CIVIL RIGHTS POLICIES, ANALYSIS, AND RESOURCES
The Civil Rights Domain tracks and reports on policies that deal with voter rights, police brutality, free speech, the right to privacy, and other human rights enshrined in our constitution. This domain tracks policies emanating from the White House, the Justice Department, Department of Homeland Security, the Department of Housing and Urban Development, and state legislatures. Our Principal Analyst is Rod Maggay who can be reached at firstname.lastname@example.org.
Latest Civil Rights Posts
Brief #141—Civil Rights
By Rod Maggay
On October 1, 2019 USRESIST NEWS reported that Judge Allison Burroughs of the United States District Court for the District of Massachusetts issued a ruling in the case Students for Fair Admissions v. Harvard. The Students for Fair Admissions (SFFA) filed the case in November 2014.
Brief #139—Civil Rights
By Rod Maggay
On October 13, 2020 the United States Supreme Court issued an order that stayed an order from the 9th U.S. Circuit Court of Appeals that upheld the suspension of the September 30, 2020 deadline for finishing the 2020 census count. And, on October 16, 2020 the Supreme Court announced that it had set for argument on November 30, 2020 to consider whether the census can exclude undocumented immigrants from the overall tally of persons.
USRESIST NEWS has been following the important legal case Students for Fair Admissions v. Harvard for the past year. In this Brief we recap our earlier coverage and provide an update on an important ruling in the case that was made this week.
Policy Summary: On October 1, 2019 USRESIST NEWS reported that Judge Allison Burroughs of the United States District Court for the District of Massachusetts issued a ruling in the case Students for Fair Admissions v. Harvard. The Students for Fair Admissions (SFFA) filed the case in November 2014. The group had brought previous cases aimed at challenging affirmative action policies at colleges and universities around the country. In the Harvard case, the group alleged that Harvard intentionally discriminated against Asian – American applicants to the school in violation of Title VI of the Civil Rights Act of 1964. That title prohibits discrimination by programs and activities that receive federal funding. After a three week trial conducted at the end of 2018, Judge Burroughs ruled against all of SFFA’s counts and ruled that  Harvard’s admissions program was narrowly tailored to serve a compelling government interest,  that Harvard did not engage in racial balancing,  did not use race as a plus factor,  that other race – neutral alternatives were not available and  that Harvard did not intentionally discriminate against Asian – American applicants. LEARN MORE
Analysis: After Judge Burrough’s ruling USRESIST NEWS commented that Students for Fair Admissions Group and its director Edward Blum have wanted nothing but to discredit and dismantle affirmative – action programs around the country. In her ruling, Judge Burroughs was very careful in acknowledging that affirmative – action programs are “not perfect” and not meant to be permanent and showed that the admissions program at Harvard was constructed in a manner that was constitutionally sufficient. The “strict scrutiny” analysis applied to the program demonstrated that Harvard’s admissions program did enough to serve the interests of building a diverse student body and did not do more than was necessary to achieve that goal because race was used in a holistic fashion together with other non – race factors. And in all the remaining counts, she showed how race was never used as a deciding factor such as part of a fixed quota system and that the use of race as a “plus” factor still permitted the admissions committee enough flexibility to consider all other elements of the applicant’s application. In short, race, when used was constitutionally permissible according to the limits set by prior Supreme Court cases.
What also made this interesting was how selective the plaintiffs were in their use of statistical data while ignoring other facts that they found inconvenient to their arguments. As an example, SFFA tried to point to a Harvard recruitment program that sent recruitment letters based on PSAT scores. Those letters showed that Asian – American students received those unsolicited letters if they had a 1370 score while white males would receive those letters if they only received a 1310 on the PSAT. However, Harvard shot back that the letters are an invitation to apply to Harvard. Once a student enters the applicant pool different standards are used when reviewing an applicant’s application. And in another example, Harvard’s applicant rating system exposed SFFA due to the fact that their analysis omitted athletes and children of alumni. This led to accusations of SFFA trying to manipulate their statistics to fit their discrimination narrative. Again, Harvard pushed back and said that an entire review of the applicant pool was necessary and, more importantly, that their forthright statistical analysis showed that being Asian – American did not impact an applicant’s likelihood of getting accepted to the school.
