Since election night people have been preoccupied with what the post-election polling reveals about America's electorate, particularly its shifting values and priorities and what this will mean for future elections. A recurring theme among commentators is that growing diversity played an important role for Democratic wins in the Presidential and Congressional races. According to a report by the Pew Research Center, Obama received the support of African Americans, Latinos, and Asian Americans by a wide margin. Women also played a prominent role in this election: they not only supported Obama by a wide margin, but were also instrumental in Democratic wins in the House and Senate. And a Gallup survey showed that voters who identify as gay, lesbian, or bisexual overwhelmingly supported President Obama.
Results tagged “Blogging the Ballot”
November 20, 2012
November 7, 2012
Barack Obama's election -- and now re-election -- signal America's willingness to select as its leader a member of a historically reviled minority group. The group I refer to, of course, is constitutional law professors.
The President's familiarity with America's constitutional history crept into his Tuesday night victory speech, but perhaps at a frequency that only dogs or fellow con law professors could hear. Consciously or unconsciously, he echoed sentiments from a case studied in most First Amendment courses, Terminiello v. City of Chicago (1949). Terminiello was one of a series of important decisions involving civil rights and freedom of speech that arose from Chicago's tumultuous racial and ethnic tensions of the mid-20th century. As a proud Chicagoan, President Obama would certainly be familiar with this line of cases, which also includes Hansberry v. Lee (1940) (segregated housing), Beauharnais v. Illinois (1952) (hate speech), Gregory v. Chicago (1969) (civil rights demonstration), Organization for a Better Austin v. Keefe (1971) (protests relating to segregated housing), and Collin v. Smith (1978) (neo-Nazi parade).
In Terminiello, an angry crowd demonstrated outside an auditorium where a demagogue delivered a reactionary and anti-Semitic political speech. To avoid a riot, police arrested the speaker for disorderly conduct. At trial, the jury was instructed that a defendant's behavior "may constitute a breach of the peace if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, or if it molests the inhabitants in the enjoyment of peace and quiet by arousing alarm."
The Supreme Court reversed the conviction. In its most widely-quoted passage, Justice William O. Douglas's majority opinion relied on a bit of verbal jujitsu to declare that the vices identified in the jury instructions were actually virtues: "[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."
Justice Douglas's opinion in Terminiello echoed in this passage of the President's victory speech in Chicago:
Democracy in a nation of 300 million can be noisy and messy and complicated. We have our own opinions. Each of us has deeply held beliefs. And when we go through tough times, when we make big decisions as a country, it necessarily stirs passions, stirs up controversy. That won't change after tonight, and it shouldn't. These arguments we have are a mark of our liberty.
November 5, 2012
In a recent New York Times "Campaign Stops" piece, I mentioned concerns about citizens undermining the integrity of the election by attempting to impose and enforce the "law of their gut" rather than the law on the books.
One prominent example concerns the concept of domicile. Domicile shows up in different ways in the election process, but the most common misunderstanding has to do with where people are eligible to vote. Recent reports reveal that voters have been challenged in several states based on claims that they aren't eligible to vote where they're registered. These challenges often reflect a common gut instinct -- but more seldom reflect the law.
In several states, organizations "empowered" by a national organization called True the Vote have announced research finding registrations subject to challenge based on their addresses. This isn't the first time that people have been challenged based on unwarranted assumptions about their addresses -- voter caging schemes, for example, are a version of this.
The True the Vote approach apparently starts by combing large databases, flagging (for example) addresses where more than 6 people are registered. Other flags may include people registered at colleges.
One problem with quasi-automated challenges like this is the quality of the data: "vacant" lots are sometimes not actually vacant.
But even if the data are accurate, they don't necessarily show ineligibility. Let's start with the street addresses listing six or more individuals. Most households are smaller than this, yes. But 1.7 million households -- disproportionately African-American and even more disproportionately Hispanic -- have seven members or more. And that doesn't include more than 36 million people living in apartment buildings, with 5 or more units at the same street address, or the 8 million people living in "group quarters" like dorms or military barracks. Some Americans live with their 2.5 children in single-family homes; many Americans don't.
