The Faculty Lounge

Why Ending Gerrymandering May Benefit the GOP

The most important election law case before the United States Supreme Court this term is Gill v. Whitford, a partisan gerrymandering case from Wisconsin. In 2011 the Republican legislature drew the state’s district lines with the goal of building an insurmountable partisan advantage for the GOP. The 2011 Wisconsin redistricting plan packed Democratic voters into districts in the Madison and Milwaukee areas while evenly dispersing Republican voters over the rest of the state’s districts. The results were predictable. In the subsequent round of state Assembly races, Republican candidates garnered less than half the popular vote, but they won 60% of the Assembly seats.

To be sure, it’s not just Republicans who engage in partisan redistricting. With a handful of exceptions, most states (red and blue alike) employ nakedly partisan criteria for legislative and congressional line drawing. Indeed, while it mulls the Gill case, the U.S. Supreme Court recently granted certiorari to a case out of Maryland, Benisek v. Lamone, in which Republican plaintiffs have challenged the Democratic legislature’s 2011 redistricting plan.

But there is no doubt that in the 2010s, partisan redistricting has benefited Republicans far more than Democrats. Sweeping Republican state house victories in 2010 gave the GOP control of a critical mass of legislatures during the crucial 2011 session, when every state conducted its decennial redrawing of legislative and congressional district lines following the U.S. Census. Republicans also reaped the benefits of new and highly advanced computer programs that made the art of the partisan gerrymander more potent than ever before.

Social Movements Law as a Cognate to Law School Classes

It's no surprise to anyone that Donald Trump's recent election to the United States Presidency has spawned revolutionary and reactionary movements across the United States and abroad. No matter where one falls on the political spectrum or where one teaches, the tremendous upheaval Trump's victory has caused is evident. It's common for elections of various sorts to appear in law school classes from First Amendment Law to Election Law to Property Law, and beyond. There's even enough material to perhaps construct a course on political sign law. Yet, social movements often don't receive as much attention, save discussions about the political context of the Women's Rights Movement or the Civil Rights Movement. That's a shame because these on-the-ground organizing efforts, some of which may also appear in passing in courses on lobbying and government affairs, are often quite instrumental to legal change.  

In Communication and Rhetorical Studies, we have firmly embraced if not hotly debated social movements for some time. Beginning in about 1952 with the publication of Leland Griffin's "The Rhetoric of Historical Movements," through a forum in the Central States Speech Journal in 1980, to the present day where communication and rhetorical studies scholars analyze everything from GLBTQ+ movements to animal rights, scholars in the discipline has completed much provocative work. None of this is to indicate that legal scholars aren't doing this work as folks like Dean Spade, Donald Tibbs, and others are eagerly and passionately working with and through social movements.  Rather, I suggest that much of this work doesn't make it into the classroom.  

As protests erupt on our campuses, now may be an important time to take a day away from the syllabus and start discussion social movements. We've got some interesting essays here, an Encyclopedia of Social & Political Movements article, Harold A. McDougall's article from the Cornell Law Review, and Cary Coglianese's article from the University of Pennsylvania Law Review to serve as starting points. As our students and colleagues thrust themselves into the front lines of social movements, it just might be time to change the syllabus. Recently, I informally advised some students about the benefits (political efficacy, moral rightness, changing of minds, etc.) and dangers (walking out of class might mean you fail the day's assignments, verbal and physical violence, the potential of arrest, etc.) of protesting, the importance of media attention, and ways to best frame discussions given political differences about not only the election, but also race, class, gender, sexual orientation, religious, and other identities. The student protests at Illinois College are covered here.  Such diversions from the syllabus may also provide critical fodder for law students that want to do social justice work, whether as attorneys or not.  

So, the election upheaval provides a unique set of circumstances to discuss social movements in the classroom and although such discussions may be a departure from the syllabus, they're likely to be important as we move forward into the Trump presidency.  

On Measuring the National Mood

I stared unseeingly at my television screen until four o’clock Wednesday morning, long after Donald Trump gave his very conventional and conciliatory victory speech and all the talking heads went off the air.  Sure I’m worried about the future.  But what left me cotton-mouthed and agog that night was how surprised I was at how surprised I was. 

I cannot fathom how I could have failed to understand so many of my fellow Americans so badly.  Of course I knew that Trump had millions of followers, but like a lot of us who pull on our smarty pants every morning, I felt quite sure that it was just a vocal and angry if better-than-usually-organized minority—you know, those hillbillies J.D. Vance elegizes, and some Rust Belt denizens too passive to extract themselves from the exhaust pipe of history.  (And for some of our all-too-literal commenters, let me make explicit that this description is meant to mock and exaggerate attitudes that I think were lurking quietly in many predictions of yesterday’s election.  My point here is that it’s foolish to judge what you don’t yet understand.  Once you understand it, sure, judge all you like, and I intend to.  But first you have to know and respect it as real.)  To be sure, I had help from the mainstream media and an entire industry of professionals who make it their business to explicate and quantify the national mood.  But I accept the error, and the humbling that fairly accompanies it, as my own.

