Lessons from a Century of Voting Reforms

December 31, 2016

Let’s discuss voting issues today.  Well more than a century of experience has gone into the way we vote. That century should be a source of confidence and concern because none of us is old enough to remember why all the rules are in the statutes.

If you’ve seen the 19th century election day paintings, people came to the polls with pieces of paper and dropped them in the ballot box. That made voting very public. Some states required an open, public ballot. That can be a protection but it also made voters vulnerable. Employers and landowners could and did retaliate economically. As political machines took root, they bribed, threatened and attacked voters to get what they wanted. Parties produced colored ballots that voters carried to the polls. They held their ballots up on their way so everyone could see and then dropped their colored ballots into the box. That satisfied the local machines. And it meant that elections were widely corrupted. Can you imagine a local gang, party operative or factory boss telling you whom you had to vote for and backing that up with beatings and bribes? Unfortunately that’s well-documented, both in big cities and small towns.

The secret ballot was developed around the turn of the 20th century to help solve that problem. It put the names of all the candidates on a single piece of paper so it wasn’t obvious who the voters supported. The idea was imported and known as the Australian ballot. Coupled with it was the development of election machinery, hardware like the lever machines we used in New York for quite a long time. But the election statutes reflect lengthy experience with attempts to defeat the secrecy and the security of the machines. So rules required inspecting, securing and sealing the machines, and identifying the voters at the polls based on permanent books of signatures. We had moved quite far from the chaotic march to the polls with random pieces of paper.

Some lessons from that history: It is easier to control the polling place itself than what happens at home or at work, where people might confront orders backed with threats or bribes on how to vote. But that doesn’t work without a way to verify what you did, and enforcing the secret ballot makes it hard to tell how you voted. Thank heavens most of us now have secure polling places. The secrecy and security of the ballot are essential.

The problem of imposters at the polls has largely been solved. But absentee ballots remain a security concern because of the opportunity for others to see, bribe, trick or intimidate the voter. Obviously there are some people who need absentee ballots, but early voting is a safer procedure for those who can get to the polls.

Now in the age of computers we seem to be trying to reinvent the wheel because we have forgotten what the problems were. But programmers, computer engineers and indeed their professional association, the IEEE, has made clear that touch-screen and internet voting cannot be secured given what we know now. Therefore, given current technology, New York’s choice of scanners with paper ballots is the safest available choice IF we do sample post-election checks of the machines against the paper ballots. We should not shift to a new system given the existing state of knowledge and tools. But sample checks should be universally required to keep the system honest, and Jill Stein is right to demand recounts to check the integrity of the system.

Selfies, on the other hand, are a problem. They create the ability to verify who one voted for. That, of course, is why people take them. But it makes it possible for nefarious groups to bribe or intimidate voters. We developed the secret ballot to protect voters and keep elections clean and honest. We need to stick to it.

— This commentary was broadcast on WAMC Northeast Report, December 13, 2016.


Postmortem

November 15, 2016

I feel like I’m in mourning. The presidency has been taken by a con man and we all deserve better – those he’s duped as well as the rest of us.

  • Trump was “elected” by an “electoral college” system designed in the 18th century to protect slaveowners by augmenting their votes with 3/5 of their slaves.
  • He was “elected” by a Court unwilling to protect the voting rights of all American citizens.
  • As in 2000, when Al Gore won the popular vote but George Bush became President, the 2016 popular vote went to Mrs. Clinton. President Bush proceeded to make colossal mistakes in foreign affairs for which this country will spend a century paying.
  • Trump was elected with the votes of people who had suffered financially over the past two decades – but they voted for the very people who refused to lift a finger to provide jobs, people who don’t believe government should do anything, including good and important things, and for whom blocking anything Obama wanted to do was more important than helping fellow Americans. With Republicans benefitting from that cynical and deceitful strategy they are back in control of Congress. Good luck to the coal miners, autoworkers, steelworkers and others – they’ll need it.
  • We will now have a dirty old man in the White House as a “role model” for the worst behavior toward women.
  • And his rhetoric threatens to take apart the signal achievement of America – our mutual respect across faith, national origins, class, race, and counting – an achievement central to the status and future of the very people who voted for hate.

