Month: November 2020

All elections are about power—and some shifts in political power are felt for years.

Such was the case 10 years ago, when Republicans rode an electoral tsunami that gave the party its largest share of state legislative seats since the 1920s. That election preceded the once-per-decade redrawing of legislative and congressional districts, and Republicans used their time in the catbird seat to carve out favorable political geography for themselves. Although some of those district maps were eventually overturned by courts and redrawn after yearslong legal battles, Republican gains at the state level in the 2010 election undeniably shaped the country’s political landscape for the past decade.

What the next decade looks like will be decided today.

There are 5,876 state legislative races being conducted on Tuesday—nearly 80 percent of all statehouse seats in the country—and 11 states will elect a governor as well. Beyond the redistricting power, there are significant policy stakes: the National Conference for State Legislature (NCSL), a nonpartisan group that tracks state political action, notes that Congress has passed 163 bills since January 2019 while states have enacted 15,000 new laws.

Democrats have clawed back some of what they lost in 2010, but NCSL data show that Republicans still hold 52 percent of America’s legislative seats and control 59 of the 98 partisan chambers in statehouses. (Nebraska has a unicameral legislature that is technically nonpartisan, but Republicans have an unofficial majority there too.)

A big night for Democrats could see them vault into power in some places where they haven’t had a majority for a long time. In Pennsylvania, the state that seems to be at the center of so much of this election, Democrats need to flip nine House seats and four Senate seats to take control of the legislature ahead of redistricting. Pennsylvania’s Senate hasn’t had a Democratic majority since 1980, making it a good marker for judging the strength of this year’s possible “blue wave.”

That’s the type of historical result Democrats will have to achieve if they want to match the Republican shellacking of 2010, when the GOP swung control of an incredible 21 legislative chambers.

Democrats are eyeing potential swings of power in both chambers in Arizona, where Republicans enter the election with a two-seat majority in the state House and a three-seat edge in the state Senate. Democrats haven’t held either chamber in Arizona in more than 40 years. Republicans are also playing defense in the Michigan state House, where they have a seven-seat advantage, and in the Minnesota state Senate, where they hold a three-seat majority.

A few gubernatorial contests could see power shift as well, though for the most part these races are less competitive this year. Incumbent Gov. Roy Cooper, a Democrat, is likely to face a close contest in North Carolina, and Missouri Gov. Mike Parson, a Republican, could too. Other than that, the only interesting race is Montana’s incumbent-less gubernatorial contest, which seems wide open.

But even if Democrats can match the Republican wave of 2010, their power to redraw districts will be blunted, in part, by Democratic-led efforts to rein-in partisan redistricting during the past decade.

At least 114 congressional seats will be subject to redistricting commissions in 2021, according to the Cook Political Report. Those commissions operate differently in various states and have a mixed record when it comes to thwarting partisan outcomes, but they certainly remove a degree of power from lawmakers’ hands. The number of congressional districts drawn by a commission could rise to 125 if Virginia voters approve a ballot initiative on Tuesday that would create such a commission.

There are another 58 congressional districts in three key states—Florida, North Carolina, and Pennsylvania—where the next set of congressional maps will be subject to newly created standards set by state courts. And there are seven congressional districts that can’t be gerrymandered because they are at-large districts covering the whole state.

That still leaves 245 seats in Congress—a little more than half—for which state legislators will have outsized control. All eyes are understandably on the top-of-the-ticket race between President Donald Trump and former vice president Joe Biden, but the outcome of statehouse races might have more lasting consequences.

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Yesterday, the Supreme Court essentially sent the Mckesson v. Doe First Amendment litigation on a state-law detour down to the Louisiana Supreme Court; here are the facts, as recounted in yesterday’s opinion:

DeRay Mckesson organized a demonstration in Baton Rouge, Louisiana, to protest a shooting by a local police officer. The protesters, allegedly at Mckesson’s direction, occupied the highway in front of the police headquarters. As officers began making arrests to clear the highway, an unknown individual threw a “piece of concrete or a similar rock-like object,” striking respondent Officer Doe in the face. Officer Doe suffered devastating injuries in the line of duty, including loss of teeth and brain trauma.

Doe sued, and the question before the Louisiana Supreme Court will be whether Mckesson could be held liable under the Louisiana tort law of negligence, “on the theory that he negligently staged the protest in a manner that caused the assault.” And of course there have been other incidents in recent years where protesters illegally blocked public streets, often keeping cars from going forward, sometimes surrounding them, and potentially causing accidents.

A couple of days ago, a group of drivers displaying Trump signs apparently surrounded a Biden campaign bus, allegedly slowed it down to 20 mph, and allegedly tried to stop it. There was apparently at least one minor collision between an SUV associated with the Biden campaign and one of the trucks displaying the Trump signs; from what I understand, no-one was injured, but someone certainly could have been.