What I really want to know is not so much how Trump won as how all us folks who pride ourselves on knowing what we’re talking about got it so wrong.  These days, the pros not only give us a conventional margin of error (e.g., Hillary up by 4 plus or minus 2 points), but an outcome prediction with a probability or reliability assessment.  For example, the New York Times said on Election Day that Hillary had an 85% chance of winning.  Literally what that meant was that there was roughly a 1-in-6 chance they were wrong.  Now maybe Trump's chances really were the odds of rolling a die once and getting a snake-eye.  I doubt we'll ever know, but I’d bet that by election day a more effective assessment of the national mood would have suggested a much greater likelihood of Trump's winning, something a lot closer to even.  Nate Silver more cautiously handicapped it at 70-30.  Even that doesn't seem to capture it.

Because really it's not that much like predicting what a rolled die will show.  It's an assessment of how confident you are in your methods.  The pollsters and algorithmiacs systematically overestimated their confidence in their methods, or at least I’d bet they did.  They didn't know what they didn't know, and couldn't quantify their uncertainty because they didn't know what they might be missing.  The result was a surprise not because it was some random stroke of fate, like a winning lottery ticket, but because as hard as we looked at everything we just didn’t see some very pervasive and important stuff that was demonstrably there.

So what happened?  What identifiable and measurable phenomena went unidentified and unmeasured?  And why?

--Bernie

DC as a Rotten Borough

The Constitution gives Congress exclusive jurisdiction over the "District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States." While (as I read it) this provision does not require Congress to set up any such district as our seat of government, most proposals for DC statehood suggest carving out a tiny rump remainder of federal land (consisting of the Capitol, the White House, and maybe a few other notable marks like the National Mall or the Kennedy Center) to serve as said seat of government. As someone born and raised in the DC area, I've always found it more than a little outrageous that only a few miles from my house there were hundreds of thousands of Americans without any voting representation in Congress (I feel the same way about Puerto Rico, the U.S. Virgin Islands, and our Pacific island possessions too -- I really don't think America should be in the business of permanently possessing territories without granting full voting rights to all the residents).

In the comments to this post about DC statehood, some folks raised the potential problem of the 23rd Amendment to DC statehood provisions, and I agree with the person who suggests that Congress is well within its authority to shrink  the "district" to a tiny core, freeing up the part where people actually live to become a state like any other. But there seems to be a different problem posed by the 23rd Amendment: It guarantees "[t]he District constituting the seat of Government of the United States ... [a] number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State" (so long as this number does not exceed that of the least populous state). By its terms, the 23rd Amendment guarantees these electors to the "seat of government" no matter how few people live there -- presumably, even if there were none. In other words, the new state of DC would be entitled to its three electoral votes (as the 49th largest of the now 51 states), and then population-less federal seat of government -- a separate body from DC-the-state -- would also be entitled to its own three electoral votes by virtue of the 23rd Amendment. One can even imagine a situation where the borders are drawn a little imprecisely and there are few voters left inside the "seat of government" in charge of three electoral votes -- a true rotten borough.

Are there solutions to this (aside from a constitutional amendment)? The 23rd Amendment does guarantee the "seat of government" a minimum share of electoral votes, but it also says that these electors shall be appointed "in such manner as the Congress may direct: It does not say that Congress must link its appointment in any way to the will of the seat of government's residents (however many there are). Instead, Congress could, for example, just hand the votes to the winner of the national electoral vote, or to the winner of the majority of the electoral votes in the 51 states.

Still, I kind of like the possibility of seeing the Columbia Community Improvement District replicated on a national level.

Elon Law Professor Eric Fink Challenging "Most Powerful Republican" in NC Senate

Fellow Labor & Employment Law Professor Eric Fink has decided to challenge the President Pro Tem of the NC Senate, Phil Berger (R).  Berger is widely regarded in these parts as the chief legislative architect of the massive and regressive rewrite of many NC statutes since the Tea Party wave of 2010.  As a native North Carolinian and North Carolina lawyer, HB2 (the recent statute referred to very misleadingly as the "Bathroom Bill") is but the most recent of a series of extremely troubling legislation in the Tar Heel State.  Much of it thanks to Phil Berger, who was a reasonable and capable small town lawyer in Eden, NC before becoming a professional politician. 

More on Eric's run is here.  Cribbing a bit from the article:

“The fact that Phil Berger is running unopposed, the more I thought about it and talked it over with friends, it struck me as something that was not good,” Fink said during a phone interview from his home on Wednesday morning. “Given my views, the fact is that he’s been a leader for things that have happened in Raleigh that I think are going in a bad direction.”

Fink said he expected a Democratic challenger to take on Berger and was surprised when the primaries came in March and no one had stepped up. With the swift passage of House Bill 2 at the end of March, Fink said things became more urgent.

“That’s just such a strong new example of the kind of measures they have been adopting that I think are just not good,” Fink said. “My goal is to challenge the direction that the Republicans have been moving in and also to put forward an alternative, in broad ideas and concrete real ideas for restoring public schools and making sure everyone in the state is treated with full and equal respect.”

Eric has to get 5000 signatures from voters in the Senate District to get on the ballot as an Independent.

 

Interpreting Fiorina's Comments on Vaccination Law

I've started writing for Forbes as a regular contributor. My first piece, Carly Fiorina Says Her Views On Vaccines Are Unremarkable; For Better Or Worse, She's Right, analyzes GOP presidential candidate Carly Fiorina's recent ad hoc remarks on the relative rights of parents and schools with respect to vaccinations and to some of the hyperbolic reactions to those remarks. Fiorina's remarks are ambiguous, in ways that I discuss. But, as the title of the article suggests, and for better or worse, I think that the best interpretation of them places her stance squarely in the mainstream of current U.S. vaccination law. I end with a call for minimally charitable interpretations of others' views, especially on contentious issues like vaccination.

