Mar. 06

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New Senate: DEM 49             GOP 51

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Dem pickups: (None)
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Key Court Case on Voting Rights Starts Today

When voters in Kansas try to register to vote at the Dept. of Motor Vehicles, a right guaranteed to them by the "Motor Voter Law," they are sometimes asked for proof of citizenship. In some cases, the registration is approved on the spot but later the voter is asked for proof of citizenship. For people without a passport or birth certificate—or the money to get these documents—they are told they can't vote. Kansas Secretary of State Kris Kobach has been a huge supporter of laws preventing people from voting if they can't prove they are citizens. Today he gets his day in court.

The trial in Kansas City, KS, before U.S. District Judge Julie Robinson, will determine if Kobach has the legal authority to demand written proof of citizenship from potential voters. The case is being brought by the ACLU on behalf of six Kansas residents who have been denied the right to register to vote. The ACLU's legal argument is that the "Motor Voter Law" does not state that voters must produce proof of citizenship. Registrants do have to state under penalty of perjury that they are eligible to vote. The question is whether that is enough. Kobach says that of the 1.8 million registered voters in Kansas, he found 43 noncitizens registered and 11 of them voted. That's 11 illegal votes out of 1.1 million cast in 2016 (0.001%), but Kobach thinks that is sufficient grounds to require proof of citizenship, even though it potentially disenfranchises about 10% of the population. The people disenfranchised are mostly minorities and poor people who can't afford time off from work to get a birth certificate or else can't afford the fee. Most of these people vote Democratic. Kobach, a Republican, knows that very well.

No matter what Judge Robinson, who is black and a George W. Bush appointee, rules, the losing side is certain to appeal to the U.S. Court of Appeals for the 10th Circuit in Denver. That court is already on record calling the Kansas law "a mass denial of a fundamental constitutional right." No matter what the 10th circuit court decides, the case is certain to be appealed to the U.S. Supreme Court. There, Justice Anthony Kennedy will make the final call, as is the case with virtually everything controversial in the U.S. (V)

Thad Cochran to Resign April 1

As Alabama goes, so goes Mississippi? Well, not really, but yesterday's announcement by Sen. Thad Cochran (R-MS) that he will resign from the Senate on April 1 is definitely not good news for his party. Cochran is 80 and has had serious health problems for years, and he finally decided he could no longer perform his duties as a senator. His resignation does not come as a surprise to anyone who follows politics closely (or who is a regular at Cochran has been away for months and shows up in the Senate only when a key vote is called.

The politics of Mississippi are muddy and complicated. To start with, Gov. Phil Bryant (R-MS) will appoint an interim senator who will serve until a special election for the remainder of Cochran's term can be held in November. Sen. Roger Wicker (R-MS) has already drawn a challenger: tea partier Chris McDaniel. McDaniel ran against Cochran in 2014 and actually beat in in the first round of the primary, but got only 49.6% of the vote, forcing a runoff that Cochran (barely) won. With both Mississippi seats up in November, McDaniel may decide that beating an appointed senator who has barely learned the ropes may be easier than beating Wicker, who has been in the Senate since 2007.

If McDaniel switches to the special election and runs in the primary against whomever Bryant appoints, we will have the Mississippi version of what happened in Alabama last year: a right-wing insurgent challenging an appointed senator. If McDaniel wins the primary and the Democrats can find a strong candidate, the combination of the black vote and the white suburban vote could put the Democrat over the top. A lot of planets and stars have to align for this to happen, but it could happen. One factor in the Democrats' favor is that blacks make up 37% of the Mississippi population, vs. 25% in Alabama. That gives the Democrat a bigger head start in Mississippi than in Alabama, and we know how that one ended.

It is worth noting that there is one big wildcard here: The Wicker election will be a regular election, with party primaries and a Republican vs. Democrat general election in November. The Cochran replacement, however, will be chosen in a jungle election, in which the top two candidates, regardless of affiliation, will advance to the final round if no single candidate claims 50% of the vote. Needless to say, this gives McDaniel something to think long and hard about: Is he better off facing multiple opponents, none of whom has won a Senate election, or is he better off facing one opponent, who has won a Senate election? Further, the jungle primary could generate all sorts of unusual results. One of those—albeit an unlikely one—would be if something like five Republicans split the GOP vote semi-evenly, and two Democrats split the Democratic vote. Then you could actually have a Democrat vs. a Democrat, like a California election. Much more within the realm of possibility would be that a fringe Republican and a moderate Democrat emerge from the first round. And if McDaniel decides to remain in the race against Wicker, and somehow unseats him, the Magnolia state could end up two Senate races of that sort. In that scenario, the Democrats might start to drop serious money in Mississippi, while pulling out all the stops to get black voters to the polls.

