Tag Archives: US Supreme Court

Colorado Elector’s Case
Stirs the Electoral College Pot

By Jim Ellis

Colorado Elector Michael Baca / 9NEWS

Aug. 26, 2019 — Reports came out late last week that the 10th Circuit Court of Appeals sitting in Denver ruled in favor of a former Colorado Elector, Michael Baca, who filed a constitutional lawsuit against the state. In the 2016 Electoral College vote, the Colorado Secretary of State removed Baca from the delegation after he informed state authorities that he would not vote for Hillary Clinton when the Electoral College met.

Thirty states, including Colorado, have a statutory requirement that the official electors, in Colorado’s case nine individuals, cast their vote for the presidential candidate who carried the state. In the 2016 election, Hillary Clinton carried the Centennial State over Donald Trump, 48-43 percent.

Baca was coalescing with other electors around the country, the so-called “Hamilton Electors,” who thought they could convince enough members in Trump states to vote for another candidate in order to force him below the 270 minimum electoral vote threshold. In the election, Trump’s victory states awarded him 306 electoral votes. Places like Colorado, however, that went for Clinton, would do Trump no damage if its electors did not carry through with the voters’ expressed desire, illustrating one of several ways that the “Hamilton” strategy was fundamentally flawed.

After Baca’s removal, he quickly filed his lawsuit arguing that his constitutional rights were violated because the state has no authority to bind its electors. Baca lost at the federal district level but now has won a 2-1 appellate decision before a three-judge panel.

What happens now? The 10th Circuit is in conflict with a previous Washington state Supreme Court ruling that came to the opposite conclusion. Thus, it is likely that the US Supreme Court will be petitioned though the Washington ruling, because it comes from a state court, is a lesser factor in the federal domain.

The Colorado elector legal action, like the Compact Coalition that is attempting to convince states holding a majority of electoral votes to agree to have their electors vote for the national popular vote winner regardless of how the individual state voted, is designed to eliminate the Electoral College’s power and change the US voting system to a straight popular vote.

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9th Circuit Court of Appeals
Could Force Arizona’s Hand

By Jim Ellis

Appointed Arizona Sen. (and former representative) Martha McSally (R)

Aug. 13, 2019 — Soon after Republican Congress-woman Martha McSally was appointed to the Senate, a group of Arizona voters — two Democrats, a Repub-lican, a Libertarian, and an Independent — challenged the length of time that she could serve without going to election. Now the case awaits a ruling in the 9th Circuit Court of Appeals that could force the state to hold an early special election.

Sen. John McCain (R), who was re-elected in 2018, passed away in late August almost a year ago, on the 25th. Gov. Doug Ducey (R) then appointed former Sen. Jon Kyl (R) to serve until the 2020 election, but Kyl only pledged to stay through 2018. He then resigned before the new Congress took office at the beginning of this year. Gov. Ducey responded by appointing then-Rep. McSally (R-Tucson), who had just lost the 2018 open seat US Senate election to then-Rep. Kyrsten Sinema (D-Phoenix).

Because Sen. McCain died so early into his term, there would be an appointment followed by a special election. The appointment would extend to the next general election in 2020, with the winner serving the balance of the term. Therefore, whoever wins next November’s special election wouldn’t be eligible to run for a full six-year term until 2024.

Under Arizona law, which is similar to succession laws in 35 other states, the governor appoints an interim senator who serves until the next regular election. In 14 states, which have systems similar to what the plaintiffs are demanding, a special election is scheduled at the earliest possible date according to the individual state law.

In Sen. McSally’s case her interim term would stretch to 27 months, which the group of plaintiffs argues is too long a time to not give the voters a say. The federal district court judge rejected the argument, but the plaintiffs appealed to the 9th Circuit. Late last week, the appellate court agreed to hear the case, and will do so in an expedited manner.

The 2020 Arizona special election promises to be one of the most hard-fought campaigns during the cycle. Even at this early date it is already clear that the two major party nominees will be Sen. McSally and retired astronaut Mark Kelly (D), who is the husband of former US Rep. Gabrielle Giffords (D-Tucson).

The contest is already almost at fever pitch. In fact, Kelly raised more money in the 2nd Quarter than any other US Senate candidate, $4.24 million, but he was closely followed by Sen. McSally who raised the second-most of any federal candidate in the country, $3.4 million. Kelly had $5.9 million cash-on-hand at the end of June while Sen. McSally had $4.4 million.

