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Shelby Linkage

The Supreme Court just released their opinion on Shelby County v Holder this morning. By the time Texas political junkies are done with Wendy-palooza later tonight, I suspect there will be more attention given to the implications of this. I'm still reading through the opinion itself and collecting links for the time being. So here's a compendium of all that:

» The SCOTUS ruling itself.

» Michael Li: Supreme Court strikes down section 5 coverage formula - the impact for Texas
» Texas on the Potomac: Supreme Court strikes down key provision of Voting Rights Act, narrows its scope
» Statesman: U.S. Supreme Court strikes down preclearance formula
» WonkBlog: Voting Rights Act ruling: Here’s what you need to know
» NY Times: The Formula Behind the Voting Rights Act
» Wash. Post: Areas covered by Section 5 of the Voting Rights Act
» SCOTUSblog's Background page for Shelby.
» Quorum Report: By Knocking Down Section 4, SCOTUS Has Cast Big Doubts on Continued Viability of Pre-Clearance Section of Voting Rights Act
» Bloomberg: Voting Rights Act Provision Struck Down by U.S. High Court
» Wash. Monthly: Voting Rights Dominoes Start To Fall
» Wash. Monthly: Throwing Away the Umbrella


Cache Clearance: Post-Bill Filing Deadline Edition

A simple and straightforward clearing of the cache. Happy reading if you're into that sort of thing. There are redistricting maps out for the session, but I think most folks are hoping there are no fireworks that accompany them. But just out of curiosity, I'll probably find a little time to convert them to a Google map and roll out some data.

» NY Times: How a U.S. Citizen Came to Be in America’s Cross Hairs

» Reason: The Supreme Court Considers Biotech Seed Patents

» Nate Silver: In Supreme Court Debate on Voting Rights Act, a Dubious Use of Statistics

» Wonkblog: Revenge of the sources

» New Republic: Facing the Facts Doesn't Always Change Minds

» Washington Post: School ‘resegregation’ cited in study

» Bruce Bartlett: Wealth, Spending and the Economy

» Columbia Journalism Review: Fair share


Obamacare Goes to Court: Day Two

» NY Times: Hard Questions From Justices Over Insurance Mandate

Doesn't sound like the individual mandate had a good day in court yesterday. Says Ezra ...

The quick read is that today went very badly for supporters of the individual mandate. As one of the experienced Supreme Court watchers who runs SCOTUSblog tweeted, “Paul Clement” — the attorney arguing against the health-care law — “gave the best argument I’ve ever heard. No real hard questions from the right. Mandate is in trouble.”

... and Toobin is more blunt in his assessment:

"This was a train wreck for the Obama administration .... This law looks like it's going to be struck down. I'm telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong... if I had to bet today I would bet that this court is going to strike down the individual mandate."

So it looks like the only question left is whether the scope of the opinion will be narrowly tailored to nix the individual mandate, or if the majority in the court will strike for bigger gold in limiting the commerce clause.

The Washington Post interviews Randy Barnett of Georgetown Law and captures his take on the issue at hand ...

... the duty to pay taxes is part of your duty to support the government in return for the protections the government gives you. What the government is claiming here is this power — and this ought to disturb people on the left — to make people do business with private companies when Congress thinks it’s convenient.

That's a fair encapsulation of why I've consistently found the individual mandate troubling. The argument that we're all engaged in the health care market, hence we should pay for it by some means, is problematic on logical grounds. First, the only reason it's offered is because of a Hippocratic Oath that doesn't exactly bind any doctor to see any patient on any grounds whatsoever. At least not in any legally codified manner that I'm familiar with. Secondly, the assumption is that the entirety of the uninsured do not manage to cover the health care costs that they end up incurring. I'm sure that the net effect is a loss of dollars, but I've not seen anything that outlines the scope of the problem (ie - what percentage of uninsured contribute to the problem). I'm uninsured since I don't know when (minus some time during 2010). I have incurred zero health care expenses in the past decade. The last time I did, I paid my bill in full. So why do I need to be forced into the insurance market against my will to fix a problem that I don't contribute to?

In sum, the so-called "health care reform" bill signed into law is, in effect, nothing more than a health insurance reform in this regard. And that brings me to the final problem I have with the mandate: why are we sanctifying the insurance market? Is that really the highlight of liberal thought, these days? ... forcing people to deal with the insurance industry? That seems a far cry even from Al Gore's trope of "the people vs the powerful."