Dear Voter

Goodness, voting mail shenanigans are in the news. I hope to find time to blog about this experiment that has got political scientists at Dartmouth and Stanford in hot water. But for now, a quick post on another technique—this one the fruit of partisan politics, rather than an attempt at knowledge production—designed to affect voting outcomes. Nudges sometimes leverage social norms about what most people do or what most people think people ought to do to make it more likely that individuals so nudged will do that thing, too. Images (click to enlarge) and links after the jump.

Above the (Public Health) Law: Healthcare Worker Deception & Disobedience in a Time of Distrust

Addendum and updates (latest: 4 pm, 10/31) added below

 

A physician shall . . . be honest in all professional interactions, and strive to report physicians . . . engaging in fraud or deception, to appropriate entities.

 

—AMA Principles of Medical Ethics

 

 

This is a troubling series of news reports about deception and defiance on the part of some healthcare workers (HCWs) in response to what they believe to be unscientific, unfair, and unconstitutional public health measures:

(1) Ebola Aide Doc: I'm Not Telling My Team To Tell The Truth

Gavin Macgregor-Skinner, an epidemiologist and Global Projects Manager for the Elizabeth R. Griffin Foundation, who has led teams of doctors to treat Ebola in West Africa, reported that he "can't tell them [his doctors] to tell the truth [to U.S. officials]" on Monday's "CNN Newsroom."

“At the moment these people are so valuable . . . I have to ensure they come back here, they get the rest needed. I can't tell them to tell the truth at the moment because we're seeing so much irrational behavior,” he stated. “I've come back numerous times between the U.S. and West Africa. If I come back now and say ‘I've been in contact with Ebola patients,’ I'm going to be locked in my house for 21 days,” Macgregor-Skinner said as his reason for not being truthful with officials, he added, “when I'm back here in the US, I am visiting US hospitals everyday helping them get prepared for Ebola. You take me out for three weeks, who’s going to replace me and help now US hospitals get ready? Those gaps can't be filled.” 

He argued that teams of doctors and nurses could be trusted with the responsibility of monitoring themselves, stating, “When I bring my team back we are talking each day on video conferencing, FaceTime, Skype, text messaging, supporting each other. As soon as I feel sick I’m going to stay at home and call for help, but I’m not going to go to a Redskins game here in Washington D.C. That's irresponsible, but I need to get back to these hospitals and help them be prepared.

UPDATE: Here is the CNN video of his remarks.

(2) Ebola Doctor 'Lied' About NYC Travels

The city’s first Ebola patient initially lied to authorities about his travels around the city following his return from treating disease victims in Africa, law-enforcement sources said. Dr. Craig Spencer at first told officials that he isolated himself in his Harlem apartment — and didn’t admit he rode the subways, dined out and went bowling until cops looked at his MetroCard the sources said. “He told the authorities that he self-quarantined. Detectives then reviewed his credit-card statement and MetroCard and found that he went over here, over there, up and down and all around,” a source said. Spencer finally ’fessed up when a cop “got on the phone and had to relay questions to him through the Health Department,” a source said. Officials then retraced Spencer’s steps, which included dining at The Meatball Shop in Greenwich Village and bowling at The Gutter in Brooklyn.

 

UPDATE 11PM, 10/30: A spokesperson for the NYC healh department has now disputed the above story, which cites anonymous police officer sources, in a statement provided to CNBC. The spokesperson said: "Dr. Spencer cooperated fully with the Health Department to establish a timeline of his movements in the days following his return to New York from Guinea, providing his MetroCard, credit cards and cellphone." . . . When CNBC asked again if Spencer had at first lied to authorities or otherwise mislead them about his movements in the city, Lewin replied: "Please refer to the statement I just sent. As this states, Dr. Spencer cooperated fully with the Health Department."

(3) Ebola nurse in Maine rejects home quarantine rules [the WaPo headline better captures the gist: After fight with Chris Christie, nurse Kaci Hickox will defy Ebola quarantine in Maine]

Kaci Hickox, the Ebola nurse who was forcibly held in an isolation tent in New Jersey for three days, says she will not obey instructions to remain at home in Maine for 21 days. "I don't plan on sticking to the guidelines," Hickox tells TODAY's Matt Lauer. "I am not going to sit around and be bullied by politicians and forced to stay in my home when I am not a risk to the American public."

Maine health officials have said they expect her to agree to be quarantined at her home for a 21-day period. The Bangor Daily News reports. But Hickox, who agreed to stay home for two days, tells TODAY she will pursue legal action if Maine forces her into continued isolation. "If the restrictions placed on me by the state of Maine are not lifted by Thursday morning, I will go to court to fight for my freedom," she says.

On the evolving Hickox situation, it's unclear whether — as Hickox herself has suggested — she is already under a mandatory home quarantine order, which she is threatening to defy by leaving her house on Thursday morning and (unless it's been lifted) suing, or whether — as her attorneys say — she is currently under no such quarantine order and is free to leave her house at any time (but is choosing to rest for a couple of days). In any case, Maine has clearly said that it is prepared to get a court order to enforce (or impose) a quarantine order.