That's just the start of the disconnect. It's possible for more people to be validly registered at a street address than actually live there at any given moment. That is, it may be entirely lawful for seven people to be registered to vote at an address that sleeps four.
If that seems crazy, that's because the standard for voter registration isn't always intuitive. Like most election laws, the legal standard differs from state to state. In some states, you're properly registered to vote wherever you consider "home" at the moment. In other states, you should be registered at the last place you lived that you didn't consider temporary. Other states' rules are different still.
The proper legal standard usually turns on intent, which makes it particularly tricky to assess proper registration with software. Let's say that I move to 123 Main St., intending to settle in at my new address indefinitely. I may leave someday, but there's no date I have in mind, and until then, I've left my old address behind. In many states, 123 Main is now my domicile: where I can legally register to vote.
Now let's say that I leave for some reason. It may be the same day that I move in, without unpacking a single box. I may be called up for military duty, or called away for a business trip, or simply travelling to renaissance festivals across the country. As long as 123 Main St. was a valid place for me to register when I arrived, if I don't establish domicile somewhere else, 123 Main St. would still be the legal place for me to vote.
That is, 123 Main would be my lawful registration address even if I were only present there for a few hours. 123 Main would be lawful whether it was a single-family house, an apartment, a college dorm, or a homeless shelter. It would be lawful even if someone else were now living in my former room at 123 Main -- yielding more voters registered than people physically present. And it would be lawful even if the building had been knocked down while I've been away -- leaving a vacant lot.
States' legal definitions of domicile can lead to situations that may seem unusual to a casual onlooker. It's why college students may be able to claim valid domicile for voting purposes either at their campus address or a prior address, depending on the states in question and the students' intent when they get to school. It's why members of Congress may be legally registered to vote "back home," even when "home" was sold decades ago. It's why it's not a stretch to believe that Mitt Romney was lawfully registered to vote for a year at his son's house, even with multiple other permanent homes in his name.
It's even one of the reasons why there may lawfully be more registered voters in a county than the number of eligible citizens counted there by the Census. Some loudly decry such "over-registered" counties as breeding grounds for fraud. As a gut measure, it has appeal. But -- for example -- military personnel who are overseas on Census Day are registered at their domicile, but not counted there by the Census. The gut measure ignores valid reasons why one list might not match up with the other, including those serving overseas. The law serves us better.
To be sure, people are sometimes listed on voter rolls where they do not belong, often as the aftermath of a real residential move. Portable registration systems that actually follow people when they move, rather than relying on new registrations on the front end and purges on the back end, would go a long way toward solving the problem. At the moment, regular list maintenance, with notice to the voter and safeguards for error, does a moderately good job at cleaning the rolls over time, without unduly jeopardizing the rights of legitimate voters who have quirky residential situations.
By contrast, last-minute challenges founded on data screens, without personal knowledge of a voter's intent, only serve to capture situations that seem unusual -- without any realistic ability to know whether that unusual is also unlawful. In a diverse country, we should all be wary of efforts that sloppily conflate the two.
Justin Levitt is an associate professor of law at Loyola Law School, Los Angeles, where he teaches Law of the Political Process. He maintains the website and blog "All About Redistricting" at redistricting.lls.edu.
Tags: Blogging the Ballot, Election Law
November 5, 2012
In the immediate aftermath of "Superstorm" Sandy, a number of articles appeared in the mainstream press with pundits asking how Sandy might affect the election. Aside from practical questions about the logistics of early voting, most pundits focused on how the candidates' responses could affect their respective public images. "Who would 'look like' a leader?" they asked. Yet the presidential election is much more important than just another issue of People magazine, a fact obscured by the excessive focus on image and how it affects the horse race.