I am worried, crestfallen and embarrassed. What is there to do?

First, I have become a supporter of Supreme Court term limits. Rehnquist spent 34 years at the Court, Stevens 35, Scalia 30 and Thomas has been there 25. Erwin Chemerinsky, widely respected dean at the University of California at Irvine School of Law wrote:

The idea is that each justice would be appointed for an 18-year, non-renewable term. A vacancy thus would occur every two years. Vacancies that occur through resignation or death would be filled by appointing someone to serve the unfinished part of the term.

That way the Court would not be dominated by political decisions made decades ago.

Second, I would not confirm any new justice until there is agreement to reverse the decision that allowed states to monkey with their election rules to disenfranchise voters, and until there is agreement to adopt one of the mathematical rules that precisely measure gerrymandering, the level of favoritism to either party – known as symmetry or wasted voters. Some will object that those decisions are for the justices. Nonsense – the appointments clause is the political check and those decisions put the justices’ prejudices ahead of self-government and assured Republican victories, roles no judge should be playing. Those decisions were partisan, self-serving and should be ruled unconstitutional.

Third, we need to get across to people that refusing to vote because there is someone else we like better is a very bad choice because it has very bad consequences. In a democracy, to live and work together we have to be willing to compromise. It’s part of the deal.

Finally, we need to organize. 2018 is two years away and Congress will be at stake again. True patriots don’t give up.

— This commentary was broadcast on WAMC Northeast Report, Nov. 15, 2016.


Against whom the rebellion?

November 8, 2016

This is my last chance to talk with you before the polls close.

Republicans have argued since the 19th century that the market solves all problems. Democrats by contrast solve economic problems by investing in the people and the infrastructure they need to get their work done – things business can’t partly because of competitive pressures and partly because they can’t reap the benefits of projects that help the general public.

Because getting things done requires both the president and Congress, split government favors the Republicans. Democrats need both branches and both houses of Congress to pass the laws  that make their economic programs possible. Looking back to 1994, there have been only four years in which Republicans did not control at least the Senate.

There is a well-justified need to rebel against the way the economy and the government have been treating you, and the Republicans should bear the brunt of that rebellion.

They insist that investors would use tax breaks to create new jobs in this country. In fact, tax- break beneficiaries can invest the money anywhere. So when Republicans give wealthy businessmen more money, we just get the risk. Their friends get tax breaks; workers get laid off. Their friends close factories; workers look for jobs. Their friends freeze wages; workers look for second and third jobs just to keep going. Their friends downsize for efficiency, leaving workers unemployed, unhappy, and looking for a way to earn a living.

The economy is organized for the guys on top. Dealing with it, making America truly great for all of us, takes more than the Republican nostrum of lowering taxes. Businesses invest where they find markets, workers, infrastructure, and where they’re attracted by the comfort or the cultural life for themselves and those they want to hire. Taxes have little to do with it.

That’s why Obama’s and Hillary’s investment in infrastructure and emerging industries is a better deal to create jobs and opportunities for everybody. There are many reasons to invest in America – unless we let it fall apart, let our infrastructure crumble, and don’t keep it up to date.

Whether Trump understands real estate, where he’s managed to lose lots of other people’s money, Trump clearly doesn’t understand the economy. The old trope about taxes won’t grow the economy. And his promises are cynical because people won’t invest in outdated, high cost, low return industries when there are better opportunities, no matter how much he yells about it.

Which gets back to something else Trump doesn’t understand. Government needs to work on shifting the risk, to make it easier for the vast majority of Americans to find new sources of income, if necessary to move where the jobs are, on more than a hope and prayer of avoiding homelessness. That’s not in the big generalities that so-and-so will fix things. That’s in the details. You work on those; you study those; the job isn’t all in the bluster.

