The Abortion Cases, a synopsis - before we move forward.

The Abortion Cases

Part One: http://ideas-observations--mentalmachinati.blogspot.com/2010/06/abortion-cases-part-one.html. 

Skinner v. Oklahoma, an Oklahoma case authorizing the sterilization of criminals convicted of felonies equivalent to moral turpitude was struck down.  Procreation is a fundamental right.  Griswold v. Connecticut, is the case that legalized birth control. United States v. Vuitch, involved the statutory interpretation of the District of Columbia's abortion statute.  Eisenstadt v. Baird, is a case that raised the issue of privacy and Equal Protection of the law.  The case centered around a lecture given about a vaginal foam contraceptive.  Under the law the speech was illegal.  A single woman picked up a sample of the contraceptive which was also illegal because the law only permitted married couples from employing contraception.

Part Two:  http://ideas-observations--mentalmachinati.blogspot.com/2010/06/abortion-cases-part-two.html. 

Roe v. Wade, is the landmark decision legalizing abortions.  It is a well reasoned and well decided case.  The only weakness in Roe is that the it places the law on a collision course with Medical Science.  Roe grants a woman a qualified right to have an abortion while acknowledging the State Interest in preserving fetal life.  That interest is always secondary to the life and the health of the woman seeking the abortion.  Doe v. Bolton, was the companion case to Roe, and involved a Georgia statute containing procedural requirements the Court said violated the Fourteenth Amendment.

Part Three: http://ideas-observations--mentalmachinati.blogspot.com/2010/06/abortion-cases-part-three.html. 

Planned Parenthood of Central Missouri v. Danforth, raised the issue of fetal viability. Here the Court ruled that if the fetus can be kept alive, even with medical devices, then that option can be enforced by the State over abortion.  Then the Court said that Missouri could not give the spouse veto power over the wife's decision.  The Court ruled that Missouri could require consent but those conditions did not apply in emergency situations where the mother's life hung in the balance.  Likewise the Court rejected the notion of blanket requirements that the parents of minors be notified of the abortion.  The Court struck down the ban on the most common form of abortion amniocentesis.

Bellotti v. Baird, is another parental notification case. The court struck down this blanket notification law.

Part Four: http://ideas-observations--mentalmachinati.blogspot.com/2010/06/abortion-cases-part-four.html.

Maher v. Roe, Beal v. Doe, Poelker v. Doe are companion cases. Maher v. Roe and Poelker v. Doe each deal with statutes that limited the use of public funds in paying for abortions. These two cases each ask the question if Connecticut, in the Maher case, and the city of Saint Louis, Missouri, in the Poelker case, violated the Equal Protection Clause of the Fourteenth Amendment.  Poverty is not a suspect classification for heightened scrutiny, these states did not need to foot the bill.  The fundamental right recognized in Roe v. Wade was distinguished.  States need not show a compelling state interest in refusing to fund abortions, their statutes must be reasonably related to their policy choice of preferring live birth to abortion.

Beal v. Doe focuses on Title XIX of the Social Security Act requirement  that states participating in the Medicaid program fund the cost of nontherapeutic abortions.  The Court disagreed since when Title XIX passed the Congress abortions had not yet been legalized.

Part Five: http://ideas-observations--mentalmachinati.blogspot.com/2010/06/abortion-cases-part-five.html. 

In Harris v. McRae, more challenges were levied at Title XIX based on right to privacy, the Due Process Clause of the Fifth Amendment, or the Religion Clauses of the First Amendment.  This was a challenge to the Hyde Amendment prohibiting the use of federal dollars for abortion. These challenges failed, but barely; the Court reached a 5 to 4 decision.

Part Six: http://ideas-observations--mentalmachinati.blogspot.com/2010/06/abortion-cases-part-six.html.

City of Akron v. Akron Center for Reproductive Health, is another case about the state's elevated interest in the third term of the pregnancy.   The Court reaffirmed the State's interest in health regulation becoming compelling at approximately the end of the first trimester. That compelling state interest in health is only the beginning of the inquiry. The State's regulation may be upheld only if it is reasonably designed to further that state interest. The State is obliged to make reasonable efforts limit the effect of its regulations to the period in the trimester during which its health interest is furthered.

Part Seven: http://ideas-observations--mentalmachinati.blogspot.com/2010/06/abortion-cases-part-seven.html. 

In Planned Parenthood Association v. Ashcroft a sharply divided Court struck down part of a Missouri statute while upholding other sections of the law.  Requiring second trimester abortions to be performed only in hospitals was again held unconstitutional.  Missouri's requirement of a second physician and a pathology report were found to be reasonably related to the purpose of the statute.

A Virginia statute requiring abortions to be performed in hospitals was not held to be unconstitutional in Simopoulos v. Virginia.  The exception here was that Virginia licensed not only Hospitals but outpatient surgical centers as well.

Part Eight: http://ideas-observations--mentalmachinati.blogspot.com/2010/06/abortion-cases-part-eight.html.

Thornburgh v. American College of Obstetricians & Gynecologists, finds another deeply divided Supreme Court delivering a 5 - 4 opinion.  The issue here was informed consent.  The opinion struck down the Pennsylvania law saying Pennsylvania cannot coerce a woman into continuing an unwanted pregnancy.

Part Nine: http://ideas-observations--mentalmachinati.blogspot.com/2010/06/abortion-cases-part-nine.html. 

In Webster v. Reproductive Health Center, the Supreme Court in a fractured decision.  Only Pat II-C, which dealt with public funding was unanimous, the State of Missouri argued the statute only dealt with officials who were responsible for expending funds.  Then the appellees removed their claim making the issue moot.  When there is not controversy it is to find unanimity.