Even though Judge Burroughs clearly demonstrated how this case was permissible within the limits of existing case law, the case will in all likelihood be appealed where it will be hotly debated more on a policy level than a legal one. LEARN MORE, LEARN MORE, LEARN MORE
Update: On November 12, 2020 Circuit Judge Sandra Lynch of the United States Court of Appeals for the First Circuit issued the opinion in the case Students for Fair Admissions, Inc. v. Harvard. The case was being heard on appeal after the trial case in federal district court ruled against SFFA’s claims that Harvard’s admissions policies discriminated against Asian – American applicants. In the opinion, Judge Lynch declared definitively that “under governing Supreme Court law Harvard’s race conscious admissions program does not violate Title VI.” The case was unanimous with a 2 – 0 vote in favor of Harvard. (The appeal was heard by a panel of three circuit judges but Judge Torruella passed away prior to the issuance of the opinion in the appeal).
The opinion is notable because of Judge Lynch’s focus and emphasis on the statistics used in the trial court. During the trial, SFFA was exposed for profferring statistical evidence that was misconstrued as viewed by SFFA, which led to accusations that SFFA was manipulating the evidence. SFFA’s efforts at omitting certain groups of students (athletes, children of alumni) and confusing marketing efforts with application review standards were not convincing at the trial level and not convincing again on the arguments at the appeal.
While SFFA’s evidence has been exposed to be shaky at a trial and appeal level thus far, it is a not very well kept secret that SFFA and its director Ed Blum are aiming for their day in the United States Supreme Court. By bringing the case through the appeals process they are simply following every step in the process in order to reach the high court where they hope that the case will end in a favorable decision for them. With the makeup of the high court now clear with a conservative majority (6 – 3) SFFA is gambling that the recent addition of conservative justices on the Supreme Court will help issue an opinion that will strike down affirmative action policies nationwide despite the benefits that the programs have brought about in terms of boosting diversity and opportunity for disadvantaged minority students. Due to the long time it takes to get a case before the Supreme Court it is unclear when the case will be heard by the high court, if at all, but it seems certain that this contentious issue has an ending that still has to be decided, whether in the courts as a legal issue or in the legislatures as a policy one. LEARN MORE, LEARN MORE, LEARN MORE
Harvard Admissions Lawsuit – webpage from Harvard about the case.
American Civil Liberties Union (ACLU) – statement from group on case with link to amicus brief filed by the ACLU on in support of Harvard.
This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.
Policy Summary: With the 2020 United States election only days away a number of states have already started the process of voting. Absentee ballots have been filled out and mailed back and early voting periods have seen a large turnout of voters in anticipation of the November 3, 2020 election. With a little more than a week until Election Day a number of recent incidents illustrate the difficulties that some voters are having in casting their ballot.
In some states, the wait in line to vote has been reported to be two, three or four hours. On October 25, 2020 Representative Alexandra Ocasio Cortez (D-NY) reported that she waited two hours in line to vote in her precinct in the Bronx, New York. And the Washington Post reported that lines in New Mexico, Texas, Tennessee and other locales were having wait times that reached two hours causing some voters who didn’t vote to leave and come back the next day to try again.
In Lucas County, Ohio, the Board of Elections has acknowledged that there has been a delay in counting returned absentee ballots because of a shortage of poll workers. Fear of COVID-19 had caused fewer volunteers than in years past but it remains to be seen if this shortage will translate to problems to in – person voting. Other regions have also reported a shortage of poll workers which prompted a number of non – profit groups and projects to try and fill in the void this week.