We’ve had enough of Republicans blocking every effort to build the economy, protect its workers and take care of all the people. It’s time for a smart rebellion – not a wild swing with eyes closed.

So do vote if you haven’t already. It matters.

— This commentary was broadcast on WAMC Northeast Report, Nov. 8, 2016.


Sotomayor’s dissent in Utah v. Strieff, Part II

September 6, 2016

Last time I read a portion of a dissent by Justice Sotomayor.[1] The Supreme Court of Utah had held that the Utah police had violated the defendant’s constitutional rights. The United States Supreme Court overruled that decision. In the portion of her opinion I read you last time, Justice Sotomayor explained what happens, not always, but what often happens when police stop people. And she explained what the Supreme Court authorizes police to do. Justice Sotomayor explained the ways that stops of people regardless of innocence of any crime, let alone any crime deserving jail time, can injure decent citizens. I didn’t have time to read you the last part of her opinion, so I will read it now:

This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes,[2] many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this manner.[3] But it is no secret that people of color are disproportionate victims of this type of scrutiny.[4] For generations, black and brown parents have given their children “the talk”—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them.[5]

By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.

We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.[6] They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.

***

I dissent.

Justice Sotomayor was born in New York City to parents from Puerto Rico. After compiling stellar records at Princeton and Yale Law School, she became a prosecutor, eventually going into private practice. She spent six years as a federal judge, another decade as a federal appellate judge, and joined the Supreme Court in 2009. She writes from every angle of the criminal justice system, as an experienced prosecutor, attorney, member of the community, and judge. Her citations are to decisions of the United States Supreme Court. Before she left the Court, Justice O’Connor wrote a stinging dissent to one of the decisions Justice Sotomayor cites.[7] She was coming to understand the enormity of what the Court has authorized. But this is the Court we have. Is this the Court we want?

— This commentary was broadcast on WAMC Northeast Report, September 6, 2016.

[1] Utah v. Strieff, 136 S. Ct. 2056, 2069-71 (2016) (Sotomayor, J., dissenting).

[2] [Dept. of Justice, Civil Rights Div., Investigation of the Newark Police Department 8, 19, n. 15  [2069]  (2014), online at https://www.justice.gov/sites /default/files/crt/legacy/2014/07/22/newark_findings_7-22-14.pdf.] at 8,

[3] See M. Gottschalk, Caught 119-138 (2015).

[4] See M. Alexander, The New Jim Crow 95-136 (2010).

[5] See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015).

[6] See L. Guinier & G. Torres, The Miner’s Canary 274-283 (2002).

[7] Atwater v. Lago Vista, 532 U. S. 318, 360 (2001) (O’Connor, J., dissenting).


Sotomayor’s dissent in Utah v. Strieff, Part I

August 31, 2016

I want to read you a portion of a recent dissent by Justice Sonia Sotomayor in which she explains what I think many do not understand about what happens when police stop people on the street.[1] I will skip her citations but you can read them on the website. She wrote the last part of her dissent for herself alone. I think it is well worth your hearing that portion of her dissent in Justice Sotomayor’s own words:

Writing only for myself, and drawing on my professional experiences, I would add that unlawful “stops” have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens.

Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more. This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact.[2] That justification must provide specific reasons why the officer suspected you were breaking the law,[3] but it may factor in your ethnicity,[4] where you live,[5] what you were wearing,[6] and how you behaved.[7] The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction—even one that is minor, unrelated, or ambiguous.[8]

The indignity of the stop is not limited to an officer telling you that you look like a criminal.[9] The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline.[10] Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.”[11] If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may “‘feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’”[12]

The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or “driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fastened.”[13] At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to “shower with a delousing agent” while you “lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.”[14] Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the “civil death” of discrimination by employers, landlords, and whoever else conducts a background check.[15] And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future.[16]

More next time.

— This commentary was broadcast on WAMC Northeast Report, August 30, 2016.