Sandy is just another example of a changing trend in extreme weather events. Last summer, excessive drought damaged crops and stranded boats on the Mississippi; each summer we are setting new heat records and Arctic ice falls to historic lows. Human-caused climate change is altering the stable environment upon which we have relied in choosing where to live and deciding how to build our homes, how to lay out our infrastructure and how to develop our economy. This should be an election issue of the first magnitude.
Apparently under sway of the woefully mistaken notion that environmental protection and economic health are competing goals, the national Republican Party has decided that it is in its interest to take an extreme anti-science position on climate change. In fact, as Sandy should be making clear, our economic health (not to mention our personal safety) is highly dependent on stable climactic conditions. The economy is not thriving when the nation's airports are shut down, Lower Manhattan is under water, and millions of people are without electricity.
November 1, 2012
Every year, late October brings pumpkin pie and horror movies and reports of deceased voters. The reports are, inevitably, spooky, with a hint of the comic macabre. And they are often followed by proposals to slash the voter rolls, with the equivalent of an electoral chainsaw.
But now that the cobwebs have been brushed away in the clearer light of a November morning, most of the specters have vanished. Turns out that the undead hordes are too busy terrorizing your Tivos to be stealing your elections.
Most allegations of dead voters rely on attempts to match large computerized databases of dead people to large computerized voter rolls. And they fall prey to three basic fallacies.
First, bad data. Sometimes people listed as dead are not really dead. Investigative reporters at Scripps-Howard have discovered that the Social Security's Death Master Index, one of the most-used registries in the country, falsely announces the deaths of nearly 1,200 living Americans per month. Think of these legitimate voters as buried alive.
And sometimes, people listed as voting did not really vote. Election records are imperfect. In the press of a busy day at the polls, people sometimes sign the wrong line of a pollbook. And in the press of a busy canvass after the election, officials sometimes hit errant keystrokes, recording a vote that a deceased individual did not actually cast. Think of these legitimate souls resting peacefully, without braving the lines at the polls.
Tags: Blogging the Ballot, Election Law
October 30, 2012
I have previously written here about the pitfalls of the initiative process. This mechanism of direct democracy, designed to guard against the power special interests held over our elected officials, is now similarly controlled by special interests. Money is the driving factor behind which proposals qualify for the ballot.
Large sums are spent not only to pay signature gatherers to get proposals placed on the ballot but also to support or oppose those measures once they qualify for the ballot. One need only to open the mailbox or certain websites, or turn on the television or radio, to see the enormous amounts of money being spent to attempt to sway voters on these eleven initiatives.
October 30, 2012
On November 6, voters in Maine, Maryland, and Washington will decide whether to allow same-sex couples to marry. In 2010, Maine voters repealed the marriage equality law that lawmakers had passed and the governor had signed. This time Mainers will be the first in the country to affirmatively vote on same-sex marriage. In Maryland and Washington, voters are being asked whether to approve or reject the marriage equality laws state lawmakers passed earlier this year. In all three states, recent polls suggest that marriage equality may win.
Of course, this would mark a game-changing moment in the political battle for same-sex marriage. But it would also significantly impact the legal battle raging in the courts. Currently, the U.S. Supreme Court is considering whether to weigh in on both the federal Defense of Marriage Act (DOMA) and California's Proposition 8, the state constitutional ban on same-sex marriage. Advocates at the leading LGBT legal organizations warned against the federal challenge to Proposition 8, worried about its uncertain fate at the Court. Throughout the litigation, they have worked - along with the City and County of San Francisco and prominent constitutional law professors - to frame the case as one about the unique situation in California. The Ninth Circuit agreed, finding that California, which allowed same-sex couples to marry before taking that right away and which provides a comprehensive domestic partnership system with the state-law rights and benefits of marriage for same-sex couples, did not have a legitimate interest in restricting marriage. Under the Ninth Circuit's holding, determinations regarding the constitutionality of other states' marriage bans require additional litigation. LGBT movement advocates, therefore, are hoping the Justices will pass on the invitation to review the Ninth Circuit's decision.