Part II-A dealt with the preamble to the statute which Missouri said was instructive and had no operative effect.  In dissent Associate Justice Blackmun wrote "To the extent that it merely makes "legislative findings without operative effect," as the State argues, it violates the Establishment Clause of the First Amendment."

Chief Justice Rehnquist used Part II-D to assail the strict trimester rule developed in Roe v. Wade.

Part III of the opinion narrowed and restricted Roe v. Wade holding that Missouri has determined that viability is the point at which its interest in potential human life must be safeguarded.  The collision course upon which Roe and medical science has now been noticed by the Court.

In his scathing dissent Blackmun wrote "The plurality opinion is filled with winks, and nods, and knowing glances to those who would do away with Roe explicitly, but turns a stone face to anyone in search of what the plurality conceives as the scope of a woman's right under the Due Process Clause to terminate a pregnancy free from the coercive and brooding influence of the State."

Part Ten: http://ideas-observations--mentalmachinati.blogspot.com/2010/06/abortion-cases-part-ten.html.

Public funding of family planning under Title X was scrutinized in Rust v. Sullivan.  The challenge in this case was a facial challenge.  A facial challenge applies the inconceivable standard.  It is inconceivable that under any circumstance the statute is constitutional.  This is an extremely high threshold.  The other kind of challenge to the constitutionality of a statute is the as applied challenge.  In an as applied attack the person arguing that the statute is unconstitutional need only demonstrate that under a particular set of circumstances the law is invalid, even if it is valid under other circumstances and for other reasons.  The Court seldom sustains a facial challenge to a federal statute.  State statutes tend not to receive the deference accorded Acts of Congress.

In Rust v. Sullivan, the Secretary of the Department of Health and Human Services developed regulations pursuant to authority conveyed by Title X.  There are three parts to the regulations that were being challenged.  First, a Title X project may not provide counseling concerning the use of abortion as a method of family-planning or provide referral for abortion as a method of family planning. Second, the regulations broadly prohibit a Title X project from engaging in activities that "encourage, promote or advocate abortion as a method of family planning. Third, the regulations require that Title X projects be organized so that they are "physically and financially separate" from prohibited abortion activities.

The Court found the language of Title X ambiguous. Rehnquist said it was permissible for separate facilities and record keeping be maintained. The Court's majority also rejected, by tiptoeing through a long line of cases, the argument that the rules advanced here violated the First Amendment.  Finally the Court summarily dismissed any claims predicated on denial of a woman's Due Process Rights under the Fifth Amendment.

Associate Justice Harry Blackmun's called the majority's opinion disingenuous. 

Associate Justice Stevens said: "I am convinced that the 1970 Act did not authorize the Secretary to censor the speech of grant recipients or their employees, I would hold the challenged regulations invalid and reverse the judgment of the Court of Appeals."

Associate Justice Sandra Day O'Connor said: "In this case, we need only tell the Secretary that his regulations are not a reasonable interpretation of the statute; we need not tell Congress that it cannot pass such legislation. If we rule solely on statutory grounds, Congress retains the power to force the constitutional question by legislating more explicitly. It may instead choose to do nothing. That decision should be left to Congress; we should not tell Congress what it cannot do before it has chosen to do it. It is enough in this case to conclude that neither the language nor the history of 1008 compels the Secretary's interpretation, and that the interpretation raises serious First Amendment concerns. On this basis alone, I would reverse the judgment of the Court of Appeals and invalidate the challenged regulations.

Part Eleven:  http://ideas-observations--mentalmachinati.blogspot.com/2010/06/abortion-cases-part-eleven.html.

With Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court again delivered a fractured opinion.  At issue was a facial challenge [inconceivable standard] to five sections of a Pennsylvania statute requiring informed consent, informed consent for a minor, certification of husband notification, defining medical emergency, and imposing reporting requirements.

The District Court held all the provisions unconstitutional and permanently enjoined their enforcement. The Court of Appeals affirmed in part and reversed in part, striking down the husband notification provision but upholding the balance.

Associate Justice Sandra Day O'Connor addressed the tension in Roe between a woman's unfettered right under the Fourteenth Amendment to terminate her pregnancy and the State's interests in protecting potential life.  Her opinion reflected the rule from Webster v. Reproductive Health Center, that the point where the state's elevated interest in protecting fetal life begins with viability.

Associate Justice Nino Scalia, in his dissent, said that he does not believe that our "Liberty" is not protected by the Constitution. "The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the "concept of existence, of meaning, of the universe, and of the mystery of human life." Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected--because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed." 

Part Twelve: http://ideas-observations--mentalmachinati.blogspot.com/2010/06/abortion-cases-part-twelve.html.

Stenberg v. Carhart brought a Nebraska statute criminalizing late tern abortions before the Court.  Associate Justice Breyer began his 5-4 opinion affirming that Roe v. Wade would not be overturned.  Breyer's opinion focused on three established principles.  "First, before 'viability … the woman has a right to choose to terminate her pregnancy.'”  "Second, 'a law designed to further the State’s interest in fetal life which imposes an undue burden on the woman’s decision before fetal viability' is unconstitutional."  "Third, ‘subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.'"

Associate Justice Stevens said that it made no sense for Nebraska to choose one method of abortion over another. For the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational."

Associate Justice O'Connor said "a ban on partial-birth abortion that only proscribed the D&X method of abortion and that included an exception to preserve the life and health of the mother would be constitutional."

Associate Justice Ginsberg said "if a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue."

Associate Justice Scalia, who as we recall cannot find the concept of Liberty in the Constitution, attacked the Court's opinion as "policy-judgment-couched-as-law."