And finally, a number of voters in the New York area reported receiving harassing robocalls that were intended to intimidate them from voting. The robocalls stated that if the voter returned their ballot that the info would be used to track down old arrest warrants, be given to credit card companies to collect outstanding debts and be used by the CDC to administer mandatory vaccines. The Lawyers Committee for Civil Rights Under Law finally stepped in and filed a temporary restraining order to stop the false robocalls under an old anti-Klan statute. LEARN MORE
Policy Analysis: While there are any number of issues or circumstances that can prevent a voter from casting his or her ballot, these three incidents help to illustrate that many of the problems and barriers are systemic but also that there are a number of good non – profit groups who are willing to do what needs to be done to fix the flaws.
Waiting in line to vote in – person can often cause a person to endure a long period of hours waiting in line but there are options a voter can use to avoid this. A voter does not have to wait to vote on Election Day but can instead utilize early voting periods which can help a voter better manage their time. A voter can also utilize the option of mail ballots which can be dropped off in person, in an officially sanctioned drop box or with the U.S. Postal Service. Waiting in line to vote might seem to be a one time situation to be tolerated because of COVID-19 but the Brennan Center for Justice has been studying the issue of long wait times in line to vote and offers policy suggestions to help manage this issue in the future.
In some areas, the shortage of poll workers is attributed to a rare pandemic that has kept usual election volunteers at home this year. But citizens were alerted to the news of this potential problem and efforts were mobilized by a number of non – profit groups to ensure that polling places had enough volunteers to ensure a safe and fair election. Power the Polls is a first of its kind initiative that was created to try and help recruit 250,000 Americans to sign up to staff a polling booth location. The ability to count and process ballots and staff locations should not run into some of the delays being reported due to the help that is available out there.
And finally, there are a number of right wing groups who are intent on following President Trump’s lead to sow chaos and division at the polls in the coming days. The situation with the recent robocalls in New York, Pennsylvania and Ohio were coordinated by operatives Jacob Wohl of California and Jack Burkman of Virginia. Both men have a history of making statements about their intent to disrupt the 2020 election and harm the chances of many Democratic candidates. While this particular scam was discovered it is very likely that there are many other operations out there that are still trying to intimidate voters from casting their ballots and who may continue to try on Election Day. The Lawyers Committee for Civil Rights Under Law was quick to file a temporary restraining order for this one scam. That might not be the case with other voter suppression tactics which reinforces the call to be vigilant as Election Day nears and to use any and all resources (governmental, non – profit groups) to combat what a voter may likely see out there heading into next week.
Brennan Center for Justice – “Waiting to Vote” report on racial disparities in Election Day experiences.
Power the Polls – non – profit group’s website on their efforts to recruit polling booth workers and volunteers.
This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.
Policy Summary: In 2016 the California Legislature passed Assembly Bill 1921 which expanded on who can return an absentee or mail ballot on another person’s behalf. Previously, the only persons permitted to return another person’s mail ballot were family members residing in the same household as the voter (spouse, children, parents, brother, sister, etc.). With the new law California allowed any person designated by the voter to return the mail ballot. Familial ties were no longer required nor did the person designated by the voter have to reside in the same household. The rationale for the law was to remove further barriers that could have prevented some people from returning their ballot.
Over the last few weeks, the Republican Party in California hatched an idea to collect ballots and deliver them to local election headquarters. In the cities of Fresno and areas around Los Angeles ballot collection boxes were set up at churches and gun shops. The ballot collection boxes set up at these locations by the Republican Party were in violation of state law and prompted a memorandum from California Secretary of State Alex Padilla to provide clarity on the use of unauthorized ballot collection boxes. Republicans countered that their use of ballot collection boxes is perfectly within the law as written by the Democrats in the Legislature. On October 12, 2020, Secretary Padilla filed a cease and desist order with the California Republican Party and local Republican Parties in Fresno, Los Angeles and Orange Counties to stop the use of unauthorized ballot collection boxes. LEARN MORE
Policy Analysis: The issue that triggered this fight in California just weeks from Election Day is known as “ballot harvesting.” It is also known as “ballot collection.” A voter can mail their mail ballot or absentee ballot back to election headquarters or simply drop it in an official ballot collection box set up by the local county. However, the laws from each of the fifty states are not uniform and some states permit another person to return their ballot, some states do not and other states have no laws addressing the issue. Some of the most common restrictions are the number of ballots that can be returned by one person (e.g. Montana limits a person to six ballots returned by him or her on behalf of another voter), a bar on political candidates or their staff from returning another person’s ballot and some technical requirements such as signing an affidavit on voter assistance forms.