Obamacare Meets the Court

Today's the day. The Supreme Court begins four days of hearings on four aspects of the administration's health care reform. There's no such thing as instant gratification when it comes to these things, though. We won't have an opinion until the summer in all likelihood. And the courtroom is officially a twitter-free zone. A lot is already known about how both sides are going to make their arguments. But the spectacle this week is to see what can be determined about individual justices' questions, doubts, and leanings in the questions they raise. Audio of the hearings will be released by the end of each day of arguments. Fun times.

Here's a small sample of the overviews:

» Wonkbook: Absolutely everything you need to know about health-reform Supreme Court debut
» Kaiser Health News: The Health Law And The Supreme Court: A Primer For The Upcoming Oral Arguments
» Kaiser Health News: Scorecard: What The Health Law Has Delivered, Or Not

That ought to get you up to speed on the outline of the court's case and some objective merits of Obamacare's success or lack thereof to date. Not that the latter matters to the court ... but since most of us aren't forming our opinions of the law in constitutional terms, I happen to think its worth a review at this point. Make of it what you will.

If its a little bit of the pre-game tic-toc you want ...

» NY Times: In Health Care Case, Lawyers Train for 3-Day Marathon
» Wash. Post: Supreme Court to hear arguments on timing of health-care ruling

And there happens to be ample coverage of the lawyers who will be making the most noise this week ...

» NY Mag: The Paul Clement Court
» NY Times: A Lawyer Who Can Simplify the Complex Draws a Big One: Obama’s Health Overhaul

Jonathan Cohn has pretty much been building up to this point and here's a single instance of where he's opining these days ...

» New Republic: If Medicare Is OK, Obamacare Should Be Too

As for me, I've had my marker on the table for quite some time. I think the court strikes down the individual mandate ... even if it means a supposed "fractuous" 5-4 ruling. Roberts, et al can certainly make a logical argument that strikes a few chords of constitutional law. But for all intents and purposes, it will be another political ruling from this court.

Now, what that means for the rest of the law or the fate of health care reform as passed, still remains to be seen. Given that the grand bargain of health reform seemed contingent upon there being an individual mandate, I don't see how it survives without. Whether it could be salvaged with something like Paul Starr's recommendation for an individual mandate, we'll see how much room there is for that during the summer.

ADD-ON: Some more good reading from the twitter chatter that does exist ...

» The Atlantic: How Obamacare Will Be Settled: A Primer on the Commerce Clause
» ACA Litigation: Some things to look for tomorrow

CONCLUSION: Day one looks like the easiest of them all. Up for discussion today was whether the justices could or could not rule on a law that hasn't fully taken effect yet. And it seems that much of what took place was that the justices browbeat the very attorney they hired to argue that they shouldn't. Yeah. You read that right. Government for ya ...

In the first day of hearings at the Supreme Court over President Barack Obama's signature health care law, justices seemed skeptical Monday about arguments that they have no authority to decide the key issues now. Eight of the nine justices put challenging questions to Robert Long, the lawyer who argued for postponing a decision on the case.

That's from Politico's email after today's hearing. It's all downhill from here.


Perry v Perez

» SCOTUS: Perry v Perez
» Michael Li: SCOTUS rules; sends case back to San Antonio court for further proceedings
» SCOTUSBlog: Court rejects Texas maps, delays W.Va. map

The San Antonio map goes into the trash bin. But the Supreme Court turns it back to them to redraw. From my decidedly non-lawyer perspective, the biggest things I see are that the San Antonio judges now have to take into account more of the legislative intent on the map that they draw. As much as I'll delve into the law, it appears as if SCOTUS opted to treat their Upham ruling more in line with the way the state wanted it to be viewed than the plaintiffs. That issue turns on the treatment of considering non-precleared maps in the process of drawing interim plans. That results from the Dept. of Justice telling anyone and everyone in pre-clearance limbo that interim maps could not consider non-precleared maps as they drew interim maps. It was a nearly impossible standard as communities of interest typically have some similar shapes and contours that define a fair amount of any plan. All things considered, I'm not convinced that's a whole lot of bad. At least not yet.

The timing of knowing what the interim districts is, of course, totally screwy right now. My hunch is that we could see something late next week. But if, as Michael Li points out, the DC preclearance trial wraps up on Feb. 3, I can see the San Antonio judges being a bit more cautious this time around and waiting until the DC folks are done. I think they have enough direction (or at least, CYA) from the Supreme Court to deal with the Section 5 side of things. But since the different trials was an issue before, I wouldn't be surprised if San Antonio takes at least two more weeks to sort things out.