Associate Justices Kennedy's and Thomas' dissents violently clash with the Court's majority opinion in general and Justice O'Connor's opinion in particular. Chief Justice Rehnquist with Scalia, Kennedy, and Thomas would give great deference to Nebraska. They find Justice O'Connor's view that the statute would pass constitutional muster with an appropriate exception for the health of the mother disingenuous.

Part Thirteen: http://ideas-observations--mentalmachinati.blogspot.com/2010/06/abortion-cases-part-thirteen.html.

Gonzales v. Carhart and the companion case of Gonzales v. Planned Parenthood Federation of America  finds the Court tackling the gruesome topic of Partial Birth Abortion, again.

Carhart facial challenged the constitutionality of the Act. Carhart claimed the Act was void for vagueness, or in the alternative, was constitutionally infirm because it placed an undue burden based on a woman's right to abortion based on the Act's overbreadth or lack of health exception.

Associate Justice Kennedy concluded that the Act in this case was not void for vagueness and did not impose an undue burden from any sense of overbreadth. The facial challenge to the Act failed.

It is important to note that the Act applies without regard to whether the fetus is pre or post viable. This point was uncontested by the parties.

To fall within the Act, a doctor must perform an “overt act, other than completion of delivery, that kills the partially delivered living fetus.”

Finally the Court discusses mens rea, "Fourth, the Act contains scienter requirements concerning all the actions involved in the prohibited abortion. To begin with, the physician must have “deliberately and intentionally” delivered the fetus to one of the Act’s anatomical landmarks.

Associate Justice Clarence Thomas continues to claim that there is no right to an abortion under the Constitution.

Associate Justice Ginsburg delivered an attack of the opinion in her dissent.  She said "Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health."  Quoting Seventh Circuit Chief Judge Richard Posner she said "if a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostilities to those rights, the burden is undue."

That took the line of cases to 2007.  Now we see states, like Kansas, doing what the New England Journal of Medicine spoke about, adopting laws that tell the physician to ignore the health of the patient.

See, http://www.nejm.org/doi/full/10.1056/NEJMhle072595.

  

A Preview of the Three Cases Challenging the PATIENT PROTECTION AND AFFORDABLE CARE ACT in the United States Supreme Court Next Week

Getting the Patient Protection and Affordable Care Act before the United States Supreme Court is a behemoth undertaking.  In fact, it took several cases to get the issues to the Court.  Here they are, Department of Health and Human Services v. Florida is docket number 11-398 and pertains to the Anti-Injunction Act (AIA) (but really health care reform); Florida v. Department of Health and Human Services docket number 11-400 (Medicaid); and another part of Department of Health and Human Services v. Florida docket number 11-398 (Minimum Coverage Provision). 

The Anti-Injunction Act, 11-398, gets argued on Monday.  The Minimum Coverage Provision, 11-398, will be heard on Tuesday.  The Medicaid Provisions of the Patient Protection and Affordable Care Act, 11-400, (ACA) will be on the Court's agenda Wednesday

In Department of Health and Human Services v. Florida the question on the Anti-Injunction Act, 26 U.S.C. §7421 (A) is focused on why this challenge to the ACA's mandate to obtain health insurance is not barred by the AIA's prohibition on "suit[s] for the purpose of restraining the assessment or collection of any tax." Which is the position of the State of Florida.  The ACA structured a penalty for failure to comply with the individual coverage mandate and in so doing relied on its Constitutional Authority under the Commerce Clause.  Thus, in part, the Department argues the AIA is inapplicable because the ACA is not imposing a tax.

The Tuesday version of the Department of Health and Human Services v. Florida looks at the Minimum Coverage Provision of the ACA.  The question presented is whether the Minimum Coverage Provision of the ACA  is a valid exercise of Congressional Power under Article I of the Constitution.  The Department will be arguing that the Minimum Coverage Provision is a valid exercise under the Commerce Clause since it relates to interstate commerce and the provision is a necessary component of the ACA's objective to achieve Insurance Reform.

The third aspect of this case asks the question relating to Medicaid. Has the Congress exceeded its enumerated powers and violate basic principles of federalism when it coerces States into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program, or does the limitation on Congress's spending power that this Court recognized in South Dakota v. Dole, 483 U.S. 203 (1987), no longer apply?

The rule in South Dakota v. Dole the Congress established a national drinking age of twenty-one years.   South Dakota permitted persons nineteen years and older to drink containing 3.2% alcohol by weight (which is equivalent to 4% by volume).  The law, Title 23 U.S.C. §158 (1982 ed., Supp. III), directed the Secretary of Transportation to withhold a percentage of otherwise allocable federal highway funds from States "in which the purchase or public possession . . . of any alcoholic beverage by a person who is less than twenty-one years of age is lawful."  So South Dakota was losing highway funds and they sued the Secretary of Transportation, Elizabeth Dole.

This relates to Medicaid funds in the case before the Court next week.  In South Dakota v. Dole the Court said "[i]ncident to the spending power, Congress may attach conditions on the receipt of federal funds. However, exercise of the power is subject to certain restrictions, including that it must be in pursuit of "the general welfare.""  Chief Justice Rehnquist delivered the opinion in the case and went on to say "[s]ection 158 also is consistent with the spending power restrictions that, if Congress desires to condition the States' receipt of federal funds, it must do so unambiguously, enabling the States to exercise their choice knowingly, cognizant of the consequences of their participation.

Next week is going to be historic at the Supreme Court next week.  If you want to listen to the oral arguments in the case, they will be posted following argument on March 26^th, 27^th, and 28 ^th at www.supremecourt.gov.  That link is currently at the bottom of the page.  If you want to read the orders, briefs, and other information about this case go to http://www.supremecourt.gov/docket/PPAACA.aspx.