If 2019 begins with Democratic senators in Alabama and Mississippi, Donald Trump will certainly have made good on his promise to shake things up in Washington. (V & Z)

Sam Nunberg Will Refuse to Comply with Mueller's Subpoena

Russiagate is moving into uncharted waters. Special counsel Robert Mueller's grand jury has subpoena former Trump campaign aide Sam Nunberg to testify. Nunberg's response: "Screw that. Why do I have to go? Why? For what?" He is basically daring Mueller and the Justice Dept. to do something. In an interview with CNN's Jake Tapper, Nunberg said: "I'm not cooperating. Arrest me. You want to arrest me? Arrest me."

The next move is up to Mueller, and also to Deputy AG Rod Rosenstein. If Nunberg just refuses to comply with a subpoena and nothing happens to him, it sets a precedent that future witnesses will surely follow. On the other hand, a judge could say to him: "Your call. And when you are released from prison in 30 days, you will get a new subpoena. We can repeat this process until Hell freezes over if you like." That sends a different message to future witnesses. Mueller can plan a strategy now, but he will certainly have to clear it with Rosenstein, which puts Rosenstein on the spot. This could get messy, something that Nunberg seems to have realized sometime Tuesday afternoon, because in the evening he began to hint that he might just abide by the subpoena after all. He's not certain, though, so stay tuned. (V)

Cohen Complained about Non-Payment

On Monday, the Wall Street Journal reported something that some people suspected: Trump lawyer Michael Cohen really did pay off porn star Stormy Daniels with his own money, as he claimed, but he is unhappy that he has not been reimbursed for the $130,000 he paid her for her silence, and has been complaining about that fact.

Assuming that the WSJ's reporting is correct, it creates at least two problems for the members of Team Trump. The first is that Cohen previously suggested that he "facilitated" the payment of his own volition, without thought of repayment. That was pretty hard to swallow, but he said it, and now it would appear he was lying. The Bar Association may want to chat with him about that. Meanwhile, if Cohen was and is expecting repayment, then it becomes harder and harder to craft a scenario where this was not a campaign donation. And if it was a donation, it was unreported, which makes it illegal.

We will see what comes of this but, at very least, it would seem we have yet another Trump lawyer who cannot keep his mouth shut. Whether it's Ty Cobb talking too loudly in a restaurant, or Marc Kasowitz threatening people via e-mail, or Cohen whining about non-payment, Trump's legal team is the loose lips brigade. Of course, maybe they're just taking their cues from the boss. (Z)

Next Tuesday's Special Election in PA-18 Could Be the Canary in the Coal Mine

A week from today, voters in the nearly all white, mostly blue-collar PA-18 congressional district in the southwest corner of the Keystone State will go to the polls to elect a new congressman. The seat is vacant because the former representative, Tim Murphy (who is married), was a fierce foe of abortion except when his mistress got pregnant. Exit Murphy. The district is R+11, Donald Trump won it by 20 points, and the RNC and its allies have pumped $9 million into the campaign of Rick Saccone (R), so it should be a really easy win for Saccone. But polls show him barely ahead of Democrat Conor Lamb, a Marine veteran and former prosecutor. Republicans are scared witless about losing. If this district isn't safe, no district is. Even if Saccone wins by a couple of points, it will scare a lot of Republicans and may result in more retirements.

Axios' Mike Allen talked to Chris Krueger of the Washington Research Group, a respected D.C. think tank, about the PA election and beyond. Krueger said it already looks grim for the GOP for four reasons:

In politics, a week in a long time, and things could change, but analysis after analysis shows that the Republicans have a problem coming up in November. (V)

Trump Pumps Up the Trade Pressure on Canada and Mexico

Donald Trump has made it crystal clear that when his steel and aluminum tariffs go into effect, there will be no exemptions for Canada and Mexico. However, he did make it known that if they give Trump what he wants on NAFTA, he might give them a better deal on the tariffs. This certainly ramps the pressure up on both countries. Canadians are always very polite and hate to make anyone angry, so they might budge at least somewhat, eh. Mexico is a different story. If Andrés Manuel López Obrador, aka AMLO, wins the July presidential election there, it is doubtful that he will give much ground because he hates Trump with a passion and giving in to him just after an election would look bad. In any event, Trump is trying to put a lot of pressure on Canada and Mexico and it is hard to see how this ends up. As a general rule, screwing your best buddies is not a good long-term strategy.