October 29, 2012
My primary research area, disability law, typically doesn't garner a lot of headlines or attention in presidential elections. There was a National Forum on Disability Issues in September of 2012 where both candidates were invited, but neither showed up (President Obama was represented by Ted Kennedy, Jr. and Governor Romney was represented by Rep. Cathy McMorris Rodgers (R-WA)). In a way this is understandable -- disability is a less contentious civil rights issue than some other areas. It may just be a perception that there is less to fight about (and a good fight is what really draws media attention).
But there are certainly many important issues relevant to people with disabilities that are at stake in this election. A major one is health care. The provision of the Affordable Care Act that stops insurance companies from denying coverage based on preexisting conditions can help people with disabilities move in and out of the labor force without losing their health insurance. This approach, I have argued elsewhere, is part of the explanation of the higher rate of veterans with disabilities, who have access to the VA for some healthcare services. Governor Romney seemed to suggest that his healthcare proposals would also cover people with preexisting conditions, but most analyses I have seen refute this, at least to the extent that it would help people with long term disabilities be more fluid in and out of jobs. Another issue of importance to the disability community is the ratification of the United Nations Convention on the Rights of Persons with Disabilities. President Obama signed the treaty and has urged ratification; as far as I could find, Governor Romney has taken no public position on the issue.
But in this blog post, I'd like to focus on an issue that comes before both of these -- voting for people with disabilities. Given the recent focus on the administration of elections (mostly, as my former colleague Rick Hasen has profiled, based on hazy and unsubstantiated claims of voter fraud), this is timely.
October 25, 2012
By Professor Kathleen Kim, Kevin Kish and Cindy Liou
This op-ed originally appeared in Pacific Standard.
This November, voters will consider Proposition 35, also known as the "CASE Act" for "Californians Against Sexual Exploitation." The name of the law is designed to draw automatic support: Who, after all, would be in favor of sexual exploitation? The initiative's supporters, who include concerned citizens and former Facebook executive, Chris Kelly, are committed to increasing fines and prison sentences for certain forms of sex trafficking, and their intentions are beyond reproach. Unfortunately, what the CASE Act actually does is to tinker inexpertly with California's comprehensive laws combating all forms of human trafficking, laws that have served as a model for states across the nation. For over a decade, we, the authors have collectively assisted hundreds of trafficking survivors assert their rights in criminal, civil and immigration actions. Our experience informs us that by taking a predominantly criminal enforcement approach and conflating human trafficking with sexual exploitation, the CASE Act, however unwittingly, will change our current anti-trafficking laws in ways that disempower the actual survivors of human trafficking.
When the 13th Amendment to the United States Constitution was adopted in 1865, our nation made a simple promise of commanding power: "Neither slavery nor involuntary servitude... shall exist within the United States, or any place subject to their jurisdiction." That promise is still being tested. Every year, the State Department estimates that tens of thousands of men, women and children are trafficked to this country - and between the states - and put to work against their will. California is a major point of entry and a destination for traffickers and their victims, who are forced to work not only in the sex industry, but also in garment factories, agricultural fields, construction sites, hotels and restaurants, and as domestic servants in our neighbors' homes.
Some contemporary trafficking cases involve conditions much like the chattel slavery abolished by the 13th Amendment, in which human beings were bought and sold as property. Still more cases involve psychological coercion, deception or fraud: depriving people of liberty by convincing them that harm could come to them or their loved ones if they stop working.
In 2005, a unique alliance of California legislators and advocates came together to confront this injustice and extend the promise of the 13th Amendment to the victims of modern forms of unfree labor. Social workers, lawyers and law enforcement officials - all of whom worked directly with human trafficking survivors - authored the California Trafficking Victims Protection Act, California's comprehensive anti-human trafficking law. The law criminalized human trafficking, but that was not its only aim: As important, it advanced the rights of human trafficking survivors through a victim-centered, human-rights framework by providing them with access to social services, a path to immigration relief under federal law, mandatory restitution and a robust civil cause of action. Prop 35 will roll back these protections.