 

More after the jump...

 

Law Prof in Newark Mayoral Race

Shavar Jeffries, a member of the faculty at Seton Hall University School of Law, is running for Newark mayor.  His opponent is Ras Baraka, son of poet Amiri Baraka.  Professor Jeffries is a Newark native with deep roots in the city.

The New York Times has coverage here.

UPDATE 5/14/14: Mr. Baraka won the election.  Details here.

All Aboard For Stockton

I recently posted elsewhere that the City of Stockton, California had filed a plan of adjustment to which the principal competing creditors--retirees (through their proxy CalPERS) and bondholders had agreed. Implementation of the plan was conditioned on Stockton residents agreeing to raise their taxes. This past Tuesday saw those voters approve an increase in the local sales tax from 8.25% to 9%.

In my draft article, Fairness and Risk in Stockton: Pensions, Bonds, and Taxes -- When Doing Nothing is Doing Well, I observed that Chapter 9 of the Bankruptcy Code fails to include official representation of municipal residents and eligible voters. Both are indirectly represented in the sense that the officials they elected must have decided to seek bankruptcy relief but unlike creditors they lack an official voice once the case begins. Notwithstanding lack of an express statutory role, Bankruptcy Judge Christopher Klein appointed a taxpayer committee in Stockton's case. But, more importantly, California law required a vote by city residents before taxes could be increased.

So, as it turns out, in Stockton taxpayers were able to vote, albeit not directly on the plan. Yet, it remains the case that city residents as such don't have any say over their future. In other words, a city may in the course of its bankruptcy reduce municipal services. Stockton made most of its service reductions before filing but it could have equally done so during the case. City residents as a stakeholder entity have no voice. While they can "vote the rascals out" at the next election, a city whose plan has been confirmed has little leeway going forward. Thus, I recommend that Bankruptcy Courts in future cases take a step beyond what the Code requires and in most cases appoint a "citizens committee" whose mandate would be to represent the interests of service recipients. Like other official committees, the city would bear the reasonable costs and professional expenses of a citizens committee.

Municipal bankruptcy may be the best solution for the financial issues facing many cities but the vital process of plan negotiation should be open to meaningful input from all stakeholders.

Alabama Greek Tragedy Through The Media Frame

Many of us with ties to the University of Alabama have been watching the unfolding of Tuscaloosa's outrageous school board election story.  To put it briefly, incumbent Kelly Horwitz -  who happens to be the wife of Bama lawprof Paul Horwitz - was narrowly defeated by  Carson Kirby, a darling of local real estate interests, in an August 27 election.    And this would truly be mundane Alabama news (moneyed interests defeat the eggheads) but for the fact that Kirby pulled off the win with the support of a shadow University of Alabama Greek organization known as The Machine.  (Get a little background on the Machine from this New Republic article from 2002.  Or perhaps this Esquire article from 1992.  Or even this 1961 piece from the UA newspaper, the Crimson White.)  How did the Greeks do it?  With party buses, free booze, and perhaps a fraudulent registration or two.  Or three. 

This story got lots of attention around T-town and statewide.  But it didn't really go national until the New York Times picked it up on Saturday - 18 days after the election.  Why then?

As media scholars know, editors typically publish news that fits into an existing media frame.  News is more recognizable to editors and more compelling to readers when it fits into an existing storyline.  And while Greek shenanigans is an existing media frame, it's not really the dominant Alabama  media frame.  That, as we all know, is race.  

Thus, nobody was surprised when the newest example Alabama's unrelenting Greek racial segregation - the  universal sorority rejection of an overachieving African-American woman (the step-granddaughter of a former Alabama Supreme Court justice and university trustee, facts that really matter when you're talking about a white prospective) - made it into the NY Times.  The news of Greek racism first surfaced on September 11 (all kudos to the Crimson White, which broke the race story).  This Greek story made it to the Times on September 12, the following day.  It did perfectly fit the Alabama media frame.  And two days after that story, weeks after the bad election, the election story surfaced in the Times.

What interests me is that it took the activation of a University of Alabama fraternity misconduct frame, which only appeared (I believe) because of the race angle,  before the paper chose to follow through the opening the race story created and published the not-quite-so-fresh school board story two days later.  Thus, the media frame effectively inverted the chronology of these two stories.  On the Times Facebook line, presumably, Alabama Greeks performed their racism first then proceeded to steal an election.   

While that is the opposite of what actually happened on earth, perhaps the timing is irrelevant.  This Greek Tragedy is one of hubris and exceptionalism - the endless ability of Alabama Greeks  to maintain segregation and treat public affairs as a playtoy.  And, sadly, the tale of two hapless administrators - Chancellor Robert Witt and President Judy Bonner  - who, unlike those of us sitting in the audience, perhaps do not see their complicity in the unfolding drama.

Updated to edit for clarity.