Kansas is Redistricting

If you have been having a difficult time trying to follow Kansas' efforts at redistricting you are not alone.  The Kansas Legislative Research Department is trying to clarify the process for you.  Their site, http://redistricting.ks.gov/, takes you to maps showing you the current districts.  That's good for a starting point.  When we get into discussions about this city being placed in a district with that city, it is good to see how things are now.  To see the current districts click on the button called "plans" which takes you to the plans page.  Select current plans and you'll see the current map.

If you want to see the proposed plans you can click on that button as well.  There are eight proposed plans.  Click on the plans and go page by page through the PDF to get not only the big picture but also detail on counties where the boundary lines are shifting. For instance the map M5  _ ELLA JEAN for KLRD TR, by Holton Republican Representative Trent Ladoux takes Linn County away from the Second Congressional District and puts it in the First Congressional District.  Emporia's Republican Representative Peggy Mast wants Louisburg and Bucyrus to be carved out of the Second Congressional District and placed in the Third Congressional District with Johnson County and Wyandotte County in what she is calling the M5 _ Capitol 1 map.

Thus far it looks like the Eisenhower B plan which put Kansas City, Kansas and Dodge City, Kansas in the same district has been withdrawn.  The Kansas House appears to have said no to the Capitol 1 map earlier this week.

There is another button on the plans page and it is for draft plans.  These are plans that have not made it through the review process and there are twenty-six draft plans for Congressional Districts.

If redistricting is not completed by May 10th the filing deadline for U.S. House, Kansas House and Senate, and State Board of Education will be June 10th.  If the redistricting is completed before May 10th the deadline for those offices is June 6th.  All pertinent election calendar dates are on the Kansas Secretary of State website at http://www.kssos.org/elections/12elec/2012ElectionCalendar.pdf.

Kansas Presidential Elections, a brief look backwards.

2012 could end up looking a lot like 1964 where the Republican nominee was perceived as being too extreme to govern from the center.  If the Republicans split and form a third party, say they hijack America Elects, then this year could be like 1948 or 1992.  Below is a little history on Presidential elections in Kansas.

Kansas Presidential Election Summary

1864 marked the first time candidates from the Republican and Democratic Parties went head to head in the race for the White House.  Prior to 1864 it was not uncommon to see several candidates from the same political party vying for the nation's top job.  In 1836, for example, three Whigs competed against Vice President Martin Van Buren, the Democratic candidate.

Zachary Taylor was elected President from the Whig ticket in 1848.  His running mate, Vice President Millard Fillmore, was the last Whig to make a national run for office.  In 1856 he came in third behind the James Buchanan, the Democratic candidate and John Freemont, the Republican nominee who placed second.

Kansans first participation in Presidential elections also came in 1864.  This was the election in the midst of the Civil War.  Kansas went for Lincoln, as did every state in the Union save Kentucky, Delaware, and New Jersey.  Missouri voted for Lincoln over the Democratic candidate George McClellan.  In 1860, Lincoln came in fourth in Missouri behind Democratic candidate Stephen Douglas who garnered 35.52% of the vote.  Coming in second was John Bell of the Constitutional Union Party with 35.26% of the vote.  Missouri's third choice that year was John Breckenridge of the Southern Democratic party.  He earned 18.94% of the Show Me vote.  Lincoln's last place finish saw him gather only 10.28% of the Missouri vote.

By 1868 the Civil War was over and President Lincoln was dead.  General Ulysses S. Grant ran for the Republican Party and former New York Governor Horatio Seymour was the Democratic nominee.  Seymour was nominated on the fourth ballot despite have told the convention that he did not want to be the nominee.  Grant got 68.82% of the Kansas vote, 52.66% of the popular vote nationwide, and 72.8% of the Electoral College vote.

Kansas' 1872 results mirrored the 1868 returns.  President Grant took the state with 66.46% of the vote.  The Democratic nominee, Horace Greeley, earned 32.80% of the vote. Greeley ran in Kansas as a Liberal Republican.  Write in votes took 0.58% of the vote while Charles O'Connor, running as a Straight Democrat, came in last with 0.16% of the vote.

1876 was the year when the candidate winning the popular vote lost the White House by losing the electoral college.  Republican Rutherford B. Hayes won 63.10% of the Kansas vote.  Coming in second was the Democratic candidate Samuel Tilden with 30.53% of the vote.  The Greenback candidate, Peter Cooper, received 1% of the Kansas vote. 

Republicans continued their lock on Kansas in 1880 seeing James Garfield take 60.40% of the vote.  The Democratic candidate, Winfield Hancock, took 29.72% of the state's votes.  The Greenback party did much better in 1880 in Kansas getting 9.86% of the vote.

In 1884 the Democratic candidate, Grover Cleveland, won the nation while losing Kansas.  Cleveland came in second with 33.90% of the vote behind Republican James Blaine who took 58.08% of the vote.  Benjamin Butler took 6.15% of the Kansas vote running as a Greenback.

Republicans took back the White House in 1888, the Greenbacks are gone, the Union Labor Party shows up, and the Democratic nominee, Grover Cleveland, came in second in Kansas with 31.03% of the vote.  Benjamin Harrison, the Republican, received 55.23% of the Kansas vote and coming in third was Alson Streeter with 11.41% of the vote.

In 1892 the Democratic Party won the White House, the Union Labor Party faded into history, and the Populist Party won the vote in Kansas.  James Weaver, running on the People's and Democratic Party,  got 50.20% of the vote.  Coming in second was Republican Benjamin Harrison with 48.40% of the vote.  Third place in Kansas went to John Bidwell running on the Prohibition ticket and getting 1.40% of the vote.