The problem with the ballot collection boxes set up in California by the Republican Party, aside from the technical requirements, is that the collection boxes are only targeted at likely Republican voters. The intent of the ballot collection law in California and in a number of other states is to allow the individual voter to select one person to return their ballot. Many of the ballots have sections on the envelope where the designated person will sign their name and attest that the voter has voted. What the Republicans are instead doing is setting up a massive ballot collection effort that will operate outside the safeguards that many of these state ballot collection laws have implemented. If a person known to be a Democrat in the community drops his or her ballot in these unauthorized collection boxes there is no guarantee that the Republican Party will deliver the ballot. Additionally, there is no one signing for the receipt of these ballots which does not give anyone responsibility for the delivery of the mail ballot. And while the use of officially sanctioned ballot drop boxes have protocols for the security of the box and the retrieval of the ballots by known elections officials in the county these receptacles used by Republicans have none of those protocols in place. And it can be difficult to demand and monitor these kinds of protocols if the boxes are placed in a location like a gun shop.
While Republicans claim to merely be playing by the rules set up by California Democrats there is a dark chapter with the Republican Party when it comes to ballot harvesting. Just last year, a Republican political operative in North Carolina was indicted in a ballot harvesting scandal. Leslie Dowless, Jr. ran a ballot collection operation that included sending absentee ballots to voters who never requested one, filling in the ballots personally for multiple voters and signing the voter’s name himself. With this sordid incident happening so recently, it is questionable to allow the Republican Party to engage in another ballot collection effort on a large scale without ensuring that security and retrieval protocols are in place. Secretary Padilla of California has already sent out cease and desist orders to local Republican officials to halt their efforts at using unauthorized ballot collection boxes but it may take a few days to see if Republicans will comply or if they will continue to use this ballot harvesting method to try and sow confusion and try to manipulate an election that is only weeks away. LEARN MORE, LEARN MORE
LawFare – infopage on ballot collection issues and how it has been handled in courts.
National Conference of State Legislatures (NCSL) – chart detailing ballot collection statutes in all fifty states.
This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.
Policy Summary: On October 13, 2020 the United States Supreme Court issued an order that stayed an order from the 9th U.S. Circuit Court of Appeals that upheld the suspension of the September 30, 2020 deadline for finishing the 2020 census count. And, on October 16, 2020 the Supreme Court announced that it had set for argument on November 30, 2020 to consider whether the census can exclude undocumented immigrants from the overall tally of persons.
Article 1, Section 2 of the U.S. Constitution requires that enumeration of all persons shall be done every ten years which will then determine how congressional Representatives will be apportioned among the several States. However, on July 21, 2020 President Donald J. Trump issued a presidential memorandum that directed the Secretary of Commerce to exclude illegal aliens from being counted for the apportionment base following the 2020 census. In response to this directive multiple lawsuits were filed by a number of plaintiffs asking the court, among other things, to not exclude illegal aliens from the overall census tally and the Commerce Department to not transmit any citizenship or immigration status data to the President for apportionment purposes. The multiple lawsuits were consolidated and at trial Judge Lucy Koh of the United States District Court for the Northern District of California sided with the plaintiffs. She issued an injunction that suspended both the September 30 deadline for finishing the census and the December 31 deadline for reporting the final census tally to the President. A number of groups had advocated for an extension of time to continue with the census count as the process had been upended due to the COVID-19 pandemic. The injunction issued by Judge Koh helped to give more time to conduct a more thorough count as the deadline to report the numbers to the President was pushed back to April 2021.