The Muslim Brotherhood, Islamist Politics, and the Quest for Democracy

The comments that immediately follow below are from sundry experts and pundits on the Muslim Brotherhood (Jam`iyyat al-Ikhwan al-Muslimun) collected during what is often termed the Arab Spring in Egypt beginning in January of last year. I’d like them to serve, together with with the subsequent material by yours truly on “Islam and democracy,” as a propaedeutic of sorts—or simply a backdrop—to a forthcoming post on Hamas. Of course Hamas emerged out of the Ikhwan, in particular, the Muslim Brotherhood in Egypt and later from the Palestinian Muslim Brotherhood, but is today a wholly independent social movement and political organization. I assume throughout, with Nader Hashemi in Islam, Secularism, and Liberal Democracy: Toward a Democratic Theory for Muslim Societies (2009), that

“Normatively, secularism should not be imposed by the state on society [as in, say, Kemalist ideology or in some measure with French secularism (laïcité)] but should emerge bottom-up, from within civil society, based on democratic negotiation and bargaining over the proper role of religion in politics. In other words, in developing societies where religion is a key marker of identity, in order for religious groups to reconcile themselves with secularism, a religious-based theory of secularism is required.”

We might better appreciate this model of secularism if we recall that, historically, as Hashemi also points out, such “[d]emocractic negotiation and bargaining…was an inherent part of the transition to, and consolidation of, liberal democracy.”

(Please note: some of this material appeared previously in a slightly different version at the Ratio Juris blog, and if my stint here at the Lounge finishes before I get to the post on Hamas, it will eventually show up at Ratio Juris. I then hope to have a post or two on the role of nonviolence in the Palestinian struggle for collective self-detemination and full recognition of their rights under international law.)

The Muslim Brotherhood in Egypt:

“Yet it has been the very iron fist of the Mubarak regime that has helped make the Muslim Brotherhood the dominant opposition party in Egypt today. Like it or not, at this point in history Islamist parties do well all over the Muslim world; they have become the default opposition. Get used to it. They vary tremendously across a wide spectrum, from moderates to radicals, and include a small sliver of violent killers. These movements are constantly evolving. We must learn to work with the more moderate ones; that includes the Muslim Brotherhood in Egypt. They are not prone to love America, especially in view of our past policies, but the Brotherhood has eschewed violence for half a century and moves cautiously. If they occupy a major place in any new Egyptian government, they could well do with our help. And they will have to meet the political, economic and social demands of the people once in power: Anti-Americanism doesn’t feed bellies or reform the social order.”—Graham E. Fuller

“A final note to some American, and maybe Israeli, politicians: The Egyptian rallies are not about you. There has been no burning of American, Israeli or effigies of US Presidents because the Egyptians in the streets are not interested in politics per se. They do not fear that the Muslim Brotherhood will create an Islamic republic either. The Egyptians want change. Washington and other world capitals want ‘measured change’ that can fit their interests, something that Egyptians are not thinking of right now.”—Hussain Abdul Hussain

“Longtime scholars of the Brotherhood have cast doubts on exaggerated claims that the movement will be swept into power in a post-Mubarak/post-authoritarian Egypt. In fact, many doubt that the movement has the power to take over the entire country even if it wanted to. The Brotherhood, though the oldest and arguably best organized opposition group in the country, currently suffers from a number of ills. First, it is beset with a generation gap between the older generation of leaders, such as the current general guide Muhammad Badi‘a, and a younger generation that has sought to change the movement’s policies on a host of issues including the role of women in leadership positions and Coptic Christians. The Brotherhood is in fact no longer the dominant force that it was in the past. As a movement it has lost a lot of credibility in recent years after allowing itself to be co-opted by the Mubarak government says Khalid Medani, a professor of political science and Islamic studies at McGill University who has conducted extensive field work in Egypt including interviews with the movement’s members representing various veins of thought within it. Despite remaining the country’s largest formally organized opposition group the Brotherhood is failing to attract many new members, he says.

Although it eventually decided to participate in the January 25 demonstrations in Egypt the Brotherhood only announced its decision two days before. Its endorsement was also far from enthusiastic. Following the unprecedented size and staying power of the mass popular demonstrations against the Mubarak’s authoritarian government, the Brotherhood took a much more proactive approach in supporting the demonstrators. To date it has released eight official statements, including three signed by Badi‘a. In them the movement has been careful to not claim leadership of the demonstrations and instead says that it is simply one party among many that make up the opposition. Observers on the ground have noted that the Brotherhood is not the most visible or powerful voice represented among the hundreds of thousands to millions of demonstrators who have defied government curfews and violence to continue calling for their civil and human rights.

The Brotherhood has joined other opposition groups and demonstrators in calling for the resignation of Mubarak, the abolition of the ‘emergency law’ that has been in place since 1981 when Mubarak came to power, the holding of new elections that are actually free and fair, the release of all political prisoners, substantial amendment of the constitution, and the prosecution of government officials who have ordered the use of violence against the demonstrators. The movement has also been careful to explain its decision to enter into cautious talks with the government, which is increasingly under the public direction of Vice President Suleiman. Thus far, the Brotherhood remains unconvinced by the government’s claims that it is trying to address the popular will of the Egyptian people.

Although it is far from being a force for social or political liberalism, certainly of the kind that is desired by progressives in the U.S. and Europe, the Brotherhood is also not the all-powerful Islamist bogeyman and twin sister of al-Qaeda that it is often portrayed as. Facing its own internal divisions and problems of legitimacy among the Egyptian public, the Brotherhood is unlikely to be able to ‘seize control’ of the country even if it wanted to. Its internal problems are recognized by no one more clearly than by the Brotherhood itself, which has been careful not to further alienate the Egyptian people who have collectively led the popular uprising against authoritarianism that continues to defy an aging autocrat’s decrees even in the face of extreme state violence.”—Christopher Anzalone

Employer Communications & Election Results

It happened.  Yesterday, a Las Vegas business owner called in to a radio program to report that he had fired 22 employees because of President Obama’s reelection.  The caller explained:  “I never tell them which way to vote. I believe in the free system we have, I believe in the right to choose who they want to be president, but  . . . I can’t wait around anymore, I have to be proactive.”

