Archive for the ‘Election’ Category

A possibly-obvious preamble: other parties, including Democrats, are also inconsistent and shift priorities based on opportunism. The main thrust of this article is that Republicans are much more consistently opportunistic, to the point that the only reliable party platform it has consistently held in the past few decades is to simply obstruct the Democrats. 

An old example that I can bring to bear is how the party that is most beloved by the National Rifle Association supported and passed gun control legislation under Reagan, when he was governor of California. What on earth would cause this? Because disarming politically active minorities was a bigger priority than their sacred second amendment rights. And before anyone dismisses the Black Panther Party as a violent extremist group, which is how it was painted in mainstream media, it bears noting that most of their fears turned out to be correct: it turns out the police were unfairly targeting black people and the federal government was illegally monitoring them

Even before that, the Republican party’s Southern Strategy was only opportunistic. Before the party leadership to make it an issue because they realized it could drive a wedge between southern voters and the Democratic party, Evangelicals favored abortion rights for women. The Southern Baptists, the largest evangelical organization in the US,  passed resolutions to that end at their Conventions of 1971, 1974 and 1976. However, once the party saw the opportunity, evangelical organizations pivoted and made it a political issue

Despite being the laissez-faire party of economic and personal liberalism, Republicans started and supported the War on Drugs as a way to control minorities during the war and civil rights protests of the 1970s. And not necessarily because they were racist – merely politically convenient

More recently, before the health care framework was implemented in the Affordable Care Act, also known as Obamacare, it was originally concocted by the very conservative Heritage Foundation and then adopted by Republican then-governor Mitt Romney in Massachusetts. And while I’ve criticized the legislation before (let’s face it, it’s a gift to the private health care insurance industry to require folks to carry health care insurance), taking it down now has become merely a battle-cry for Republican leadership, even though they decided not to do anything about it when they held both houses in Congress and the Presidency.

Perhaps most recently, the Republican senate majority leader Mitch McConnel, as well as many other Republican Senators, had championed the idea of not even considering presidential appointees to the judiciary, particularly the Supreme Court, during the last year of their term. This was called the Thurmond rule, after the Senator who blocked president Lyndon B. Johnson’s appointment of Justice Abe Fortas as Chief Justice. Oddly, the Republicans only seem to apply it when the president is a Democrat, if at all.

Famously the party of fiscal responsibility, The Republican presidencies have consistently seen increases in the government’s debt, the debt-to-GDP ratio, and economic recessions. To the point where president Trump was not only outspending prior presidents before the Coronavirus epidemic, but even used the epidemic to pass a $1.2 trillion bill while refusing any oversight on it. Further, they’ve perpetrated the myth that lower taxes (the purple line in the graph below is the top income tax rate, and the blue line is the effective average corporate tax rate) boosts the economy, even though it has no impact on median wages or employment (the red line in the graph below).

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Of course, no party can stay in power without voter support. Again, like the other main party, the Republican party’s messaging has a significant impact on its supporters. However, it is either more effective, or the supporters have similarly malleable positions on policy, depending on whether their party favors or opposes it at any given point in time. For example: 

I’d love for this observation to age horribly, or even be inaccurate, because I personally espouse many of the ideologies that Republicans have occasionally espoused, and have frequently voted for Republicans. But, as of late 2020, it seems very much to be the case that obstructionism is the only ideology the Republicans consistently espouse. 

The Electoral College Business

Posted: December 30, 2016 by Nazim in Election, Separation of Powers

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Now that the commotion has died down, a couple of points of clarification on the Electoral College. I’ve said a few times that it was merely a matter of convenience, a way to expedite the vote from many localities to the capital of the country, a logistical shortcut to avoid making the federal government responsible for counting all the votes in remote areas. That’s not wholly accurate.