October 23, 2012
Every year, my constitutional law students study Personnel Administrator of Massachusetts v. Feeney (1979), which involved a Massachusetts program giving veterans an employment preference when applying for state jobs. Since at that time veterans were overwhelmingly male, the law effectively locked females out of state jobs. The U.S. Supreme Court upheld the program, explaining that the state would not be discriminating by enacting a law that disporportionately harmed women -- unless the state chose that law "because of," and not merely "in spite of" its disparate impact.
I do not know whether Massachusetts still has a veterans preference, but according to presidential candidate Mitt Romney, he did his part to find state employment for women while he was governor of that state. As he told the story during the Oct. 16 debate:
As I was serving as governor of my state ... I had the chance to pull together a cabinet and all the applicants seemed to be men.
And I went to my staff, and I said, “How come all the people for these jobs are all men?” They said, “Well, these are the people that have the qualifications.” And I said, “Well, gosh, can’t we find some women that are also qualified?”
And we took a concerted effort to go out and find women who had backgrounds that could be qualified to become members of our cabinet.
I went to a number of women’s groups and said, “Can you help us find folks,” and they brought us whole binders full of women.
I was proud of the fact that after I staffed my Cabinet and my senior staff, that the University of New York in Albany did a survey of all 50 states, and concluded that mine had more women in senior leadership positions than any other state in America.
Now one of the reasons I was able to get so many good women to be part of that team was because of our recruiting effort. But number two, because I recognized that if you’re going to have women in the workforce that sometimes you need to be more flexible. My chief of staff, for instance, had two kids that were still in school. She said, I can’t be here until 7 or 8 o’clock at night. I need to be able to get home at 5 o’clock so I can be there for making dinner for my kids and being with them when they get home from school. So we said fine. Let’s have a flexible schedule so you can have hours that work for you.
According to the Boston Phoenix, women's groups assembled the resumes of qualified women in advance of the election, so Governor Romney may not have instigated the idea as he described. But as an article on Slate points out, Romney at least took the trouble to look through the binders, and hired quite a few women from those resumes.
There's a name for what Governor Romney described in the debate: affirmative action. An all-male list of finalists may signal something faulty about your search. Absence of women on the list of qualified applicants may tell you more about your assumptions about job qualifications than tells you about the capabilities of women. The obligation to reconsider institutional arrangements goes beyond the recruitment phase. The nature of workplace may need to change so that nontraditional workers can succeed once they are hired. Most of my students think this sounds pretty good. And a presidential nominee would not be boasting about his history of affirmative action it unless he thought it would generate mainstream support.
October 22, 2012
With election season in full swing and the final presidential debate tonight, I have asked several colleagues to write blog posts on election-related issues within their respective areas of expertise. Through this series, "Blogging the Ballot," we will provide legal commentary that tracks the political issues. We will be posting every few days until the election on a broad range of issues, including election administration, human trafficking, foreign policy and free speech. And depending on what happens Nov. 6, we will continue to post relevant opinions. So please keep checking back as we continue Blogging the Ballot!
--Professor Michael Waterstone, Associate Dean for Research and Academic Centers
Tags: Blogging the Ballot, Election Law
October 22, 2012
Legal fights over new restrictions on voters are all over the news these days, with fights over "voter ID" rules often front and center. The fight is not over whether voters should show that they are who they say they are -- every state has some method for that. Instead, the current fights are over a set of restrictive rules that newly limit the ways voters may offer that proof. In 2011 or 2012, several states passed laws prohibiting eligible voters from casting valid ballots at the polling place if they do not have particular government-issued photo identification cards; most have been blocked, at least temporarily, by the courts, and will not be in effect for the coming election.
I've been fighting the most restrictive laws since 2005, as unnecessary regulations whose "cure" is worse many times worse than the "disease" of voter fraud they ostensibly confront. Most eligible citizens have the right kind of government-issued photo ID. But reliable statistics show that many of us -- between 1.2% and 16%, depending on the particular numerator and denominator -- don't. And voting isn't just a right for most of us.