Kansas voted Democratic in 1896, the Republicans kept the White House, and three other parties entered the fracas.   William Jennings Bryan, the Democratic nominee, received 51.32% of the Kansas vote.  Coming in a close second was the Republican, William McKinley, with 47.63% of the vote.  Joshua Levering of the Prohibition Party took third with .51% of the vote.  Coming in fourth was John Palmer of the National Democratic Party with .36% of the vote.  Finally, fifth place went to Charles Bentley of the National Party with 0.19% of the votes cast.

William McKinley repeats as President in 1900, wins Kansas, and some familiar names begin showing up.  Kansas went for McKinley over the Democratic candidate Bryan by a margin of 52.56% to 45.96%.  John Woolley of the Prohibition Party took 1.02% of the vote while the Socialist candidate, Eugene V. Debs, garnered fourth place with 0.45% of all ballots cast.  Not on the ticket in Kansas was Joseph Maloney of the Socialist Labor party.  Teddy Roosevelt and Adlai Stevenson were the Vice Presidential candidates of their respective parties.

In 1904 Theodore Roosevelt keeps the Republican lock on Kansas and wins the White House defeating the Democratic nominee Alton Parker.  The Kansas vote split 64.81% to 26.23% in favor of Teddy Roosevelt.  Eugene V. Debs, the Socialist, 4.83% of the vote, coming in ahead of the Prohibition candidate, Silas Swallow, who had 2.22% of the vote, and Thomas Watson of the People's Party, who earned 1.90% of the Kansas vote.

Kansas went Republican again in 1908 voting for William Taft over William Jennings Bryan by a margin of 52.46% to 42.88% of the vote.  Eugene V. Debs on the Socialist Party ticket took 3.30% of the Kansas vote besting Eugene Chafin of the Prohibition Party, 1.34%, and Thomas Hisgen, of the Independent Party who ended up with 0.02% of the vote.

Democratic candidate Woodrow Wilson won a Kansas squeaker in 1912 besting Teddy Roosevelt 39.30% to 32.88%, a difference of 23,453 votes out of a total of 365,560 ballots cast.  This was the year that Roosevelt ran as an Independent.  President Taft, the Republican came in third with 20.47% of the vote.  Socialist Eugene V. Debs received 7.33% of the vote, while write in votes accounted for 0.02% of all votes.

In 1916 President Wilson retained the White House and won Kansas.  Wilson's 49.95% of the vote handed Republican Charles Evans Hughes the Kansas loss.  Hughes, who won 44.09% of the Kansas vote, went on to be a Chief Justice of the United States Supreme Court.  A new Socialist, Allan Benson, received 3.92% of the Kansas vote while James Hanley of the Prohibition Party came in last with 2.05% of votes cast.

The 1920 election roared in with Warren G. Harding winning the White House and Kansas.  Harding's taking of 64.75% of the ballots made him the clear Kansas winner.   The Democratic nominee, James Cox, received 32.52% of the vote and Eugene V. Debs, again the standard bearer for the Socialist Party came in third with 2.72% of the vote.  There were 75 write in votes accounting for 0.01% of the vote.

Calvin Coolidge won Kansas, the White House, almost everything except Dixie and Wisconsin in 1924.  Coolidge swamped the Democratic candidate, John Davis, 61.54% to 23.60%.  Robert LaFollette ran nationally as a Progressive and was on the ballot in Kansas as an Independent.  LaFollette garnered 14.86% of the Kansas vote.  Three write in votes accounted for 0.00% of the vote.

The 1928 election was a nationwide landslide victory for Republicans and Herbert Hoover who won Kansas. In Kansas Hoover trounced Alfred Smith of the Democratic Party 72.02% to 27.06%.  Norman Thomas, of the Socialist Party, took 0.87% of the vote while Independent William Foster came in last with 0.04% of the vote.

After the Wall Street Crash and the onset of the Great Depression the 1932 election saw a Democratic landslide victory.  Franklin D. Roosevelt won the race and Kansas voted for him 53.56% to Hoover's 44.13%.  Socialist Norman Thomas came in last with 2.31% of the vote.

F.D.R. maintained his winning ways in Kansas and across the nation in 1936.  Landon only won Maine and Vermont in '36. Roosevelt won Kansas besting favorite son Alfred Landon 53.67% to 45.95%. %.  Socialist Norman Thomas came in third.  William Lemke running nationally for the short lived Union Party was not on the ballot in Kansas but did receive 497 write in votes for 0.06% of the total.

In 1940 Franklin Roosevelt won the White House but lost Kansas.  Republican Wendell Willke topped F.D.R. in the Kansas vote 56.86% to 42.40%.  Roger Babson of the Prohibition Party was third with 0.47% and Norman Thomas, the Socialist Party nominee, came in last with 0.27% or 2,347 votes.

Kansas bucked the national trend again in 1944 giving Thomas Dewey a 60.25% win in the Sunflower State.  F.D.R. held onto the White House despite only getting the support of only 39.18% of the Kansas vote.  The Prohibition Party's candidate, Claude Watson took 0.36% of the vote.   Norman Thomas, the Socialist Party nominee, came in last with 0.22%.

Kansas went Republican in 1948, America elected Harry S. Truman, J. Strom Thurmond and the Dixiecrats split and formed the States Rights Party, and it wasn't close in Kansas.  The ticket of Thomas Dewey and Earl Warren got all 8 Kansas electoral votes in '48 beating Harry Truman and Alben Barkley 53.63% to 44.61%.  Henry Wallace, running as a Progressive nationally was on the Kansas ballot as an Independent.  He got 2.37% of the Kansas vote.  Socialist Norman Thomas came in last with 0.29% of the vote.  Thurmond's States Rights Party was only on the ballots of the former States of the Confederacy.  Earl Warren went on to become an excellent Chief Justice of the Supreme Court.