In the past several weeks, there’s been some discussion in the blogosphere over whether it is unlawful for an employer to attempt to influence employee voting choice by threatening adverse employment actions over the results of an election.  In October, billionaire casino mogul Sheldon Adelson was criticized for instructing casino managers to distribute an “issues guide” to employees that suggested that the President’s positions on taxes, health care, and energy policy would threaten jobs while Mitt Romney’s positions on these same issues would “lead to working-class prosperity.” The Koch brothers similarly distributed materials threatening Georgia Pacific employees’ job security if Obama was reelected.  

Are politically-motivated adverse employment actions ever legitimate?  Where's the line between a reasonable business decision and political motivation? How would plaintiffs ever prove that impermissible considerations went into the decision?

It remains to be seen whether mass layoffs like the one in Las Vegas will be contested in court. The law on most of these types of employer communications is inconsistent and untested, so it’s interesting to consider (and would make a great student law review topic (hint hint)).

Balloting Behind (Jail) Bars

Thanks to Al and Dan for inviting me to sit a spell in the Lounge! I have been an avid reader for years, and I'm super excited about the opportunity. As Al mentioned, I'm writing a dissertation on slavery and penal systems in the antebellum South - one might think that this credential qualifies me to regularly solve Al's Civil War trivia questions (and yet, one would be wrong . . . I've only gotten one of Al's trivia questions right (!)). In any event, I'm looking forward to talking race, prisons, and property with this group.

First up, jailed prisoners and the franchise. This week, the L.A. Sheriff's Department is bringing the ballot inside the county jail. As part of an initiative to facilitate jailed detainees' access to the franchise, the Department recruited volunteers to assist jailed inmates with registration forms and absentee ballots. While hailed by some as a laudable development, some are questioning whether law enforcement agents are qualified to accurately ascertain eligibility and administer ballots for this election. This is especially tricky in California, where AB 109 (last year's "realignment" bill enacted in the wake of the Supreme Court affirming the prison population reduction order in Coleman v. Plata) has shifted jurisdiction over thousands of convicted nonviolent offenders to local jails. The populations currently being held in the state's local jails, therefore, do not share the same status - some are awaiting trial while others have been convicted and are serving sentences- and many do not share the same eligibility, an issue that may give rise to ballot integrity problems down the road. Several years ago, the ACLU compiled information about the myriad challenges of custodial voting - let's hope LA County is familiar with this history and its relative successes.

As an aside, one of the "surprises" noted by department personnel interviewed for this article was that several of the jailees registering to vote signed up as Republicans. The characterization of this demographic tidbit as a "surprise" brings to mind the work of Professor Janai Nelson of St. John's University School of Law. Nelson has an article forthcoming in the Florida Law Review (on ssrn here) in which she argues that felon disenfranchisement laws "reflect a misguided perception" of how a criminally detained or incarcerated individual might vote. Although not limited to the partisan question of whether this population might vote a Republican or Democratic ticket, Nelson's analysis is worth a read. Have criminal disenfranchisement schemes persisted for so long in the U.S. because of a presumption of how members of this population might vote if given the opportunity? (Nelson suggests that the answer is yes.). I'd love to hear your thoughts!

Who Will Be Voting For Willard Romney?

I took at look at Mitt Romney's 1040 today and while I didn't glean anything surprising about his income or taxes, I did discover one thing:  his first name is Willard.  I'm sure many readers already knew this, but I admit that I didn't.   This made me wonder whether he'll be listed as Willard Mitt Romney on some state ballots.  I recall back in 1992, Bill Clinton had to make peace with being William Jefferson Clinton in selected states,  despite his preference for being listed by his popular name Bill.  And I wouldn't be surprised if James Earl Carter - who ran as Jimmy - had a similar challenge in states unwilling to list him under his widely recognized nickname.

Presumably, most Mitt-o-philes will recognize Willard as their man.  Bill and Jimmy seemed to survive the confusion (at least three out of four times).  And Willard has the added benefit of having his more familiar middle name on the ballot.  

I'm still not  sure why he avoids using the name he shares with hotel founder John Willard Marriott -  after whom he was named.   At least he wasn't named after this Willard.

A Fresh Volley In The PA Voter ID Battle: College And Nursing Homes Issue ID's

As I've previously noted, PA voter ID laws have the potential to disenfranchise a ton of voters - with a massive skew toward people of color.  For now, implementation of the law is in doubt: the State Supreme Court bounced it back to the trial court to see if the state can prove that there will be "no voter disenfranchisement" arising from the law.  Good luck on that.

But just in case, several counties are taking an alternative approach to prevent widespread disenfranchisement.  The law permits a person to vote if she has an ID issued by an accredited Pennsylvania public or private institution of higher learning or one issued by a Pennsylvania care facility.  So officials in a couple of counties have announced that county-run nursing homes and colleges will begin issuing ID's to people who need them - and not simply their students or residents. 

