Month: November 2023

Star-Ledger Seeks to Assure that There is no Such Thing as a Temporary Tax Increase.

It appears that the Star-Ledger Editorial Board firmly believes in the First of the Ferengi Rules of Acquisition: “Once you have their money, you never give it back.” They are very upset that New Jersey would keep its word that a “temporary” tax increase should be allowed to expire, albeit a few years late. The case in point is the surcharge in the corporate business tax which the Star-Ledger now seeks to extend and dedicate to NJ Transit.1

Apparently, NJ Transit is the budgetary equivalent of the U.S. Postal Service in that it costs more to run than it can generate in charges for its service. (Shockingly, fares only account for 42% of its revenue but, the editorial explains, higher fares will mean fewer riders; a situation with which newspapers have become familiar.)

The editorial justifies the tax increase (I’m sorry, it just extends a prior increase, so it’s not a new one2) by saying it only affects 2% of all businesses in New Jersey or, as Peter Chen remarks, they will only pay “a little” more in taxes. It’s all one big “someone else is paying” argument.

Jay Bohn

November 30, 2023

  1. A few months ago, I posted about Tom Moran’s editorial advocating the extension. It was also mentioned in an October post. ↩︎
  2. This is in effect one of the arguments. The Star-Ledger quotes Democratic candidate for governor Steve Fulop as arguing that the surcharge should be continued “because it’s been normalized within the balance sheets of these companies after having it for four years.” ↩︎

Thanksgiving Money Grab by Newspapers Will Only Contribute to Their Demise

There’s no doubt that print newspapers are in a world of hurt. Years ago they were doing well. Many cities had multiple, competing newspapers. Then consolidation set in, partially fueled by competition from other media (then radio and television, today the internet). The newspapers that remain are facing declining advertising revenues and subscriber bases, so they increase their prices (and/or reduce their publication schedule) leading to more subscriber losses, a continuing cycle. (Anybody else reminded of the United States Postal Service?)

I can only ascribe to desperation that someone thinks it’s a good idea to charge a premium for the Thanksgiving edition of the newspaper. True, Sunday editions are charged at a higher rate, but these typical had more or expanded content sections than weekday papers did. Also, Sunday papers used to have many advertising supplements, that could include enough coupon savings to justify the extra cost. But here’s a newsflash: Sunday advertising has all but disappeared. Advertisers (whose rates have presumably also increased) have decided to spend their advertising dollars elsewhere (or not at all) and rely upon their own websites. Thanksgiving of course used to have quite a few advertising supplements; now the “quite a” has disappeared, leaving just “few.”1 True, there were special content sections, but it looked like much of it was recycled from last Thanksgiving.

Jay Bohn

November 27, 2023

  1. I get two newspapers on Thursdays, one had five, the other three; most of the ads were two to four pages). ↩︎

Is There Such a Thing as Election Fraud After All?

I become concerned when votable ballots leave a polling place as the ballots can then be marked or observed by someone other than the voter. An individual voter’s reason for a particular vote is a personal matter, as long as the vote is not outright sold. This is less likely when the ballots are marked only in an official polling station as the vote buyer cannot be certain that a vote seller has actually voted in accordance with the deal. (The same concerns do not necessarily apply to in-person early voting as there is no need for the ballots to leave the polling place between distribution and collection.

Sometimes the inability of the voter to get to the polls for election day (or any early voting period) makes it necessary to run the risk (which counsels for such mechanisms as inner envelopes and controls over who may “bear” the ballot from the voter to the collections site (or mailbox). I do not oppose absentee voting for those who for a serious reason cannot vote in person.

It is quite another thing to permit “no excuses” absentee voting and, even worse, to make that the default mechanism.

Opinions masquerading as news articles that cover legislative proposals governing absentee voting always repeat, as an article of faith, that there is little to no election fraud and so those seeking ballot security must simply be seeking to deny others the right to vote.

But there is election fraud. Recently a Connecticut judge invalidated the Democratic mayoral primary in Bridgeport, citing, in part “video evidence showing multiple people shoving stacks of ballots into drop boxes.”

In New Jersey the Paterson City council president has been charged with vote-by-mail fraud and the State has alleged that his associates “’stole ballots from residential mailboxes,’ tossing several ‘that did not cast a vote for their candidate’ in the trash.” The charges are just allegations at this point, but you would think those who shout the loudest about protecting the right to vote would want to make sure that it could not happen.