World War II was over and America liked Ike, Kansas' favorite son.  Ike swept most of the nation, except for a few Southern States.  In Kansas it was Eisenhower over Adlai Stevenson 68.77% to 30.50%.  Stuart Hamblen took 0.67% of the vote for the Prohibition Party and Darlington Hoopes got 530 votes for 0.06% of the vote.

1956 was a repeat win for Republican Dwight David Eisenhower who trounced Adlai Stevenson, the Democratic nominee,  65.44% to 34.21%.  Enoch Holtwick of the Prohibition Party emerged with 0.35% of the total vote.

1960 brought America the first televised Presidential Debate between Vice President Richard Nixon and Senator John Kennedy.  Nationwide the race was close in the popular vote (49.72% for Kennedy to 49.55% for Nixon) and the electoral college (303 for Kennedy to 219 for Nixon, there were 15 unpledged electors).  In Kansas Kennedy only won two counties, Ellis and Wyandotte.  Kansas handed Dick Nixon a 60.45% to 39.10% win.  Rutherford Decker received 0.45% of the vote for the Prohibition Party.

 John Kennedy was assassinated, Vice President Lyndon Baines Johnson had succeeded Kennedy, Arizona's Senator Barry Goldwater had the Republican nomination.  L.B.J. had a huge victory, won election, and won Kansas 54.09% to Goldwater's 45.06%.  E. Harold Munn came in third in Kansas with 0.63% for the Prohibition Party.  Eric Hass ended up last with 0.22% of votes cast.

Wyandotte County, Kansas alone went for Hubert H. Humphrey in 1968.  Kansas handed former Vice President Richard M. Nixon a 54.84% to 34.72% statewide victory.  Nationally former Alabama Governor George Wallace, known as  the 20th Century's most influential loser, ran on the American Independent ticket.  In Kansas he was on the ballot as Conservative and garnered 10.19% of the Kansas vote.  E. Harold Munn and the Prohibition Party ended last with 0.25% of the vote.

In 1972 Republicans and Richard Nixon had a landslide victory winning all but the District of Columbia and Massachusetts. Nixon beat South Dakota's Democratic Senator George McGovern 67.66% to 29.50% in Kansas.  John Schmitz earned 2.38% of the vote for the Conservative Party.  E. Harold Munn and the Prohibition Party ended last with 0.46% of the vote.

1976.  After the Watergate scandal President Nixon resigned as President.  He was succeeded by Vice President Gerald Ford.  President Ford pardoned President Nixon, had a propensity for falling down, and in the debate with Carter said that Poland was not behind the Iron Curtain.  Still, it was close and Carter beat Ford while losing Kansas.  Ford and his running mate, favorite son Robert F. Dole, earned 52.49% of the vote to Carter's 44.94%.  Wisconsin's anti war Eugene McCarthy, whose 1968 New Hampshire primary victory led to L.B.J. withdrawing from the race, ran as an Independent and got 1.38% of the vote.  Conservative author Thomas Anderson ran on the American Independent Party ticket and got 0.49% of the Kansas vote.  Roger MacBride was the nominee of the Libertarian Party and ran in Kansas as an Independent, getting 0.37% of the vote.

In 1968 it was Ronald Reagan vs. Jimmy Carter, and it was barely a contest.  Carter had been badly wounded in the primary by Massachusetts Democratic Senator Teddy Kennedy.  Reagan dismissed the President in the debates with a series of "well, there you go again," remarks.  Iran had taken the American embassy hostage and the attempted rescue mission was botched.  Kansas, like most of America, handed the White House over to the Gipper.  Reagan took every Kansas county except Wyandotte, the margin was 57.85% to Carter's 33.29%.  Former Republican Congressman John B. Anderson ran as an Independent and got 6.96% of the Kansas vote. The Libertarian ticket was Edward Clark and David Koch.  Yes, that David Koch.  They got 1.48% of the vote in Kansas.

Reagan's 1984 reelection against former Vice President Walter F. Mondale was a landslide victory with only the District of Columbia and Minnesota, giving their Democratic favorite son, going against the tide.  In Kansas Regan beat Mondale  66.27% to 32.60%.  Bob Richards ran on the Conservative ticket getting 0.35% and David Bergland and the Libertarians received 0.33%.  Dennis Serrette ran as an Independent getting 0.25% of the Kansas vote while the Prohibition Party placed last with Earl Dodge and 0.21% of the vote.

In 1988 Reagan's Vice President, George H.W. Bush, defeated former Massachusetts Democratic Governor Mike Dukakis.  Dukakis won Ellis County, Wyandotte County, and Crawford County.  Bush took the balance of the state besting Dukakis 55.79% to 42.56%.  Congressman Ron Paul was the Libertarian Party's nominee and ran in Kansas as an Independent getting 1.26% of the Kansas vote.  Lenora Fulani ran nationally on the New Alliance Party ticket and was an Independent in the Kansas election.  Fulani was the first woman and the first African American to achieve ballot access in all fifty states.  In Kansas she got 0.38% of the vote.

1992 brought America Bill Clinton, the Democrat, who defeated George H.W. Bush's try for a second term.  Bush beat Clinton in Kansas 38.88 to 33.74% with H. Ross Perot coming in third with 26.99%.  Perot ran as an Independent.  Libertarian Andre Marou came in fourth with 0.37%.  Four persons split 179 write in votes for 0.02% of all ballots cast.