The 12th amendment was ratified shortly after the constitution was written, and governs how this elector business is dealt with. It was, much later, over-written to a small degree by section 3 of the 20th amendment. Further clarification can be found in the Federalist Papers (number 68, to be specific), but, if you actually go through the plain text of the constitution, the steps involved are pretty simple, although their goal is still confusing. See for yourself how the president and vice-president of the United States are actually elected:

  1. Each state’s political parties nominates electors. This step is governed by state law (pdf warning) and varies a bit.
  2. Based on the votes cast by citizens in the general election for the presidential and vice-presidential candidates, the nominees selected above become actual electors for that state.
  3. Electors meet in their states and vote on two separate ballots for the president and the vice-president.
  4. Those votes are sent to Congress, where they are all counted up.
  5. If a presidential or vice-presidential candidate has a simple majority of the votes, the process of electing that office ends there.
  6. Otherwise, the House of Representatives chooses a president among the top three individuals most voted by the electors for the job.
    • Oddly, each state gets only one vote, so I’m guessing the representatives of each state have to agree on how to cast that vote. There’s no mention of how this agreement should come to be, but I have suggestions.
  7. In parallel, if the electors didn’t have a majority of votes for a vice-president, the Senate picks one among the top two most voted candidates, voting normally. If the House can’t get its act together (I know, how unlikely is that?), this lucky guy or gal becomes the president.

It’s never gotten remotely close to going past step 5, except when our nation was in its infancy.¹ We’ve had plenty of faithless electors, but any elector that gives away such intentions can be replaced by their party under Ray v. Blair, although the dissent of justice Jackson (of Nuremburg trial fame), in which justice Douglas (of civil rights fame) joined, is noteworthy:

no one faithful to our history can deny that the plan originally contemplated what is implicit in its text – that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation’s highest offices.

Sounds kinda like the power of jury nullification, doesn’t it? However, this case doesn’t address whether electors can be faithless. It just allows parties to replace them at will, or bully them with the threat of replacement, before the vote. Which drove at least one elector to just quit before the vote.

Some say that the electors should be a body empowered to do whatever it wants, making the popular vote more of a consultation with the citizenry. That’s insane, unless we agree beforehand that that’s what we’re really doing. But we never will.


¹ One such instance was when presidential candidates Thomas Jefferson and Aaron Burr tied with 73 electoral votes each in 1800. These and other events of the time are fantastically showcased in the runaway Broadway hit Hamilton.

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WHAT HAPPENED:  After a census came back showing racial disparity in Virginia voting districts, the Virginia Electoral Board instituted a policy that required a required percentage of minority population in certain areas.  As is the case whenever someone tries to do something like this, people filed suit under the Equal Protection Clause under the always-popular argument that the Constitution protects white people against attempts to prevent discrimination.

WHY IS THIS BEFORE THE SUPREME COURT:  In essence, this is quintessential Supreme Court, as it brings the complicated tests from the Affirmative Action into the historically mismanaged realm of election redistricting.  This is kind of like when networks try to “cross-over” popular televisions shows, but instead of having the doctors of ER date Rachel and Monica from FRIENDS, this more like the episode of ALF where thousands of Virginia citizens because disenfranchised with the electoral process.  More accurately, this case determines whether the mechanics of drawing districts to accomplish a certain goal is OK when it prevents discrimination even though it’s not OK when it’s gerrymandering.

WHAT ARE THE RAMIFICATIONS:  (Sigh) I mean, does it even matter anymore?  On paper, this should be the perfect case for the Supreme Court to dive into, as it deals with racial disparity and voting, but it’s hard to see how anyone has the attention for this after the election.  This case would have made infinitely more sense last term, but who knows whether six months later people will still be as invested.  That’s all dancing around the fact that this feels like a classic 4-4 push that gets negated when another conservative justice is on the bench.  For now, this could help resolve some issues regarding district disparities, but it’s still pound-for-pound less interesting than McCrory v. Harris.

ROOT FOR BETHUNE-HILL IF- “This week on CSI:LA, Chris O’Donnell and Ice Cube need a particular set of skills to solve this week’s crime, so they turn to Sheldon from the Big Bang Theory!”

ROOT FOR VI BOARD OF ELECTORS IF – fairer voting practices is an issue you’ve read about, posted about, commented on, or got in a fight with someone about on social media.

PREDICTION – 4-4 push.