[1] Utah v. Strieff, 136 S. Ct. 2056, 2069-71 (2016) (Sotomayor, J., dissenting).

[2] Whren v. United States, 517 U. S. 806, 813 (1996).

[3] Terry v. Ohio, 392 U. S. 1, at 21 (1968).

[4] United States v. Brignoni-Ponce, 422 U. S. 873, 886-887 (1975).

[5] Adams v. Williams, 407 U. S. 143, 147 (1972).

[6] United States v. Sokolow, 490 U. S. 1, 4-5 (1989).

[7] Illinois v. Wardlow, 528 U. S. 119, 124-125 (2000).

[8] Devenpeck v. Alford,  [2070]  543 U. S. 146, 154-155 (2004); Heien v. North Carolina, 574 U.S. ___,  (2014).

[9] See C. Epp et al., Pulled Over, at 5 (2014).

[10] See Florida v. Bostick, 501 U. S. 429, 438 (1991).

[11] Terry, 392 U. S., at 17.

[12] Id., at 17, n. 13.

[13] Atwater v. Lago Vista, 532 U. S. 318, 323-324 (2001).

[14] Florence v. Board of Chosen Freeholders of County of Burlington, 566 U. S. ___,  182 L. Ed. 2d 566, 573 (2012); Maryland v. King, 569 U. S. ___, 186 L. Ed. 2d 1, 30 (2013).

[15] Chin, The New Civil Death, 160 U. Pa. L. Rev. 1789, 1805 (2012); see J. Jacobs, The Eternal Criminal Record 33-51 (2015); Young & Petersilia, Keeping Track, 129 Harv. L. Rev. 1318, 1341-1357 (2016).

[16] A. Goffman, On the Run 196 (2014).


Silencing: Pensions, Kurds and Black Lives Matter

August 16, 2016

We watched a Black Lives Matter march pass in front of our house recently. It reminded me of something that happened in 1972, when NBC aired a documentary called “Pensions: The Broken Promise.” It described many instances in which loopholes in pension plans left people without the pensions they thought they had. The narrator called the “situation” “deplorable.” The documentary won many awards and played a part in developing public support for pension legislation which now goes under the acronym ERISA.

But a group called Accuracy in Media sued pursuant to the now defunct “fairness doctrine,” claiming that the documentary presented a “distorted picture of the private pension system” because almost nothing was presented on the positive side.[1] They wanted to censor NBC for not airing another program about all the good pensions. The U.S. Court of Appeals for the D.C. Circuit ruled in favor of NBC. The instances detailed in the documentary really happened; they were undisputed. The complaint asked NBC to air a documentary on a different issue – the overall soundness of pensions in America. The Court understood that requiring NBC to discuss the overall issue would dilute its attack on the abuses that had been allowed and had left many workers without pensions. It also might mean that broadcasters in the future would pull their punches, and avoid controversial exposes, no matter how valuable. Those consequences would neuter, rather than contribute, to public discussion of controversial issues of public importance.[2]

Let me turn to another place where the same tactic is being used. Turkey has not allowed Kurdish grievances to be raised. The government says that there are no Kurds, or no loyal Kurds; there are only Turks. So they can talk about grievances so long as they have nothing to do with Kurds. Having silenced Kurds, they then continue to fight a shooting war against the Kurds.

There have been calls for the same method of silencing in an American context today. Various groups attack Black Lives Matter because they say, accurately, that all lives matter. But the meaning of their attack is to neuter the Black Lives Matter campaign. Of course all lives matter, but African-Americans have had distinctive problems. To require Black Lives Matter to discuss the whole issue of abusive treatment of everyone would dilute their campaign, their point, and make it harder to focus on the difference in the way people are treated, the reason why Black parents have to have “the conversation” with their children about what to do if the police stop them, a conversation white parents don’t need to have. Objections to the slogan, that Black Lives Matter, is an effort to keep the veil over a serious injustice in our society.