Trump also has at least three other problems. The first is that Congress hates the tariff idea so much that they are actively working to undermine his plan, negotiating to reduce tariffs on hundreds of items so as to offset the increase on steel and aluminum. It's not clear that the legislature will actually reach agreement, since they have so much trouble with that these days, but there is (rare) bipartisan cooperation going on, as most Republicans hate tariffs and most Democrats hate Trump.

Another (slight) issue is that one of these days, someone might get out a copy of the Constitution and notice that it says this:

The Congress shall have the Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.

What happens if someone affected by the tariffs—say, the owner of a company that makes steel pipes—files suit on the basis that Trump's decision is not Constitutional, since he's not "The Congress"? This is an area of the law called nondelegation doctrine, and it has not been especially well explored by the courts. For example, the SCOTUS has ruled, in J. W. Hampton, Jr. & Co. v. United States (1928), that the Congress can delegate powers to the executive, as long as they provide "intelligible principle" to guide the executive branch. However, just seven years later, in Panama Refining v. Ryan, the Court struck down a provision of the National Industrial Recovery Act that granted FDR the right to prohibit interstate petroleum shipments, declaring that Congress had, "no criterion to govern the President's course." Given that precedent, a lawsuit challenging a presidential tariff certainly has a puncher's chance.

This leads us to the third problem. Trump's authority to levy tariffs comes from Congress, which has (legally or not) delegated that responsibility to the president in certain scenarios. The particular authority that Trump has claimed, namely that he's imposing the tariffs in the interest of national security, comes from Section 232 of the Trade Expansion Act of 1962. Not only is this provision rarely used (1983 was the last time), and not only does it give other countries an engraved invitation to retaliate in the name of their own "national security," but Trump's declarations on Monday have effectively cut off his own argument at the knees. If he's merely negotiating, as a businessman is wont to do, then this is not a question of national security. Given the case law discussed above, Trump's authority to impose the tariff (and Congress' power to delegate that power) becomes all the more tenuous.

In short, we have yet another situation where Trump—an impetuous, amateur politician with only a crude grasp of the complex issues he is supposed to engage with on a daily basis—has made a mess for himself. Time will tell if he keeps pushing forward, and if he does, whether he's able to make it stick. Between the Muslim bans, and DACA, and the transgender soldier ban, getting his unpopular orders to stick has not exactly been Trump's specialty. (V & Z)

Washington Passes Net Neutrality Law

Those who are interested in how federalism works are getting quite an education these days. The latest lesson comes courtesy of the state of Washington, which passed a law requiring all Internet service providers in the state to practice net neutrality (that is, to not give priority to some traffic over other traffic). The bill was promptly signed by Gov. Jay Inslee (D).

The Evergreen State's political leadership has a few reasons for taking this course. In part, the state relishes any opportunity to extend a middle finger in the general direction of the Trump administration. In part, they want to protect their residents. And in part, they have hope that if a few states (ahem, Oregon and California) follow suit, then it will be easier for ISPs to just have a one-size-fits-all policy nationwide, as opposed to being net neutral in some states but not in others. This is the same reason, for example, that most cars meet California's stringent environmental standards—it's just easier for the companies that way.

We're in something of a gray area of the law here. On one hand, the FCC declared that individual states were not allowed to pass their own net neutrality rules. On the other hand, an FCC regulation is not exactly a law, and by the terms of the Tenth Amendment, states have broad authority to pass their own laws, as long as they don't run contrary to federal law. Inslee, for his part, is confident in his position, declaring that, "The states have a full right to protect our citizens where the federal government has gone AWOL." We will see if FCC Chair Ajit Pai & Co. decide to challenge him—after they deal with the lawsuit that has been filed by 22 state attorneys general. Whatever happens, it's going to take a while to work out in court. So long that there could well be a new FCC Chair in place, one who overturns Pai's decision. So, the death of net neutrality is far from a done deal. (Z)

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