Step Zero

Posted: November 30, 2016 by Nazim in Election, Moral High Ground, Politics

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The “recent unpleasantness” was the way some politician referred to the Civil War, I believe, and I’ll steal the euphemism to say that the recent unpleasantness has caused a great stir among the people I know, and in mostly negative ways, as I mentioned in the recent episode. Personally, my reaction has been to re-evaluate: I was wrong about some things before the election. I might be wrong about others. Some have taken this to mean that they should be passive, or acquiescent, or something else they somehow both didn’t want to hear and at the same time heard. I can’t speak intelligently about humans – I include myself in that group – but lucky for me, others can.

I was trying to work this article on cognitive bias into some kind of election preparation piece that never came together, but find useful now. The short of it, because, if I’m frequently too lazy to click through, you might be as well, is this quote:

 

  • We don’t see everything. Some of the information we filter out is actually useful and important.
  • Our search for meaning can conjure illusions. We sometimes imagine details that were filled in by our assumptions, and construct meaning and stories that aren’t really there.
  • Quick decisions can be seriously flawed. Some of the quick reactions and decisions we jump to are unfair, self-serving, and counter-productive.
  • Our memory reinforces errors. Some of the stuff we remember for later just makes all of the above systems more biased, and more damaging to our thought processes.

 

Voting Tools

Posted: November 7, 2016 by Nazim in Due Process, Election

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Voting is the process that the courts recognize as due for many remedies: all the ones of a broad nature that only policies would really fix or improve.  In that spirit, and in no particular order, here are a bunch of tools to help you cast your vote:

Two reminders. First, if anybody blocks your way to your voting location (including the voting booth), call the justice department at 1-866-OUR-VOTE. Second, if you’re in line to vote by the location closes, they have to let you vote. Third, some states forbid photography in the polling station, so check here before taking the gamble. Okay, those were three, but who said I could count?

What is a Discriminatory Voting Law?

Posted: November 7, 2016 by beguide in Election, Uncategorized

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With twenty four hours to go before Election Day, it seems like the parameters of what constitutes legal/illegal voting procedures is completely up in the air.   It is safe to attribute this development to Shelby County v. Holder, the Supreme Court case which invalidated the Voting Rights Act, left States with more leeway to pass voting regulations, and gave Courts no guidance on what constitutes voter discrimination.  Within the law, such uncertainty is known as a “matter of first impression”, where the Court is asked to resolve an issue that has no precedent.  The Supreme Court will likely provide some context in McCrory v. Harris, but in the meantime, let’s consider four recent rulings and what they might say about what constitutes an illegal voting statute on November 7, 2016.

PA Ballot Provision on Retirement Age

Pennsylvania contains a ballot provision seeking to raise the retirement age of judges from 70 years old to 75 years old. The wording of the provision has been contested because it does not state the current age of retirement or that a retirement age currently exists, which challengers argue does not give voters an accurate view of the issue. The background of this dispute is divided down party lines, where it is alleged that Republicans advocated for this language in hopes of passing the provision so that the current Chief Justice can stabilize the Republican presence on the Supreme Court.

What Does This Say About Voter Discrimination

This case doesn’t serve as an example of voter discrimination per se, but more to set the table for how bipartisan politics that enter into voting procedures.  This issue should be straight forward, but the nominal wording of the ballot makes this either a facially neutral provision dealing with retirement age or a political mechanism used to manipulate voters.  While it is easy to cry foul, we shouldn’t forget Harlan’s Razor, which warns against attributing malice to what is adequately explained as stupidity.  Ultimately, fraud is in the eye of the beholder, and the extent to which you attribute malicious intent to circumstantial evidence is likely a greater indicator of what is happening here rather than how you plan on voting this Tuesday.

 

Ohio Injunction Against Trump Supporters

Trump supporter Roger Stone planned on monitoring Ohio voting sites under a program called “Stop the Steal”, which sought to prevent election fraud by monitoring voting sites and conducting post-ballot polling.  Fearful that this would intimidate voters, plaintiffs sought an injunction barring the group from engaging in any activity that would dissuade voter turn-out.  The injunction was granted, ordering both parties to desist in any activity that would “harass”, “delay”, or “interrogate” voters.  At the time of publication, this order was appealed to both the 6th Circuit Court of Appeals and the Supreme Court.