Of course all lives matter. But most of us understand the phrase “Black Lives Matter” as meaning that Black lives matter too. That’s standard English, both because meaning in our language comes from context and because a positive statement does not imply the nonexistence of everything else. There is no negative implication that other lives don’t matter; there is only emphasis – Black lives, the lives of Black people, are important, they matter, they have been ignored, and that has to stop. Yes, Black lives do matter.

— This commentary was broadcast on WAMC Northeast Report, August 16, 2016.

[1] In Re Complaint by Accuracy In Media, Inc. Concerning Fairness Doctrine Re NBC, 40 F.C.C.2d 958 (F.C.C. 1973).

[2] NBC v. FCC, 516 F.2d 1101 (1974). Note that the 1974 decision has been vacated on other grounds and is no longer available on common online sources but is available in the hard-copy reporters.


Proposed Amendments to Overcome Citizens United

July 19, 2016

This is the third in a series on Money in Politics. Last time we discussed the difficulty of getting the Court to overrule Citizens United. Because of that, several constitutional amendments have been proposed as joint resolutions and introduced in Congress in order to undo Citizens United and overrule the idea that a corporation is a legal person. After studying them, however, it became clear they have been so sloppily drafted that no one could tell you what they would do.

None that I’ve seen addresses the associations we join. Political, civil liberties, civil rights, and environmental organizations, and professional associations, all take stands on candidates or political issues. The ACLU went to court years ago to protect its ability to take out an ad over the impeachment of President Nixon.[1]

All except the smallest are incorporated and are protected by the right of association. The First Amendment protects speech, press, assembly and petition. In combination, that’s what our associations do to influence public attitudes about major issues. They incorporate to outlast their founders, use the courts, open bank accounts, organize membership and leadership, seek tax-exempt status and protect members from liability for any mistakes the organizations make.

Those associations matter. The lasting impact that people like Rosa Parks and Martin Luther King had on the Civil Rights Movement depended on the organizations that did the advance work, and drove home the meaning of what they and other great leaders of the Movement did. That’s true of most successful political movements. Yet the proposed Amendments stop after denying that corporations have constitutional rights and authorizing legislatures to regulate them.

A literalist could read the Amendments as superseding and repealing all previous protections for the organizations we rely on to reform politics, the environment, civil rights and just about everything we care about. Nothing in the proposals protects them.

Sometimes courts hang on to interpretations of older text and neuter newer language, as the Supreme Court has with language in the amendments passed in the aftermath of the Civil War. In the absence of any language about associations, it is impossible to say what the courts would do to the proposals regarding associations.

One proposal denies that it limits the people’s rights, but it is attached to text which limits what the Court defines as part of the people’s First Amendment rights. The meaning of that exception is mysterious, just authorizing courts to figure it out.

Only two amendments mention a free press. They merely say they “shall [not] be construed to alter the freedom of the press.” That’s nice but the exceptions swallow the proposals because much of political campaigns is in or can be done by the press. Whoever controls the distinction controls the result, whether authorities can squelch the press or the press becomes the next form of improper power.

Corporations often set up subsidiaries for otherwise regulated functions, such as associations or media companies, like what Murdock did with Fox. Some media companies are owned by conglomerates. Many associations set up separate organizations for tax purposes. The NAACP set up Thurgood Marshall’s organization around 1940 to separate its legal work from other organizational work. Lawyers fashion ways to live with rules. So what would a press exception do?

Nor should media companies and political associations have a monopoly on political speech. The law should be neutral and should not protect the speech of some while shackling the speech of others.

Whatever you think of the Roberts Court, and I’m no fan, these are serious issues and no proposal addresses them. Instead they provide feel good language covering sloppy and dangerous clauses.

— This commentary was broadcast on WAMC Northeast Report, July 19, 2016.

[1] Amer. Civil Liberties Union, Inc. v. Jennings, 366 F. Supp. 1041 (D.D.C. 1973).


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