What can we say about legal liability in such situations?

[1.] Certainly the individuals who themselves break the law (whether they are throwing rocks, driving unsafely, or simply blocking traffic as pedestrians) could be criminally prosecuted, and those who cause injury could be held civilly liable for their own actions.

To the extent that the people (whether surrounding a bus in trucks or surrounding a car on foot) threaten others, or wrongfully block them from leaving, they can be prosecuted or sued for that, too. This is true whether they deliberately surround a vehicle because it’s associated with a political campaign, or surround a vehicle for other reasons; both can be criminal or tortious, though there are sometimes also special criminal statutes that can be used when the targeting stems from the target’s political activity.

[2.] To the extent that a protest organizer is deliberately instigating a crime or a tort (whether the blocking of traffic, the throwing of rocks, or whatever else), the organizer can be prosecuted and sued for conspiring to commit a crime or tort, or for soliciting, ordering, or otherwise directing its commission.

[3.] But can a protest organizer be sued even for harms by protesters that he didn’t intend, on the theory that he negligently caused those harms, and the harms were foreseeable? The theory might be, “It’s foreseeable that when people deliberately block a street, the police will feel obligated to clear it, and then one of the protesters will attack and injure a police officer; your organizing the blocking of the street caused this foreseeably injury; and you acted unreasonably in creating this risk of harm by organizing the illegal blocking of the street.”

Or it might be, “It’s foreseeable that when drivers surround another vehicle as part of a political demonstration, someone is going to drive unsafely (follow too closely, drive too aggressively, or otherwise focus more on their highway theater project than on safe driving), and there may be an auto accident which will cause injury or property damage.”

[A.] It turns out that, as Fifth Circuit Judge James Ho noted in his early concurrence in the denial of en banc rehearing in Mckesson (see also this post of mine discussing the initial Fifth Circuit panel opinion) that the result may be different when a police officer is negligently injured. Under the “professional rescuer doctrine” (earlier called “the fireman’s rule”), which is recognized in most states (including Louisiana),

“[A] professional rescuer, such as a fireman or a policeman, who is injured in the performance of his duties, ‘assumes the risk’ of such an injury and is not entitled to damages”—particularly when the “risks arise from the very emergency that the professional rescuer was hired to remedy.”

So that means that, in Mckesson v. Doe, Doe would lose under this doctrine; likewise if a police officer were injured in an accident when trying to break up a drivers’ demonstration on a freeway. But this wouldn’t dispose of a lawsuit by someone else who was hit by a rock thrown by a protester (e.g., a bystander, a driver, a private security guard), hit by a car driven by a demonstrator, or more broadly someone else who was injured in a foreseeable consequence of the protest.

[B.] Once we set aside the professional rescuer question, there are two related state law questions. One is sometimes loosely called “duty”: Do people have a duty not to organize protests in ways that foreseeably and unreasonably cause physical harm, especially when they deliberately structure the protest that violates some other law (such as laws against blocking traffic)? I think that, as a general matter of negligence law, the answer is yes, because this is just a special case of the general duty not to do things that foreseeably and unreasonably cause physical harm:

An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm ….

Comment. An actor’s conduct creates a risk when the actor’s conduct or course of conduct results in greater risk to another than the other would have faced absent the conduct…. Conduct may … create risk by exposing another to the improper conduct of third parties.

It’s true that the law usually doesn’t impose a duty to protect others from physical harm that you didn’t cause. But it does impose a duty to act reasonably when your actions do create a risk.

There might be good reason to limit this duty in certain situations. (Consider, for instance, the “social host liability” rules, which in most states say that social hosts who affirmatively furnish alcohol to their guests aren’t liable when the guest gets drunk, drives away, and injures someone—a jury won’t even be asked whether the social hosts’ actions were negligent, because the social host doctrine limits the normal duty of reasonable care.) But such limitations on this duty of care.

A related question (sometimes labeled the “proximate cause” question) is: Can someone be held liable for doing things that increase the risk of a criminal act by another person? The general answer is yes, if that act is “foreseeable”:

An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal….

The conduct of a defendant can lack reasonable care insofar as it foreseeably combines with or permits the improper conduct of the plaintiff or a third party….

Illustration. The employees of the A Railroad are on strike. They or their sympathizers have torn up tracks, misplaced switches, and otherwise attempted to wreck trains. A fails to guard its switches, and runs a train, which is derailed by an unguarded switch intentionally thrown by strikers for the purpose of wrecking the train…. C, a traveler upon an adjacent highway, [is] injured by the wreck. A Company may be found to be negligent toward … C.