Jay Bohn

November 23, 2023

Colorado Court Rules That Trump “Engaged in Insurrection,” But That The President Is Not an “Officer of the United States,” So Trump Not Disqualified

On Friday Colorado district judge Sarah Wallace issued her decision in the only legal case seeking Trump’s removal from the ballot to come to trial (so far). It was certainly a win for President Trump, in that the court ruled that he is not disqualified, but only because the President is not an “officer” of the United States. Importantly, Judge Wallace found that Trump did “engage” in “insurrection.” It also appears that Judge Wallace agreed with what I have started to think of as my argument that the difference in wording of the presidential oath is significant. (See ¶313 and n. 19 at pp. 100-101.) CNN.com has a good article about the decision here.

While the organization behind the litigation has promised to file an appeal, I don’t see it going anywhere. They may be better taking the significant victory they got, a judicial declaration that the (sadly) likely Republican presidential candidate is an insurrectionist. (While I do not profess to know Colorado appellate procedure, I expect that you cannot appeal from a judgment in your favor, so unless the petitioners file an appeal, Trump may not be able to challenge that finding.)

I do want to comment on Trump’s argument that disqualifying him rather than letting the voters decide is anti-democratic. It certainly is, but no more so than the application of any other qualification for office, like being a natural born citizen at least 35 years of age. And it’s a little bit rich coming from someone who supported the racist-motivated “birther” challenges to the eligibility of Barack Obama.

Jay Bohn

November 20, 2023

Michigan Follows Minnesota In Rejecting Lawsuit to Keep Trump Off Primary Ballot

On Tuesday Judge James Robert Redford of the Michigan Court of Claims denied1 an attempt to exclude former President Donald Trump from Michigan’s Republican primary. As with the decision of the Minnesota Supreme Court about which I recently posted and which he cited (Minnesota’s order that is, not my post), Judge Redford ruled that being qualified for the office sought is not a requirement to be a candidate for a party’s nomination for the office.2

Judge Redford also rested his decision on another basis, that the plaintiff’s claim raises a nonjusticiable political question. Although the full explanation requires a lot more detail that I can provide at the present time,3 this is where I part company with Judge Redford.

Jay Bohn

November 16, 2023

  1. Thanks to Michigan Advance’s story on the decision for a link to the actual opinion. ↩︎
  2. Regardless of one’s feelings on whether that should be the law, absent a constitutional requirement otherwise, it is a position that the legislature of a state is free to take. ↩︎
  3. But see Courts Must (Ultimately) Decide Trump’s 14th Amendment Eligibility for a brief discussion of some thoughts about the question. ↩︎

It is Dangerous to Rely Upon Media Explanations for Legal Issues

“I only know what I read in the newspapers.” That quote, or something like it, is attributed to Will Rogers. Substituting “news media” or “online” for newspapers, it sums up how most of us know what’s going on in the world. You would think, then, that the professional news media would they very hard to be accurate. When it comes to legal basics, at least, they are not succeeding.1

Today’s case in point is Fox News, which yesterday published a story entitled, “Decisions in 14th Amendment cases could impact pending Colorado, Michigan efforts to remove Trump from ballot.” The premise of the article is that the Minnesota Supreme Court’s dismissal of the petition to keep President Trump off the primary ballot and the dismissal of an unrelated action in a federal court in New Hampshire on standing grounds, according to an unnamed “source familiar with the decisions and proceedings,”2 “‘sets precedent,’ which will make it ‘harder and harder to keep Trump off the ballot’ in other states.”

A loss may be a loss, but, if you’re going to talk about precedent, you have to look at the reason for the loss. In Minnesota, as I have previously reported, the court dismissed the petition because there is no Minnesota state law prohibition on the nomination of a candidate who is not eligible for the office. In the New Hampshire case, the federal court ruled that the plaintiff, a very minor Republican candidate for President who has filed 27 pro se lawsuits seeking to keep Trump off the ballot, did not have standing3 to bring the action.4

Neither of these cases got anywhere near the merits of whether section 3 of the Fourteenth Amendment disqualifies Trump from another term. So, unless these precise issues are raised in the Colorado and Michigan cases, these decisions are not even persuasive authority and are simply not precedent.5