As far as districts, I'm not overly concerned on that for races where our shop is working or contests where I'm rooting for candidates. The San Antonio districts (20, 23, and 34) might get unsettled, but I think the only real question is whether they try to re-attach a Doggett/East Austin wing to CD34. CD33 in Tarrant, I'm wondering if that one goes away. That district alone would be a good excuse for the San Antonio court to wait on DC for. We're working with Team Lampson here at the day job and I'm not sure that I expect to see any change that impacts us - the state's plan and the court's plan had negligible difference between the two.

House races may just be a bit more dicey. Even though it sounds like southwest Houston has better-than-decent odds of having a HD137 and HD149 as it does today, the fact that it's smaller real estate can mean that folks can find themselves out of a district even if the nature of a district they were filed for is still good for them to run in. I'd hate to think that a few move-in candidates in HD137 will have to break a lease next month. It's a competitive district as drawn by the court and it was a point of contention for the court to address. So even minor tweaks can change the performance in that district greatly. HD144, I'm a little more comfortable thinking that one remains a Hispanic opportunity district. Whether we see 24 or 25 seats in Harris County could be an issue since the lege's intent was for it to be 24. That could be bad news for HD144's Legler and the four-pack of GOP candidates running in what they hope to be an open HD136. Fort Bend's HD26 is more of a concern to watch for if it moves closer to the Charlie Howard water faucet than a district that maintains the core of Fort Bend's Asian community of interest.

Stay tuned. And stay on Michael Li's blog if you're following redistricting even halfway as closely as I am.


Almost Famous

Apparently, I'm now vaguely alluded to in testimony for a federal trial. That's certainly better than being named outright. This is taken from my State Representative, Scott Hochberg, testifying about the redistricting process in Austin this year (from DOJ's pre-filed testimony here) ...

Q: Did waiver of the five-day posting rule affect you in any way?

A: Things moved quickly, as I've said. I hadn't even picked up the fact that they split down the middle a minority apartment complex until we were on the floor and one of my constituents made me aware of it. A single apartment complex. I had no time to do a detailed analysis while the issue was still pending before us.

The split in question is seen here.

There's more good testimony reading in all of the links provided by Michael Li. I definitely recommend a full reading of Hochberg's testimony if you're pressed for time and/or interest level in the arcana of redistricting law.

Along those lines ... no word from the Supreme Court so far. Not sure if that's good or bad in terms of possible outcomes. But it's definitely irritating for those of us trying to get campaigns underway.


SCOTUS Takes on Texas Redistricting

First things first ... the standard disclaimer to begin all blog posts involving Texas redistricting legal issues: read Michael Li for the latest. The links on this post are also worth following for yesterday's SCOTUS hearing.

In reviewing the transcript of the proceedings and the news accounts afterward, it seems as if we know about as much now as we did before. The questioning by Alito, Roberts, and Kennedy are probably the most worthwhile reading.

If I had to throw a nickel down and bet on something that would be reflected in the outcome, I might suggest the following:

- The legislature's plan will not be enacted as-is.

- I would expect to see SCOTUS rule that even though the above is an un-precleared plan, it can and should be taken into account when drawing an interim map.

- My sense is that the worst-case scenario of invalidating Section 5 of the VRA is not going to happen. The above may be a point of clarification for it, but I see it more as a knock on DOJ's suggestion that the lege's plan cannot be considered.

Now, what that means for any ultimate map remains to be seen. I can certainly see a number of districts where the San Antonio court did stay true to the lege's version on a number of districts. That's obviously not enough to please the GOP types trying to block it. But the bigger issue is that they spelled out their rationale in accordance with NOT being allowed to do that very thing. So I'm not sure they can realistically come back with something that says "No, we really did stick with the lege's idea" unless they draw something new.

And if there's a need to draw something new, that pushes on the timeline for primaries and filing deadlines. That's where it gets fun for those who could care less about the particular cartography. At present, we've got April primaries with June runoffs. That accommodates the local May elections. So if there's anything that pushes primaries back, some possible scenarios that I see are as follows:

- Stay clear of the May elections ... This means a June primary with a July runoff. I'm not sure what the read on the Republican Party of Texas leaving Rick Perry out of an early primary win is, so maybe this increases the odds of a Presidential primary still being in April. This, of course, wrecks the state party conventions.

