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State, Mo Brooks sue to block counting of immigrants in 2020 census

Chip Brownlee

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It’s long been feared Alabama might lose a congressional seat when reapportionment happens after the 2020 census, but Alabama Attorney General Steve Marshall and Congressman Mo Brooks said that wouldn’t be a possibility if the U.S. Census Bureau would stop counting people who immigrated illegally to the United States in the census.

The AG’s office — on behalf of the state — and Congressman Mo Brooks, a Republican, filed a lawsuit in federal court this week against the Census Bureau and the U.S. Department of Commerce, alleging that the bureau’s census practices disadvantage Alabama and could lead to the state losing both a congressional seat and a vote in the Electoral College.

The census, conducted every ten years, is used to determine congressional districts, federal funding that is based on population and the number of electors each state gets in the Electoral College, the body that formally elects the president.

The Census Bureau has a longstanding practice of counting all residents of a state, whether they are citizens, immigrants or living illegally in the United States, so long as they choose to respond to the Census.

The State and Brooks say Alabama — and other states like Ohio and Montana — could lose a congressional seat or miss out on a new seat to states with a “larger illegal alien population.”

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“Alabama’s loss will be another state’s gain, as states with a growing illegal alien population will be the beneficiary of this reapportionment,” Marshall said. “I have joined with Congressman Mo Brooks in filing suit against the federal government to stop the inclusion of illegal aliens in the census’s apportionment population. The Constitution does not permit the dilution of our legal residents’ right to equal representation in this manner.”

Alabama and Brooks’ lawsuit will likely face an uphill battle in federal court, where precedent is on the side of counting total population, regardless of voter eligibility or citizenship status. The Supreme Court in 2016 reaffirmed the use of total population — at least for state legislative reapportionment — rejecting an argument from two Texans who said total population shouldn’t be the metric.

“Adopting voter-eligible apportionment as constitutional command would upset a well-functioning approach to districting that all 50 States and countless local jurisdictions have followed for decades, even centuries,” the court wrote in its opinion. “Appellants have shown no reason for the Court to disturb this longstanding use of total population.”

The decision was a unanimous 8-0, and the court fell back on decades of precedent that Though he had some disagreement with the theory behind the court’s opinion, even conservative Justice Clarence Thomas agreed with the judgment.

“I agree with the majority’s ultimate disposition of this case. As far as the original understanding of the Constitution is concerned, a State has wide latitude in selecting its population base for apportionment,” Thomas wrote. “It can use total population, eligible voters, or any other nondiscriminatory voter base.”

The Census Bureau’s “Residence Rule” allows foreign nationals living in the U.S. to be counted in the census and allocated to the states based on their “usual residence.” Brooks and the State argue in the lawsuit that the practice violates the 14th Amendment and its Equal Protection Clause.

“This lawsuit will have significant and enduring effects on Alabama and other states harmed by unconstitutional census methods,” Brooks said. “Fundamentally, the issue is fair and equal representation for United States citizens. While some stand for illegal aliens, I stand for American citizens.”

The Constitution calls for an “actual enumeration” of the “number of persons in each State.” But the lawsuit argues for a different interpretation of the term “person.”

“The phrase ‘persons in each State’ was understood at both the Founding and in the Reconstruction era to be restricted to aliens who have been lawfully admitted to the body politic constituted by the Constitution,” Alabama’s lawsuit reads. “Aliens who are unlawfully present in the United States did not qualify because they are not entitled to political representation. Thus, the actual enumeration of the population cannot include such aliens.”

On the other side, proponents of the bureau’s rules — and the Supreme Court — say the Equal Protection Clause is the precise reason why total population should be used.

“Nonvoters have an important stake in many policy debates—children, their parents, even their grandparents, for example, have a stake in a strong public-education system—and in receiving constituent services, such as help navigating public-benefits bureaucracies,” the court wrote in its 2016 opinion. “By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total-population apportionment promotes equitable and effective representation.”

The State and Brooks are seeking to have the practice of counting total population ruled unconstitutional.

“The loss of an Alabama Congressional seat will be a huge loss in Alabama’s political influence and will diminish Alabama’s influence in Congress and its importance in presidential elections,”  Brooks said.

The lawsuit comes as the Census Bureau plans to ask respondents about their citizenship status for the first time in decades, leading to concerns from some Democrats that immigrants will be undercounted in the 2020 census because they will be afraid or anxious to respond about their status.

The last time the Census Bureau asked all U.S. households about their citizenship status was in 1950.

Since then, the question has been included on some long-form versions of the census — which were sent to a smaller group of households until 2000, when it was discontinued after that year’s census— and the American Community Survey, which has been sent to 3.5 million households annually since 2005.

Seventeen other largely Democratic states are suing to block the Trump administration’s inclusion of the citizenship question on the 2020 census.

 

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Ivey applauds Supreme Court opinion allowing states, localities to collect sales taxes from online retailers

Brandon Moseley

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On Thursday, Alabama Governor Kay Ivey (R) said that the decision by the U.S. Supreme Court to help states and local governments collect sales taxes from e-commerce retailers, “Will facilitate collections in our global, technology-driven economy.”