What Does This Say About Voter Discrimination

This ruling also speaks less to specific voter discrimination, and more to how Judges seem more willing to make aggressive rulings to protect voting rights.   This particular ruling is a strange one, because it is at best duplicative of existing Ohio statutes preventing voter intimidation, and at worst a violation of First Amendment Free Speech rights.  It is also hard to see how effective this order is since barring people from “hindering”, “delaying” or “interrogating” voters is pretty subjective, as any person standing outside of a polling station handing out signs is just as likely to be violating this order than a loud, conspiracy-theorist Trump supporter.  Finally, a civil injunction has less effectiveness than a criminal statute; since it requires more affirmative action on behalf of the plaintiffs to ensure that the judge’s order is being enforced.  This is not to say that this injunction won’t help stop intimidating activity, but it may turn out to be an “ask-for-forgiveness-instead-of-permission” situation, where anyone inclined to monitor voting sites is probably indifferent to civil penalties anyhow.  In the end, this order has good intentions, but it’s mostly sizzle and not a lot of steak.

 

SCOTUS Denies Appeal on Michigan Straight Ballot Ban

Michigan lawmakers passed a host of voting laws which generally made voting more difficult for the citizens of Michigan. In addition to limited early registration and passing voter ID laws, Michigan eliminated straight ticket voting, which allows voters to cast a ballot for all candidates down party lines.  The purpose behind this law was to encourage better voter participation and since voters would have to affirmatively choose each candidate rather than just press one button for “democrat” or “republican”.  In August, the straight ticket ballot was declared invalid by Federal Courts for unduly prejudicing of African American voters, on the theory that straight ticket ballot is used with great frequency by African American voters and doing away with this procedure would create longer voting lines and discourage voter turn-out.  Michigan lawmakers appealed the decision to the Supreme Court, who declined to hear the appeal.

What Does This Say About Voter Discrimination?

Now this is more like it, as this is a quintessential post-Voting Rights Act law that looks fine at first blush but is actually discriminatory against both minority voters and Democrats.  If we break down the Court’s analysis on these laws, there are two big concerns; which are (1) the practical effect of the law and (2) whether there is a real need for the passing this law that warrants inhibiting anyone’s right to vote.  One can assume that any law discussed in this spectrum unduly prejudices non-white voters, so let’s call that a given. The key here is the second element; and in this case, there isn’t any legitimate reason to ban straight ticket voting if it creates any chilling effect on voter turn-out. The asserted reason, which is to encourage informed voting, is an issue of very little concern because it assumes anyone cares about lower ballot offices or that it matters whether your lieutenant governor is Republican or not. So if we’re balancing purpose v. effect, we can safely say that any law which actively chills voter turnout has to be based on a real problem that warrants government intervention.

 

SCOTUS Reverses 9th Circuit and Upholds Ban on “Ballot-Harvesting”

Arizona passed a law that made it a felony for any non-authorized person to deliver early-voting ballots on behalf of someone else.  Challenges to this law under the discriminatory provisions of the Voting Rights Act lost at the introductory levels, but won in the 9th Circuit in an en banc ruling.  Just this past Saturday, the Supreme Court got time and a half by reversing that decision and reinstating the law in time for tomorrow’s election.

What Does This Say About Voter Discrimination?

Let’s compare this ruling with the Michigan law from above to note the differences.  First, both laws have a negative impact on non-white voters, so clearly the Court is not solely concerned with whether the law has an effect on voter turn-out.  Instead, the primary difference between these two rulings is whether the law’s stated purpose addresses a real problem or if the law addresses a problem that doesn’t warrant government intervention. Whereas a ban on straight ticket balloting poorly address a hypothetical concern, you can see where a law requiring voters to cast their own votes is supported by a legitimate government interest. Allowing third parties to collect votes may help low income, underrepresented parties; but one person showing up with a box of votes looks shady, even if you have to picture the other side doing it to see where the problem lies.  Even if voter fraud is less prevalent than this election would want you to believe, requiring people to be responsible for their own votes has enough of a basis to warrant some infringement on voter turn-out.