State officials aren't happy - but they also seem to recognize that nothing in the law prevents this novel solution.  And they really have nothing to complain about since there is no reason to think that this end-around won't be fully effective at preventing fraud.  That is, if there is any to prevent.

Voting rights and discrimination in Texas legislative districts

With election season in full swing and many states running tight races, voting districts are primed to be a key factor in determining control of power positions.  Texas is already in the crossfire as a unanimous court rejected the lines drawn by the Republican-controlled legislature as discriminatory towards Latino/Hispanic and Black/African-American citizens and found the plan in violation of the Voting Rights Act.   The ruling is unlikely to effect the upcoming elections: according to the Huffington Post's roundup, "voters in Texas this November will use interim political maps drawn last year by a different three-judge panel in San Antonio." 2014, however, is a different story with a heated fight likely ahead and possible appeal to the Supreme Court.

Apart from the ruling itself, the path to the redistricting is itself interesting.  Because of the state's history of discrimination, the Voting Rights Act requires Texas to get approval from the Department of Justice before making changes to its districts.  But state attorneys took a different route, bypassing the Justice Department and going before a federal three-judge panel to get clearance.  Would following the normal procedure really have been worse? Did Texas' attorneys make the 'right' risk/reward calculation?

The Los Angeles Times coverage is here, and the Huffington Post weighs in over here. 

No ID? The Marginal Cost Of Voting In Pennsylvania

In my recent post about the new PA voter ID law, I noted that a very, very significant number of registered voters - up to 18% of all registered voters in Philadelphia (home to half of the state's African-American population) - may not currently possess an identification card that will allow them to vote in November. Supporters of these laws argue that requiring people to get an ID is a small price to pay in order to prevent voter fraud.  It seems worth figuring out what the actual supplemental cost of voting is for those who currently lack required ID.

I therefore present may totally back-of-the-envelope calculation of the poll-tax assessed by PA's voter ID law.  I use the working assumption that time is worth 7.25/hour.  This is a fiction if the preparation time does not actually displace paid labor, but does allow us to monetize the cost of voting to be allocated to ID acquisition.  I assume that photocopies cost .15 per page and that all mailings can be done for .45 first class postage.  I also assume that this is all occuring in Philadelphia County, where there is public transportation to help you get to one of the five DMV locations in the county.  In other counties, a person without a driver may have to spend even more to get cab service.  Of course, some people will be able to get a ride - but given gas prices (and the cost of parking in cities), it seems unlikely that the effective cost of such travel will be less than the SEPTA public transit fare of $2 each way.   More elaborate details on my calculations appear at the bottom of the post.  And yes: I recognize that some people miss work, school or other activities in order to vote.  I assume, however, that this cost is borne by all voters.

1.  Grab your Social Security card.  Hopefully you have it in hand, if you don't - if, for example, you're retired or you just lost it - you'll have to order one.  

Cost of Acquiring Social Security Card.  $8.00

2. Grab your birth certificate with raised stamp, or certificate of citizenship or naturalization.  If you don't have one in hand, you'll need to order one and I assume that the average person would be ordering a birth certificate from the Commonwealth of Pennsylvania.

Cost of Acquiring a birth certificate in PA.  $19.00

3.  Grab two proofs residency like lease agreements, utility bills, W-2 forms, and the like.  I will assume that you have some version of this around the house to take with you to the DMV.

4. Head to the DMV!  Since you can't drive, you'll probably be taking public transit - $4 roundtrip.  A reasonable guess is that it will take you 90 minutes roundtrip to get to the nearest facility.  And given normal waits, it seems equally fair to assume the visit itself will take 60 minutes.  2.5 hours time is worth $18.12.  But good news - they'll waive the ID fee if you sign an affidavit that you need it to vote! Total cost of the DMV trip: $22.12.

Thus, if you have all your documents ready and at hand, the total cost of voting is $22.12.  But if you don't have all your documents right now, that's probably because you don't need them right now - and thus the cost of obtaining new ones is entirely caused by the voter ID law.  

If you need to acquire a Social Security Card, total cost of voting is $30.12.  If you need to get a birth certificate, total cost of voting is $40.12.  And if you need both a Social Security card and a birth certificate, total cost of voting is $48.12.  

What to make of this?  For those concerned about fraud, a $48 fee may seem like a minimal price-tag.   But since this cost is allocated only to a sub-population, I propose that the state compensate those who need an ID by this amount.  Why should this sub-population be required to fully subsidize the state's anti-fraud efforts?  If all citizens gain from requiring ID's, a reasonable person might conclude that voters who bear the brunt of this effort should receive both their PA issued photo-ID and a compensation check in the mail.  If legislators supporter voter ID requirements were willing to step up to the plate with a $40 reimbursement to those forced to acquire proper ID, I'd be far less cynical about their motives.

PA Voter ID Law May Disenfranchise 9% Of Registered Voters. Massive Racial Impact?

The Philadelphia Inquirer's headline understates the concerns here:

Voter ID law may hit more in Pa. than originally estimated

It appears that 9.2% of registered voters in Pennsylvania do not currently have a PA driver's license or state-issued identification card.  A few may have passports, student ID's with expiration dates, military ID's or government issued employee identification cards.  But as the story points out, most voters don't have these approved alternatives. 

Supporters of the law will argue that some of these people are dead and some moved out of state.  I'm sure that's true.  But my guess is that a similar perecentage of new registrants will also lack these ID cards - so there will be freshly registered (and disenfranchised) voters created every day between now and the final date for November registration.

