballot Security Task Force (New Jersey Gubernatorial election, 1981), and Russian Facebook ads designed to discourage people of colour from voting because their candidate secretly hates them (The Internet). Added to the above list in 2020 will be the disqualification of absentee ballots because they have not been properly perfumed before despatch and don’t bear the legend ‘SWALK’. 

How the Electoral College votes are distributed – (this bit may actually be useful on the night!)

SCOTUS, POTUS AND ALLOFUS

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SCOTUS

Does history suggest that the US President has the moral right to appoint a new Supreme Court Justice in an election year?

First off, let’s not kid ourselves by using the word ‘moral’ in the same sentence as ‘US President’, especially not in 2020. Appointing a Supreme Court justice has always been a plum to be plucked from the eponymous fruit tree by any incumbent of the Oval Office. With a third appointment looming, President Trump is hoping to have enough fruit for a jar of plum jam before the end of this year.    

The answer to the question posed above seems to depend on whether a) the President in question is a Republican or a Democrat b) which party controls the Senate, and c) just how much cynicism and utter shamelessness Senate Majority leader Mitch McConnell (R-Ky) can muster. Given that he didn’t even bother to wait until rigor mortis had set in before announcing that the Senate was ready to replace Ruth Bader Ginsburg by Sunday brunch, his lack of self-reflection runs even deeper than any previous diagnosis indicated.    

The Notorious RBG

Back in 2016, according to Senator McConnell, it appears to have been morally repugnant to appoint a Democratic nominee, Merrick Garland, as an Associate Justice of the Supreme Court of the United States (SCOTUS – they do love their acronyms!) in March of a Presidential election year – i.e a full eight months before the 8 November polling date. But, in 2020 it seems to be just dandy to start the same process less than eight weeksbefore another Presidential election. 

Of course the two situations are entirely different. The truth can be found in the Chinese Zodiac.

Chinese papercut art in for the year of the monkey 2016.

2016 was the Year of the Monkey while 2020 is, with a certain poetic inevitability, the Year of the Rat. Everyone knows that in a Year of the Monkey (1932, 1944, 1956, 1968, 1980, 1992, 2004, 2016) it is not permitted, under an obscure amendment to the US Constitution of which only the senior Senator from Kentucky seems to have had sight, for the incumbent President (provided he is a Democrat) to appoint a new Associate Justice to a Supreme Court vacancy. These rules change completely, however, during any given Year of the Rat (1936, 1948, 1960, 1972, 1984, 1996, 2008, 2020). The Founding Fathers knew exactly what they were doing (as with the right to bear arms against pre-school children and the fabulously democratic Electoral College) when they favoured a rodent over a primate in framing this ‘lost’ amendment to the Constitution. It appears to have been re-discovered by the Senate Majority leader hidden underneath the original document in the National Archives where it had been carelessly placed by an absent-minded Alexander Hamilton who was late for a production meeting with Lin Manuel Miranda. Chapeau Senator!  

If Mitch has the brass neck to try and push through Trump’s nominee (probably female and due next week) it will mean the 45th President will have manged three picks in a single term. That would be a good strike rate, but not overly impressive if we look at the history of Supreme Court appointments.  

Some Presidents got to nominate a hell of a lot of justices. Obviously George Washington is the Olympic gold medallist in this particular discipline because he appointed all the members of the very first Supreme Court (there were six back then). He has a personal best of eleven appointees over eight years. Franklin Roosevelt comes next, largely because he was in office for most of the 20th century. His PB was nine, over almost a dozen years in the White House. He tried really hard to beat Washington’s total though (see below). William Hoard Taft holds the record for a one-term President with six appointees, before becoming Chief Justice himself (he wasn’t one of his own nominees by the way – he was appointed by half-term President Warren Harding in 1921). 

If Trump succeeds in appointing a replacement for Ruth Bader Ginsburg and, in the process, changes the political complexion of the Court for a generation, would a newly elected Joe Biden have any possible comeback? Indeed he would. There have been nine SCOTUS justices on the Supreme Court bench since the passing of the Judiciary Act of 1869 – before that the number varied between six and ten. The total is determined, not by the President, the Court itself, or the Constitution, but by Congress. So, nothing like a time-consuming and unwinnable constitutional amendment (requiring the ratification of 38 states) is needed to change the status quo.

In 1937 Franklin D. Roosevelt, frustrated at having many of his New Deal reforms stymied by adverse Supreme Court decisions against the constitutionality of many of his measures proposed to, in effect, ‘pack’ the Supreme court with a majority of his own nominees. He sought to introduce legislation which might have had the effect of increasing the number of justices to fifteen. He wanted the power to appoint a new justice for every incumbent who opted not to retire at the age of seventy. In this particular political sleight of hand he was thwarted by members of his own party and the exclusive (male) club remained nine strong. It has done so to this day.

Mitch

However, given the ’tradition’ that Senator McConnell established in 2016 and will conveniently ignore in 2020 (I won’t insult your intelligence by mentioning the Jesuitical reasoning by which he has informed his conscience, so that it allows him to flout his own ‘rules’) it should be in order for President Biden and a Democratic Congress to restore some political balance to the SCOTUS by adding one, or even two new, credible, and suitably qualified posteriors to the bench. That would make up for the SCOTUS pick denied President Obama in 2016, and newly elected President Biden (God that sounds soooo good) in 2020. 

And in case you are worried about having an even number on the court if he stops at one new appointee, fear not. In the event of a tied decision all cases go into overtime as the concept of a draw is not recognised in any truly American sport. Actually that’s not true, in the event of a tied vote the decision of the lower court being challenged in the high court, is duly confirmed. 

So, even if the handful of Republican Senators who have voiced opposition to a promotion to the SCOTUS during an election year are cajoled, bullied or intimidated into resiling from  the position held to so fervently by their own Majority leader in 2016, there are historical precedents for the Supreme Court bench to number more than nine Justices and there is no impediment to Congress adopting that course of action in 2021, the Year of the Ox.