Again, there are sometimes limitation on this proximate cause theory, but they are exceptions rather than the rule.

[C.] Finally, we get to the First Amendment question, which the Supreme Court avoided for now by sending the case to the Louisiana Supreme Court for a decision on whether state law authorizes such negligence claim in the first place: Does the First Amendment limit negligence liability in such situations? That’s a very interesting and complex question, which I think should turn on whether the negligence theory stems from the content of the speech: A claim that a film distributor is liable for crimes stemming from some viewers being inspired to act violently, for instance, is generally precluded. But a claim that someone was injured as (say) a result of a stampede at a concert, because the concert organizers let in more fans than was safe, would likely be allowed. I discuss this in much more detail in this post.

But in any event, I thought it would be helpful to think about these questions by viewing Mckesson (and other pedestrians-blocking-the-streets cases) and the Texas incident together, and seeing what rules would make sense for both of them.

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In the closing days of a race that’s closer than expected, Sen. John Cornyn (R–Texas) has been accused of using manipulated footage to make his Democratic challenger, MJ Hegar, say that she “support[s] a carbon tax.”

In fossil fuel-rich Texas, of course, support for a tax on carbon is potentially disqualifying. Hegar’s actual position is somewhat unclear: She claims to support a carbon tax but also says she would not want it to hit middle-class families. Still, the last-minute tussle over carbon taxes in the Texas senate race is indicative of a greater problem in our national politics when it comes to fighting climate change: The politics often supersede the policy.

That’s certainly been true in this year’s presidential race.

Democratic nominee and former Vice President Joe Biden’s campaign website calls climate change “the greatest threat facing our country and our world.” He promises to invest $2 trillion dollars into infrastructure, manufacturing, and “environmental justice” to ensure that “communities who have suffered the most from pollution are first to benefit.”

Biden also plans to refit thousands of homes, even though the costs for that are significantly higher than the benefits. He pledges to reduce carbon emissions to zero, which Bjorn Lomborg, a visiting fellow at the Hoover Institution, projects would cost $5 trillion dollars. Overall, Biden’s plan would cost thousands of dollars per taxpayer every year, according to Lomborg.

Meanwhile, incumbent President Donald Trump’s environmental agenda consists primarily of hoping that climate change goes away. His campaign website describes his second-term agenda as promising to “Continue to Lead the World in Access to the Cleanest Drinking Water and Cleanest Air” and to “Partner with Other Nations to Clean Up our Planet’s Oceans”—admirable goals, sure—but does not mention climate change or outline any concrete plan for reducing carbon emissions.

Reducing carbon emissions requires recognizing that the market can do a better job than bureaucrats in Washington—but also that doing nothing isn’t a good option. Failing to act on climate change presents significant economic costs as well. According to the Congressional Research Service, even a small increase in global temperatures could lead to a 2 percent annual loss in gross domestic product, with that number increasing alongside the rate of warming.

A new study from the Niskanen Center, a centrist think tank, offers a middle ground that more politicians should be willing to consider: carbon pricing.

Joseph Majkut, director of climate policy, argues in a recently published report that carbon pricing could be an effective policy for curbing emissions while preserving markets. Under Majkut’s proposal, the federal government would price carbon at $50 per ton, and return that revenue to taxpayers. This would create a market incentive for corporations to implement clean energy plans. It would discourage investment in fossil fuels, and likely encourage firms to start the process of moving toward clean energy sources. But it wouldn’t cost trillions of dollars, nor would it absolutely destroy the American economy. There would be costs, just as with any tax—but not to the degree that Biden’s plan would entail.

It would not, Majkut notes, “entirely fix underinvestment in scientific research” nor “eliminate the cost premium and limited selection facing prospective buyers of electric vehicles.” But, he argues, it is a valuable first step that would still meaningfully contribute to working against climate change.

Corporate decarbonization can only come from regulatory predictability, and “regulatory predictability and market certainty come from a carbon price, not from continually changing command-and-control measures,” Majkut writes. It’s a plan that has support from stakeholders in the fossil fuels industry, including energy companies like ExxonMobil and BP, as well as automakers like General Motors and Ford.

The support by the energy sector for carbon pricing has led to some pushing back against it. According to Bloomberg, the projected $40-50 price for carbon may be too low to actually trigger changes in the marketplace. Bloomberg notes that climate activist groups like the Natural Resources Defense Council argue that carbon pricing would effectively price out coal, but would boost the market for natural gas.

Carbon pricing is a plan that relies on letting market mechanisms sort out the costs of pollution that affect the climate. Unfortunately, implementing it would be tough as it would require our politicians to admit they don’t have all the answers.

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