On Thursday the Court overturned a 1992 ruling that had made it very difficult for states to require online retailers to charge their customers sales taxes. The court found in favor of the state of South Dakota in today’s ruling in the case of South Dakota v. Wayfair.

“Technology and the advent of e-commerce has drastically changed the retail landscape and the states’ ability to collect sales taxes,” Governor Ivey said. “The Supreme Court’s ruling related to online sales taxes is a common-sense approach that modernizes existing limitations on the taxation of e-commerce sales and will facilitate collections in our global, technology-driven economy. The change effected by the Court’s decision will promote parity between our state’s brick and mortar businesses and competing out-of-state sellers.”

The ruling freed states and local governments to start collecting billions of dollars in new sales taxes from online retailers, overturning a 1992 ruling that had made much of the internet a tax-free zone. Traditional retailers have said that they have been at a disadvantage because their online competitors did not have to charge sales taxes,
The sales taxes are still due and technically Alabama citizens are supposed to keep a record of their online purchases and then pay the sales tax with the rest of their taxes; but very few people know of that,

The court’s 1992 decision involving catalog sales had shielded retailers from tax-collection duties if they didn’t have a physical presence in a state.

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Justice Anthony Kennedy wrote today’s narrow 5 to 4 decision for the majority.

Kennedy wrote that the 1992 ruling, Quill versus North Dakota, was obsolete in the e-commerce era.

It is estimated that today’s ruling will allow state and local governments to collect anywhere from an additional $8 billion to as much as $23 billion a year in additional taxes.

It is not clear at this time if this might give international sites an advantage over domestically located retailers. Items such as e-books, software, movies, songs, etc. are increasingly marketed as downloads rather than an item that is shipped in the mail.

It is also not clear how this affects marketplace web sites that bring buyer and seller together, like E-bay.

“Today’s ruling is limited to large online retailers and confirms that small businesses are clearly viewed differently by the court,” EBay said in an email. “Now is the time for Congress to provide clear tax rules with a strong small business exemption.”

It is also not clear if the states can make this retroactive and sue online retailers for years of uncollected sales taxes.

The value of Wayfair stock dropped on the news.

Only five states do not impose sales taxes.

Amazon had already begun charging sales taxes; but thousands of online retailers, notably Overstock.com, do not,
Rates vary from state to state and even from town to town. Also many states do not charge sales taxes on items like foodstuffs. Alabama does charge sales tax on food; but not on certain seeds and agricultural products.

Then Alabama Governor Robert Bentley (R) had strongly lobbied Congress for legislation allowing states to tax e-commerce during his first term; but the Congress never passed that legislation.

The state of Alabama is looking forward to increased sales tax collections after Thursday’s ruling.  Alabama consumers may have to expect to pay five to ten percent more for their online purchases than they are now.

(Original reporting by Bloomberg News’s Greg Stohr contributed to this report.)

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Byrne, Rogers and Roby were decisive votes to pass the Farm Bill

Brandon Moseley

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Thursday June 21, 2018 U.S. Representatives Martha Roby, R-Montgomery, Mike Rogers, R-Saks, and Bradley Byrne, R-Montrose, voted in favor of HR2, the Agriculture and Nutrition Act, also known as the 2018 Farm Bill. This bill passed the House by just two votes 213 to 211.

Congressman Rogers said, “I was pleased today to see the Farm Bill finally pass the House of Representatives. As the only member of the House Agriculture Committee from the State of Alabama, I know firsthand the Agriculture industry makes up over 40 percent of our state’s economy and that our farmers and producers count on this legislation every five years.”

“I am proud to serve Alabama’s Second District where agriculture is the largest employer, responsible for more than 93,000 jobs and more than $11 billion in economic impact,” Congresswoman Roby said. “I know how critically important it is that Congress deliver agriculture policy that actually works for farmers throughout Alabama and our country and makes their important work easier, not harder. I was glad to be a voice for Alabama’s farmers throughout the process to ensure that our commodities receive fair treatment. This farm bill addresses many of the challenges farmers face daily, and that’s why I was proud to cast my vote in favor of the legislation today.”

Congressman Byrne said: “Our farmers and foresters are good stewards of the land, and I am pleased the House could pass this important legislation to ensure that our family farms and rural communities have the resources they need to keep up with the challenges of today.”

The bill is controversial because of requirements that able-bodied persons seeking nutrition assistance work.

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“Also important, the Farm Bill will encourage able-bodied adults to find jobs and get back to work by reinforcing work requirements in order to receive SNAP benefits, commonly known as food stamps,: Byrne added. “In this economy, there is no excuse for capable Americans to not seek out employment. By encouraging Americans to find and retain jobs, we ultimately lift people out of poverty, strengthen the overall economy, and help save taxpayer money.”