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New Nevada Data

By Jim Ellis

Nevada-mapOct. 11, 2018 — The new NBC News/Marist College survey (Sept. 30-Oct. 3; 920 NV residents; 780 registered Nevada voters; 574 likely Nevada voters) detects movement toward the Republicans in the two major Nevada statewide races (governor and senator), while keeping both contests in the pure toss-up column.

Marist College is an “A” rated pollster from the 538 statistical analysis organization and has partnered with NBC News since the 2012 election. Already releasing several statewide polls this year, Marist tested the Nevada electorate knowing that Sen. Dean Heller (R) is embroiled in a tough re-election campaign against freshman Rep. Jacky Rosen (D-Henderson), while the open governor’s race, featuring Attorney General Adam Laxalt (R) and Clark County Commissioner Steve Sisolak (D), had begun to turn toward the latter.

According to the NBC/Marist ballot test results, Sen. Heller posts a 46-44 percent edge among likely voters and an almost identical 45-43 percent within the registered voter sample. When the Libertarian Party nominee is added and a question asking whether any of the candidates are satisfactory, Sen. Heller maintains the lead, 44-42 percent, with eight percent going to Libertarian Tim Hagan, and another two percent saying they want “none of these candidates.” Among registered voters, the respondents split 42-41-8-3 percent in Sen. Heller’s slight favor, with Rep. Rosen closely following, and Hagan and “none of the above” trailing respectively.

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Forecasting the Results – Part II

By Jim Ellis

2018-democrat-house-majority-breakdown-text-graphicOct. 8, 2018 — The Democrats need to convert a net 24 seats to secure a one-seat majority in the US House on Election Day, Nov. 6. Many reports quote the number 23 as what is necessary to win control, but the new Pennsylvania map will yield one seat coming back to the Republicans — the new open 14th District — thus pushing the total up to 24.

As stated Friday, our forecasts listed below are based upon a series of factors, including current polling numbers, voter history, candidate personal and job approval favorability, fundraising, other races on the state ballot that could drive turnout, and outside issues such as the confirmation vote to for Judge Brett Kavanaugh to become a Supreme Court Justice, which could change the turnout model, etc.

According to our new analysis, the Democrats are on the cusp of converting the requisite number of Republican seats to take a bare majority and seeing their caucus become significantly larger. At this point, the Democratic gain range appears to reach 23 on the low side and 35 at the apex.

Looking at the country by state and region, it appears the Democrats will do well in the Midwest, in particular. The Great Lakes region that delivered President Trump his surprise victory appears to be snapping back to the Democrats in the midterm House races. Michigan looks particularly good for them at both the statewide and district levels.

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Gerrymandering Ruling in North Carolina Could Alter Majority

North Carolina Congressional Districts

North Carolina Congressional Districts


By Jim Ellis

Sept. 3, 2018 — Last week, the same three-judge panel that previously ruled the North Carolina congressional boundaries as unconstitutional did so again, well after the lines were re-drawn in 2016 to reflect one of their previous decisions.

Predictably, the two Democratic judges ruled to overturn the legislature’s map once again, with the lone Republican dissenting. This time, the ruling concerns political gerrymandering, after the panel originally tossed the map because of what they cited as “racial gerrymandering.” The North Carolina delegation has split 10R-3D since the original 2011 map was created after the 2010 census.

The latest action, coming at a time when the US Supreme Court has only eight members because Judge Brett Kavanaugh has not yet been confirmed to replace retired Justice Anthony Kennedy, could stand if the high court fails to halt or invalidate the ruling.

If the decision remains, it becomes very unclear as to how the election would proceed. If the lines are suddenly unconstitutional, a new map would have to be set in its place. At this point, it is probable that the court would usurp the state legislature’s constitutional power and force its own map into law.

What happens to the candidates who won the May primaries, or even lost, as in the case of Rep. Bob Pittenger (R-Charlotte), remains in flux. It is likely many lawsuits would be filed, likely from candidates who won primaries but were denied the chance of running in the subsequent general election, to voters who would be disenfranchised after voting for a candidate who, after being nominated, no longer appears on the ballot because the particular voter has been arbitrarily shifted to another district, and every argument in between.

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