So what have we learned?  By way of background, any voting law will have to pass scrutiny from both bipartisan challengers and a judicial system that will not rubber stamp facially-neutral laws that inhibit the right to vote. There also seems to be a balance of two considerations, with the basis supporting the law having greater weight than the effect on voter turn-out.  Although the Court is not afraid to infer discrimination, the Court won’t consider the Voting Rights Act to be a blank check that permits any voting practice that is used by non-white voters. The provisions in McCrory fit somewhere in the middle of these two cases; and while all of those provisions skew more toward Michigan than Arizona, this is clearly a swing vote situation that is just as likely to be 4-4 split than to produce an opinion giving clarity to a problem that is getting worse even at the 11th hour.  The key is here is to not forget about this problem two days from now, as resolving the ineffectiveness of the Voting Rights Act is easiest and best way to ensure that these problems are resolved years ahead of time, and not hours before the election takes place.

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For every case covered in the podcast and the Fantasy League, we will provide a brief summary of everything you need to know and worry about for each case.

WHAT HAPPENED:  In 2013, the Supreme Court invalidated a provision of the Voting Rights Act that required States and Counties with a history of discrimination to seek approval for all new statutes on voting to prevent instances of latent and overt racism. Subsequent to that decision, North Carolina jumped at the opportunity to incorporate latent racism into its Voting procedures by passing the Omnibus election law which included banned voting procedures like early voting, early registration and instituted a voter ID law.

WHY IS THIS BEFORE THE SUPREME COURT: This case was brought before the Supreme Court under the remaining provisions of the VRA which bars States from passing discriminatory voting laws. The lower court found emphatically against the law, holding that the North Carolina provisions were passed to curtail African American Democratic votes.  This ruling was supported by considerable evidence in North Carolina, and is also generally considered true all around the country, because provisions like these routinely prejudice non-white voters.  The Supreme Courts job is now to determine whether or not that’s actually true both specifically (did the lower court have the authority to make that ruling) and generally (could any Court make that ruling).

WHAT ARE THE RAMIFICATIONS OF THIS CASE:  This case is checking the pulse of the Voting Rights Act. If North Carolina (McCrory) wins, the States can do whatever they want with voting as long as they can defend their laws with a straight face. If the Harris wins, the VRA will do that thing that happens at the end of horror movies where the camera focuses in on a grave stone and then a hand pops out.  This case may also determine whether or not the provisions in the Omnibis Act, which are facially neutral, can be declared unilaterally discriminatory in all jurisdictions around the Country.

ROOT FOR MCCRORY if you view politics like a pro wrestling referee, where you can only get disqualified if you are caught red-handed with a steel chair.

ROOT FOR HARRIS if you view politics like a basketball referee, where being obtuse and substituting your judgment for someone else is the only way to keep things fair.

PREDICTION- 5-3 in support of HARRIS, with the decision on individual elements spread out among a collection of concurrence and dissents.

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A few episodes ago, Nazim may or may not have stated that Instant-Runoff voting was the best voting system there is, and suggested changing our current system to that. Well, it turns out that Instant-Runoff still allows for spoiler candidates, which is a considerable problem – albeit one that we have with the current system, so Instant-Runoff would still be a dramatic improvement over the current system due to the many other advantages it has. However, fear not, an even better system exists. Instead of ranking candidates as the IR voting system requires, simply scoring them (just like Olympic judges score athletes) to express how much you like them results in an almost perfect expression of voter intentions, and allows for mathematically certain fairest results.

This post was inspired by the debate generated by this excellent fivethirtyeight article about the fundamental unfairnesses of US elections.

Racist NC Voting Law Overturned

Posted: August 1, 2016 by Nazim in Election

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The 4th Circuit reversed a North Carolina strict voting law, holding that it had Discriminatory Intent. The rare outright reversal of a trial court is indicative of how misguided the lower court’s decision was. But the real dicks in this story appear to be the NC legislature: they requested all voting data be broken down by race before drafting the new voting law, and the decision highlights that. The overturned law isn’t just poorly designed, it’s just blatantly racist. More analysis at Election Law Blog.