But it gets worse - particularly for a Democratic president.  18% of registered voters in Philadelphia don't have a Pennsylvania issued identification card.  Not a huge surprise: many people in a big city, with comprehensive public transit, don't drive. 

Of course, big cities have different demographics than the rest of the state.  And nobody is going to be surprised if this law has a wildly disparate racial impact, disenfranchising Blacks at astronomically higher rates.  Roughly half of Philadelphia's population is African-American.  And almost half of all African-Americans in Pennsylvania live in Phillly.  So although this new report doesn't tell us much about the demographics of that disenfranchised 9.2 percent, we can all make a rough guess.

Nobody is suprised by this result, I 'm sure, least of all the Republicans who pushed the legislation through Harrisburg.  One 2006 one study estimated that 19% of African-Americans lived in homes with no car...compared to 4.6% of whites.  So if you're trying to clear the decks for a Republican candidate, voter ID laws are an excellent strategy.

 

Ladies of Liberty: DiFranco & DeMent

Ani DiFranco and Iris DeMent each have lyrics that expand far beyond the relatively narrow scope that politics plays in the life of a human being. They also have some inspirational and poignant songs that add to our political discourse.  Ani and Iris provide an opportunity to talk cyberlaw, ponder the move to a national popular vote and share some of their music.

“My country ‘tis of thee, To take shots at each other on primetime tv” – Ani, “‘Tis of Thee”

With election season in full swing, the flood of negative and misleading political ads (from all sides and SuperPACs) will soon drowned the airwaves . . . at least in swing states like Florida. 

When I teach Cyberlaw, I include Porter v. Bowen, a Ninth Circuit case holding that vote-swapping is protected by the First Amendment and not a violation of criminal or electoral codes.  Citizens formed a website whereby voters in safe states could swap their votes with voters in swing states. The purpose was to have the 2000 Green Party candidate, Ralph Nader, receive five percent of the national vote so that the Green Party would qualify for federal funds in future elections, without hurting Gore’s chances of winning the Electoral College. 

For example, a voter in Ohio that wanted to vote for Nader would vote for Gore, while swapping her vote with voter in say, Alabama (a safe state for Bush) or Massachusetts (a safe state for Gore), who would vote for Nader.  Shortly after this website began, at least one other website was created that allowed voters to swap votes for any third-party candidates with either Bush or Gore, thus expanding vote-swapping beyond Nader-Gore swaps.

I teach this case in Cyberlaw because, in addition to discussing how technological changes raise new legal questions, it also allows for a discussion on whether the Electoral College is something that remains desirable in our self-governing society.  After all, if there was no Electoral College, there would be no need to engage in vote-swapping.  While it’s hard not to forget that Gore won the national popular vote in 2000, it’s also worth noting that Obama’s “landslide” victory in 2008 was not so large when considering the national popular vote margin.  Obama won 67.8 % of the Electoral College (365 to 173), but only 53% of the national popular vote.  Does technology provide a reason to shift to a national popular vote?

Perhaps technological developments make a national popular vote system more practical than in the late eighteenth century. Whether one is in Wyoming or Washington D.C., real-time information is available through broadband, cable and radio. Is it not better for candidates to have an incentive to campaign in all fifty states by making every citizen's vote count in the final tally?  Is it likely that voters on the losing end in a safe state might be more motivated to actually vote if they know it’s not in vain? 

As I’m sure some here know, there is an organized movement for instituting a national popular vote.  The plan involves a legislative pact among states to provide all the electoral votes of a state to the national popular vote winner.  By December 2010, the District of Columbia and five states (Illinois, Hawaii, Maryland, New Jersey and Washington) have enacted legislation to implement the plan.  Together, they make-up one quarter of the electoral votes needed to deliver an Electoral College victory. The plan will only be implemented once enough states have enacted legislation to win the Electoral College.  The Brennan Center for Justice is listed among the endorsers of this national popular vote plan.

Here’s Ani performing a version of her 1999 song, ‘Tis of Thee, at Ralph Nader’s October 2000 Madison Square Garden campaign event.  In the March 2012 issue of Relix magazine, Ani shared some of her thoughts on Obama’s performance thus far. While she may be critical of the lack of tangible changes, she makes an important, if obvious, point about how a self-governing society functions:  “If he really felt, in this arena of dragons and monsters, that he had the force of the people behind him, he’d more empowered to act in the way that we want him to act.  But we as people kicked back and said, ‘OK, fix it.’”  

Turning to Iris DeMent, her 1996 song, Wasteland of the Free is one of my favorites.  Sadly, its message has only grown more descriptive of our society as the years roll on.

Finally, in preparing this post, I stumbled across an organization called, Ladies of Liberty Alliance. The self-described mission of this organization is to “address the shortage of female leaders in the fight for liberty.”  One has to think the organization’s founders have a sense of humor and musical acumen based on their clever acronym (LOLA) and domain name, www.iamlola.org. The “Chairman” (LOLA’s word), Angela Keaton, holds a J.D. from the University of Florida.  While I have not explored the specifics of LOLA’s agenda, it certainly seems like a group of engaged citizens that will not leave any president alone in the arena of dragons and monsters.

p.s. The only endorsements in this post are for the respective music of Ani DiFranco & Iris DeMent.