In 1996 Bill Clinton won reelection, Bob Dole was on the Republican ticket, and H. Ross Perot stayed in the game.  Kansas went for favorite son Robert F. Dole over Bill Clinton 54.29% to 36.08% with Perot 8.62% of the vote.  Harry Browne ran as a Libertarian getting 0.42% and Howard Phillips running nationally on the U.S. Taxpayers Party, and as an Independent in Kansas, got 0.33% of the vote.  There were 2,681 write in votes accounting for 0.25% of the vote.  The largest share of those went to Natural Law Party candidates John Hagelin, 1,655 votes, followed by Ralph Nader with 914 votes.  Charles Collins, from Florida, ran as an Independent with the endorsement of disgraced ex-Governor Evan Mecham of Arizona.  Mecham's group Constitutionally Unified Republic for Everybody, or C.U.R.E.  Collins came in last with 112 write in votes for 0.01% of the total.

2000 brings Bush v. Gore and the tightest race since the 1896 squeaker between Hayes and Tilden.  Ralph Nader ran on the Green Party, Pat Buchanan ran on the Reform Party, Harry Browne on the Libertarian Party, John Hagelin of the Natural Law Party ran as an Independent in Kansas, and Howard Phillips ran for the Constitution Party.  Bush beat Gore in Kansas 58.04% to 37.24%.  Nader took 3.37%, Buchanan got 0.69%, Browne ended up with 0.42%, Hagelin garnered 0.13%, and last was Phillips with 0.12%.

In 2004 George W. Bush won reelection and carried all but two Kansas counties, Douglas and Wyandotte. Bush beat the Democratic candidate, Massachusetts Senator John Kerry, in Kansas 62.00% to 36.62%.  Ralph Nader got 0.79% for the  Reform Party, Michael Badnarick earned 0.34% of the vote for the Libertarians, and lesser candidates and write in votes accounted for another 0.25% of the vote.

Four years ago it was Republican Senator John McCain against Democratic Senator Barack Obama.  Obama carried the nation but lost Kansas 56.48% to 41.55%.  Obama won only three Kansas counties, Crawford, Douglas, and Wyandotte.  Ralph Nader was an Independent getting 0.85% of the Kansas vote. The Libertarian, Bob Barr, got 0.54% of the statewide vote. Charles O. Baldwin from the Reform Party earned 0.33% of the vote.  Four others split 3,002 votes for 0.25% of the vote.

RECALL BROWNBACK! Violating KOMA also violates his OATH OF OFFICE!

Governor Brownback's brain trust came up with the dull notion that Brownback, not being a "body or agency of the state" can't violate KOMA.  Hopefully  Kansas Democrats serving in the Legislature will knock that slow hanging pitch in the sweet zone right out of the park.

The "Kansas Legislator Briefing Book 2012" page R-1-1, and available online at http://skyways.lib.ks.us/ksleg/KLRD/Publications/2012Briefs/R-1-KansasOpenMeetingsAct.pdf, is the perfect starting point for the inquisitive legislator. 

At the bottom third of the page is a citation to a case called Memorial Hospital Association v. Knutson, 239 Kan. 663, 669 (1986).  This is important because the holding reminds us that the law is to be liberally construed with narrow exceptions.

The Attorney General's office weighed in on KOMA in 2009.  That document is available at http://ag.ks.gov/docs/publications/kansas-open-meetings-act-(koma)-guidelines.PDF.  According to the Attorney General's office " Social gatherings are not necessarily subject to the KOMA; if there is no discussion of the business of the body, one element of a meeting is "missing.".  If you have any questions about KOMA turn to this document, it is a well written, exhaustive, legal memorandum.

Lisa J. Johnson, the Franklin County, Kansas County Administrator / Counselor perfectly detailed the intersection of KOMA and the social gathering.  Her remarks are online at http://www.franklincoks.org/commission/agendas_2008/10_06_2008_studysession2.pdf, where she says "Social gatherings or conferences for items of general discussion are not meetings so long as there is no discussion of the specific business of the County Commission."  She too relies on the previously cited Attorney General's opinion.

Now on to the preposterous nitpicking notion that not being a "state body or agency" the Governor is somehow above KOMA.  Not only is Emperor Brownback's brain trust  conservatively construing KOMA while making wide exceptions for him in the law, they forgot the Constitution of the State of Kansas.

Ladies and Gentlemen, I direct your attention to the Kansas Constitution Article 1 §3.  "The supreme executive power of this state shall be vested in a governor, who shall be responsible for the enforcement of the laws of this state." 

Now we have two questions to ask, the first is what does the term "supreme executive power mean" and the second asks if Governor Brownback in violating KOMA breached his legal duty abdicating his responsibility to enforce KOMA.

Professor Saikrishna Prakash, writing in the University of Illinois Law Review, 2003 U. Ill. L. Rev. 703, online at http://illinoislawreview.org/article/the-essential-meaning-of-executive-power/ succinctly tells us that the phrase executive power as it relates to the head of state, for America the President and for Kansas the Governor, that each "state body or agency" is an extension of the Governor's supreme executive power.

Professor Prakash's The Essential Meaning of Executive Power, says:

Moreover, the executive power also enable the president to control other governmental officers who execute federal law.  Because only the president has the executive power, others who execute the law derive their authority to execute not from the statutes that create their offices but from the president.  This feature of the executive power reveals why the president is properly referred to as the chief executive.  Other officials who execute the law are "executive" officers by virtue of their law execution role and because they are the chief executive's means of executing the law

Our inquiry into supreme executive authority necessarily leads to the definition of the word "governor" and to this I turn to the American Heritage® Dictionary of the English Language, Fourth Edition. The dictionary says:

1.  n. A person who governs, especially:

2.  n. The chief executive of a state in the United States.