- To heck with the cities ... Primaries and city elections in May. This will necessitate two polling places in a number of instances. And a lot of confusion. The locals won't like this. But I'm not sure of what the largest cities holding elections that might raise an objections. I know Sugar Land will have mayoral and At Large elections. But a lot of the larger cities have odd-year elections.

- To heck with the budget ... There are, of course, other weeks to do elections around the cities. And maybe instead of a "first Tuesday" plan, they pull the trigger on a "third Tuesday" or some such date. That still may lead to a bit of chaos ... say, a primary election two weeks prior to a city election. It's obviously an ugly scenario. But is it really that much more ugly than either of the above options?

- Why do we need primaries again? ... We wouldn't be the first state to leave it up to party conventions to pick a candidate, I suppose. I'm assuming that there's state law getting in the way of this far-fetched scenario. But just to complete the mix of possible outcomes, it's something to put on the back of the idea shelf.

There's really not a great solution among these. But one of them seems likely to happen.

Of the political districts that strike me as likeliest for editing are CD25 (Doggett) and CD33 (open). If CD25 gets tweaked, that may have implications on CD34, CD20, and CD23. Which means that the now-tidy situation with Ciro Rodriguez, Joaquin Castro, Pete Gallego and Lloyd Doggett may get muddied up once again. As far as the State House map, I think it's less clear. A lot of the "fixes" that people like me were wondering about are the HD137/HD149 situation in Harris County and whether Tarrant County's HD93 remains a compact district that favors Dems or a gerrymandered oddity that favors the GOP.

If there are any grand ideas in the heads of the SCOTUS justices about Section 5 or other issues, we'll see when we get an opinion. There remains a bit of hope that the ruling that comes out will deal with a more limited set of issues in this case. I think the optimal scenario would be an opinion that says the lege's plan can be considered in some regards (hopefully without going so far as to grant "deference"). But my view of the Robert's Court isn't exactly one brimming with optimism. At the end of it all, this is still the most partisan Supreme Court we've seen. So set expectations accordingly.


Individual Mandate: The Vinson Round

I haven't thought to make any mention of the latest GOP judge to rule against health care reform. Primarily, that's because it was totally expected and it doesn't really alter anything that's already in motion for sending the issue to the Supreme Court. But since two other bloggers have an interesting take in the aftermath of Judge Vinson's ruling, who am I to leave the issue alone?

Steve Benen (Washington Monthly):

Yes, there may be folks who don't want to buy insurance, who would be penalized under the law. But under our system, those folks still get sick, still go to the hospital with medical emergencies, and -- here's the kicker -- still get care.

I don't think it requires one to disagree with this point if you merely realize that not everyone who gets the care Benen makes an example of isn't freeloading on the system. In several cases, the visits that people make to get care in these situations is not of the $10-20,000 hospital stay variety. I would suspect that the majority of these instances would not be in the far more affordable range. As to what the percentages are, I'm not sure. But I think that would be pretty vital information if you're going to lean heavily on arguing that because X-number of dollars are made into societal costs due to this situation, do the percentages of uninsured people not paying their way really necessitate a truly socialized cost on all uninsured people? Obviously, I've never been convinced of that point.

Damon Root (Reason):

Justice Anthony Kennedy often does cast the crucial fifth vote, sometimes siding with the Court’s liberal bloc, other times with the conservatives. And the legal challenge to ObamaCare certainly won’t be over until the Supreme Court weighs in. But the Kennedy-as-decider scenario also assumes that all four conservatives will vote against the individual mandate. Can we be so sure about that?

Yes, you pretty much can be sure of that. Root makes a good, solid effort to get at the underlying philosophical views of Scalia and Roberts from their writings (or worse - their Senate testimony!). But I still maintain that the only thing you need to know is the figurative letter next to the respective judges' names. Consistency isn't going to be something that the four court conservatives strive for in this instance. It will be a politically-motivated decision and the outcome of that decision is not in doubt. While I might not mind so much to see the individual mandate never come into existence, I think there's a lot more to worry about what follows from the ultimate stripping down of the commerce clause. My fear (and I'd love for this to end up being unfounded) is that the ruling may impact more than just the requirement to purchase health insurance.


More Bad to Come?

If you think Citizens United is the worst that the Roberts Court can do ... or if you think the impending haircut of health care reform is the worst ... it's not. They'll eventually take up the constitutionality of Section 5 of the Voting Rights Act as well.

There. Let that simmer.


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