“This year, the legislation will help people pull themselves out of the cycle of poverty because it makes meaningful reforms to the Supplemental Nutrition Assistance Program (SNAP),” Congressman Rogers added. “It helps to incentivize all able-bodied individuals to work part-time or receive free training they need to find a job. Keep in mind, this does not apply to children, the elderly, expectant mothers, disabled individuals or caretakers of children.”

Each year, Congressman Byrne holds an “Ag Matters” tour and visits family farms and forest land throughout Southwest Alabama. The Farm Bill is one of the most talked about items each year.

“This year, the Farm Bill also provides support for Land Grant universities like Auburn and Tuskegee. It also helps our area because it will bring quality broadband service to rural areas – like much of East Alabama – where folks need the service the most. The Farm Bill will be good for our area and I was glad to see it pass the House with my full support today,” Rogers said.

Congressman Mike Rogers is a senior member of the House Agriculture Committee which crafts the farm bill.

Congressman Byrne’s office said that among the many important provisions, the bill:

Includes provisions critically important to Alabama’s cotton and peanut farmers
Maintains access to crop insurance through reduced premiums and waived fees
Improves existing programs to maximize efficiency, reduces waste and maintains fiscally responsible stewardship of taxpayer dollars
Restores funding for trade promotion efforts in an attempt to keep pace with trading competitors around the world
Establishes substantive work requirements for work-capable adults
Increases funding to $60 million per year for the Emergency Food Assistance Program, with $20 million to be used for the Farm-to-Food Bank program providing inexpensive food for low-income families;
Provides strong incentives for providers to offer quality broadband service to all of rural America
Helps equip and train the next generation of farmers

Supporters say that “the Agriculture & Nutrition Act of 2018 works to address the 5-year, 52-percent decline in the farm economy by providing certainty that an extension of current policy cannot provide. The bill reauthorizes and strengthens the Agriculture Risk Coverage (ARC) and Price Loss Coverage (PLC) options through 2023. Producers are given an opportunity to make a new election between ARC and PLC with several improvements, including allowing a new yield update opportunity for producers who were facing severe drought during the previous yield update, allowing reference prices to adjust to improved market conditions, and prioritizing the use of RMA data for administering ARC to minimize disparities between counties.”

The bill now goes to the U.S. Senate for its consideration.

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Elections

Ethics Commission clears Luther Strange

Josh Moon

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Luther Strange is off the hook.

The executive director of the Alabama Ethics Commission told APR on Wednesday that the commission determined a few sessions ago that allegations that Strange violated campaign finance laws were unfounded.

The two allegations, which were filed by Secretary of State John Merrill’s office during Strange’s special election campaign for U.S. Senate last year, were considered potential felonies and centered around Strange’s federal Senate campaign transferring funds to his state-level attorney general’s campaign account.

Ethics Commission executive director Tom Albritton said several factors went into determining that Strange had not violated the law. Most importantly: “The statute controlling the transfer from a federal campaign account to a state campaign account requires the candidate to be a state or local candidate. Luther Strange was not,” Albritton said.

Merrill disagreed with the commission’s decision, saying his staff’s understanding of the applicable laws forbids Strange from making the campaign account transfers in question.

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“We understand that the Ethics Commission can do whatever they want with the things we send them,” Merrill said. “We do not agree with their finding, but it’s not our job to rule. It’s our job to pass along the violations. We did our job.”

While the laws governing the issue are complicated, the transfers at the center of the debate are fairly easy to understand. In December of 2016, Strange’s federal campaign account, in a series of transfers, sent a little over $1,400 to his state-level campaign account. The money was being used to pay for an already-purchased website domain.

The problem was the $1,400 exceeded the $1,000 threshold allowable for the transfers and also fell outside of the 120-day window. Former Alabama Gov. Robert Bentley was forced to resign after accepting a donation outside of the 120-day window.

But according to Albritton, that’s where the mixing of federal and state laws make things murky. Because in addition to Strange, who was running for U.S. Senate, not being a state-level candidate, the law also requires the transfer to be a campaign contribution before it can be considered illegal.

“The transfer was made in order to reimburse the state campaign for an unintentional payment by the state campaign for the domain maintenance fee for the domain that the federal campaign had already purchased,” Albritton said. “It was not intended to influence the election of a state or local candidate.

“Federal law preempts state law in this circumstance. Federal campaign finance laws required the reimbursement for the state campaign. If they had not repaid it, it would have been a violation of federal campaign laws.”

Albritton said that Merrill and his office can forward their findings directly to the Alabama AG’s office if they feel a mistake has been made.

The Ethics Commission decision on the matter will likely add fuel to what is becoming a fiery feud between it and Merrill’s office. Just last week, Merrill was particularly critical of the Commission’s decision to pass on issuing fines to candidates, businesses and PACs that failed to file campaign finance reports on time.

During an interview with APR last week, Merrill was asked whether his allegations against Strange had been resolved by the Ethics Commission. At that time, he said he wasn’t sure, prompting APR to raise the question with Albritton. It doesn’t appear as if the decision on the Strange allegations has been previously reported in the media.

 

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State, Mo Brooks sue to block counting of immigrants in 2020 census

by Chip Brownlee Read Time: 5 min
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