3.  n. An official appointed to govern a colony or territory.

4.  n. A member of a governing body.

5.  n. The manager or administrative head of an organization, business, or institution.

The Century Dictionary and Cyclopedia goes on to say:

n. The person invested with the supreme executive power in a state or community; specifically, as a personal title, the chief magistrate of a state or province: as, the governor of Connecticut; the governor of Newfoundland. As a title, abbreviated Gov.

Both references are online at http://www.wordnik.com/words/governor.

A liberal interpretation of KOMA will find that Sam Brownback, by virtue of his Oath of Office, is the head of each and every state agency and board, and those agencies and boards derive their legal authority from the executive power of the Governor.  That the drafters of the legislation did not conceive of any Kansas Governor behaving so arrogantly does not mean the law will not apply to Sam Brownback.  The law, KOMA, will be liberally construed.  The Governor most certainly can be called to task for his secret meetings at Cedar Crest.  Again, don't forget that the Governor, by virtue of his Oath of Office, epitomizes each and every state agency and board.

Beyond KOMA is the Governor's duty to be responsible for the enforcement of the laws of Kansas.  How is possible for the Governor to exculpate himself for the violations of KOMA when it is he who set up the secret meetings of legislators at Cedar Crest.  It takes two to tango, and Senate President Morris informs us that it was Sam Brownback who began advocating KPERS issues.  Now the Governor claims, somewhat unbelievably, that all the legislators in attendance were warned about KOMA.  That's odd, that directly conflicts the statement by Senator Morris.  It is also odd for the Governor to say he warned the legislators about KOMA and then began his advocacy thus enticing his Republican colleagues into violating KOMA. Why is the Governor abdicating his duty to be responsible for the enforcement of KOMA.

By having these secret meetings disguised as social gatherings, by initiating the violations of KOMA through direct advocacy with the majority of the committees of jurisdiction Sam Brownback makes a mockery of his oath.  Brownback is not being responsible for the laws of Kansas.  The grounds for recall require that the official being recalled has violated the law.  Brownback violated the law when he violated KOMA.  Brownback violated the law when he violated his Constitutional Oath of Office.

RECALL BROWNBACK!

RECALL SAM BROWNBACK FROM OFFICE

Kansas Senate President, Republican Steve Morris of Hugoton, is an ethical man who spilled the beans on Governor Brownback violating Kansas's Open Meetings Law.  When Sam did this he crossed the "Misconduct in Office" line making him eligible for recall under Article 43 of the Kansas Statutes.

As reported in the Capital-Journal online edition, @ http://cjonline.com/news/2012-01-30/morris-i-warned-about-koma-violations, Senator Morris attended a "legislative dinner" at the Executive Mansion, Cedar Crest, on January 9th.  Also present were members of the Senate KPERS Select Committee and the House Pensions and Benefits Committee.  During the "dinner" Brownback began advocating, saying the committees had to "do something" about KPERS.  Senator Morris quickly raised the red flag warning, he said "We can't do this."  Morris was right.

In an amazing display of "now you see me, now you don't" the Governor's spokesperson,  Sherriene Jones-Sontag, said:  the dinners are "private" and don’t violate KOMA because they are "social gatherings."

Of course they are "social gatherings" they are the "social gatherings" where Brownback wants to scheme the methodology of his extreme agenda. And that makes them meetings which should be open to the public.  If they were just "social gatherings" the Governor would have said something like, "Oh KPERS, yes, when we get back to work on Monday we can schedule a meeting about getting something done. By the way how is the family." But that wasn't close to the conversation reported by the President of the Kansas Senate.

Sam Brownback has tried to sell a lot of crazy ideas to Kansas since becoming Governor.  But you don't recall him because he wants to tax the poor and help the rich.  You don't recall him because he wants to give wealthy school districts the ability to raise money for their schools and your kids and grandkids don't get squat.  You don't recall him for any of his bad ideas.  It is politics and he is entitled to have all the bad ideas he wants.

Secrecy, the deliberate assault on transparency, and stealth government followed up by cover-up remarks from an official spokesperson?  Now you have conduct "impacting " the Governor's ability to perform the duties of his office.

Come on Democrats.  It is time to recall Sam Brownback.

What does it take to recall Sam Brownback?  You have to read Chapter 25 Article 43 of the Kansas Statutes.  That's K.S.A. 25-4301 et seq. 

Article 43. - RECALL OF ELECTED OFFICIALS

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25-4302. Grounds for recall. (a) Grounds for recall are conviction of a felony, misconduct in office or failure to perform duties prescribed by law. No recall submitted to the voters shall be held void because of the insufficiency of the grounds, application, or petition by which the submission was procured. (b) As used in this section, the term "misconduct in office" means a violation of law by the officer that impacts the officer's ability to perform the official duties of the office.

Article 43. - PUBLIC OFFICERS AND EMPLOYEES

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75-4317. Open meetings declared policy of state; citation of act. (a) In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the policy of this state that meetings for the conduct of governmental affairs and the transaction of governmental business be open to the public. (b) It is declared hereby to be against the public policy of this state for any such meeting to be adjourned to another time or place in order to subvert the policy of open public meetings as pronounced in subsection (a). (c) K.S.A. 75-4317 through 75-4320a shall be known and may be cited as the open meetings act.

 75-4317a. Meeting defined. As used in the open meetings act, "meeting" means any gathering or assembly in person or through the use of a telephone or any other medium for interactive communication by a majority of the membership of a body or agency subject to this act for the purpose of discussing the business or affairs of the body or agency.