Jay Bohn

November 13, 2023

  1. This failure was the subject of a post at the beginning of this year. ↩︎
  2. Unnamed sources usually provide “inside” information to reporters that they (the sources) are not supposed to disclose. Reporters agree not to divulge their identity to protect them from the consequences of the disclosure. Whether the Minnesota and New Hampshire federal decisions constitute “precedent” relates only to information about those proceedings that is publicly available. The unnamed source is therefore just expressing an opinion, and the failure to identify the source does not add to the credibility of the opinion. ↩︎
  3. I have previously written about standing, for example in connection with the student loan cases, and how it makes it difficult to get litigation about Trump’s potential disqualification into federal court. ↩︎
  4. Among other venues, the U.S. District Court for the Southern District of Florida also ruled that Castro did not have standing. Castro’s petition for certiorari before judgment in that case was denied by the U.S. Supreme Court on October 2, 2023. (docket). ↩︎
  5. One of my many issues with media coverage of Trump’s litigation seeking to avoid the reality that he lost the 2020 presidential election was the failure of the media to report why the Trump campaign lost the cases. In many of them it was for the same sort of procedural reasons that the Minnesota and New Hampshire courts ruled against challengers to his 2024 candidacy. ↩︎

Trump Wins First Round in Disqualification Fight

The first court with the merits of the argument that the Fourteenth Amendment disqualifies President Trump from serving again before it punted. This is not the Colorado case where a trial is taking place to determine if the secretary of state must exclude Trump from the primary ballot, but the Minnesota Supreme Court with essentially the same issue. Yesterday afternoon the court dismissed the case. Although the court did not issue a full opinion (one is promised) its order goes into some detail about the reasoning: that as a matter of Minnesota law a political party may nominate a candidate who is not eligible for the office being sought. The dismissal is without prejudice to the claims’ being brought with respect to the general election.

While the decision is at least a temporary win for Trump, it leaves open the possibility that there will be no Republican on the general election ballot in Minnesota.

Kudos to the CNN.com story for including a link to the order.

Jay Bohn

November 9, 2023

Tilting at (or for) Windmills

For a while now Governor Phil Murphy has been pushing for clean energy via wind farms to be built in the Atlantic Ocean. A Danish company, Ørsted, was given fast-track permits and a billion-dollar tax credit.

Opponents of the project had their own environmental arguments premised upon the effect of the development on marine life. (The pro side claimed that there was no evidence of harm, not a position that they would have taken with any other development, which would be required to prove that it was benign.)1

Last week Ørsted announced that it was going to abandon the project. The governor was furious (not least about the timing, a week before the entire Legislature is up for reelection, imperiling his Democratic majorities.)2 The Star-Ledger’s liberal and conservative columnists take different views: compare Tom Moran, “The offshore wind debacle has Republicans cheering job losses,” with Paul Mulshine, “Murphy energy plan is gone with the wind.” (both subscriber exclusives).

Governor Murphy says that Ørsted is in the hook to pay some $300 million and he has promised to “fight like hell” to keep it. Given the Garden State’s track record in negotiating with our neighbor across the Hudson, I wonder what New York’s share will be.

Jay Bohn

November 6, 2023

  1. I suspect, however, that the real reason was the impact of an industrial development within sight of shore. ↩︎
  2. “Developer cancels plans for 2 N.J. offshore wind farms. Outraged Murphy rips company.” See also “N.J.’s major offshore wind plans just imploded. Why it matters, what happens next.“(subscriber exclusives). ↩︎

Courts Must (Ultimately) Decide Trump’s 14th Amendment Eligibility

In Colorado a trial is being conducted this week to determine whether Donald Trump should be excluded from the presidential primary ballot in that state. The petitioner in that case asserts that President Trump is rendered ineligible for that office under section 3 of the Fourteenth Amendment. (I have made a series of posts on this subject, starting here.) Last month MSNBC.com published an opinion piece, “We shouldn’t let courts decide Trump’s 14th Amendment eligibility,” which asserts that our culture has become ” juristocratic.”

I am not entirely certain that I understand its authors’ point,1 but it appears to me that they are arguing that courts have become too powerful and that because Colorado’s secretary of state is also obligated to uphold the Constitution, she should make the decision. I do not know if Colorado law allows for an administrative official to determine if a candidate is qualified for the office that he seeks, but even if it does, judicial review of that decision should be available. The authors want local officials to make the determination after fact-finding hearings, subject to the ability of Congress to override the determination.2

The opinion seeks to consign the decision on this question to a political actor, but it is not a political question and the answer must be uniform nationwide.3

Jay Bohn

November 2, 2023

  1. And I have no idea what this passage means: “The goal should be for the American public to recapture the spirit of the 14th Amendment, which envisions a democratic contest over selecting our officeholders without denying due process to anyone who seeks office.” ↩︎
  2. The Fourteenth Amendment gives Congress the power to remove the disqualification while another section permits Congress to enforce the Amendment by appropriate legislation, but where does Congress get the authority to adjudicate individual cases? ↩︎
  3. It would never work as a political matter, but there would have been value if, instead of relying upon private parties to commence this action, the Attorney General, in behalf of the United States, had sought a federal court ruling on this question. ↩︎