The government’s argument has been more of a technical argument. The finalization and reporting deadlines are set in federal law. So, the government was merely arguing against an extension because it did not want to agree to an extension and then be accused of not following the law. Only Congress can change the deadlines which wasn’t going to happen.The injunction was appealed to the 9th U.S. Circuit Court of Appeals which upheld the injunction and extension of the reporting deadlines. The case was then appealed to the U.S. Supreme Court which issued an order overturning the trial court injunction. This in effect will allow the Commerce Department to end census operations by the September 30th deadline and report the final census tally by the December 31st deadline. LEARN MORE, LEARN MORE, LEARN MORE
Policy Analysis: The latest orders issued by the Supreme Court are just the latest twist in the ongoing saga of the 2020 decenniel census. The importance of this census is staggeringly high as an accurate tally of the American population and where persons are living in the country will be used to determine how many Congressional Representatives a state will have for the next ten years, how many electoral votes it will have in upcoming presidential elections and how federal monies will be divided and doled out to states to use.
The Supreme Court case that issued the order that permitted the government to cease census operations in order to comply with deadlines to finalize and report and send the final tally numbers to the president is an erroneous decision. This is because it does not consider that accuracy and thoroughness is much more important than simply complying with the deadlines to report the data. Census operations were disrupted with the COVID-19 pandemic causing delays and even a temporary suspension of field data collection activities. Due to these unforeseen circumstances the Supreme Court should have upheld the injunction issued by the trial court, allowed the collection of information to continue and emphasized that accuracy and thoroughness of census data is preferable over submitting inaccurate and incomplete data just to meet a deadline.
While the Supreme Court’s decision seemed like it would be the last word on the 2020 Census, the Court stepped into the census fray again a few days later by agreeing to hear arguments on whether President Trump can exclude undocumented immigrants from the final 2020 census tally. President Trump’s plan is to collect two tallies – one for everyone in the U.S. and another that would leave out the number of undocumented immigrants in the U.S. He would then report the tally that excludes undocumented immigrants to Congress for apportionment purposes. This plan is completely flawed as it is settled American law that “persons” are to be counted and not just “citizens.” This has been borne out from the historical record as prior debates in Congress considered counting only “citizens” but those proposals were rejected in favor of counting all “persons” regardless of their citizenship. Additionally, since the usage of “persons” is established in Constitutional Amendments, President Trump’s efforts to try to unilaterally decide on his own to only count citizens is a clear violation of the separation of powers principle. Laws are made by Congress and the President can only execute the laws within the boundaries of those laws. President Trump cannot do what Congress has not authorized under law and for President Trump to decide to not count undocumented immigrants for purposes of the 2020 census is in violation of what Congress clearly intended – that all “persons” and not just “citizens” be counted. As it now heads to the highest court for review the Supreme Court should provide clarity on this issue and rein in President Trump’s actions in what look to be an end – around Congressional powers for political purposes. LEARN MORE, LEARN MORE, LEARN MORE
- American Civil Liberties Union (ACLU) – infopage on 2020 Census.
- Brennan Center for Justice – infopage on group’s litigation efforts regarding the 2020 Census.
This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org
How To Identify And Respond If Illegal Armed Militia Groups Show Up At Polling Booths To Act As “Election Observers
Policy Summary: During the weekend of September 19, 2020, Fairfax County, Virginia was conducting an in – person early voting event when a large group of President Trump supporters arrived on the scene. A number of reports have said that the pro – Trump group was there to try and intimidate voters and create a climate of fear to persuade other voters to not come to the polling booth location.
On September 29, 2020 during the first presidential debate between President Trump and Democratic nominee Joe Biden, President Trump told supporters “to go into the polls and watch carefully.”
And in a number of other incidents, President Trump has praised armed caravans that clashed with protesters in Portland, Oregon, defended 17 year old Kyle Rittenhouse for the murder of two people and praised a number of armed vigilante groups, most recently a group that appeared in Idaho.
The U.S. election for President, congressional members and a number of state officials will be held on November 3, 2020.
Policy Analysis: Due to the frequency of incidents where the President has praised armed vigilante groups and statements that the 2020 election is ripe for fraud and calls for his supporters to “observe” the election, Georgetown University School of Law has compiled a fact sheet on the legality of armed militias in all fifty states and what can be done if a voter is confronted with an “armed observer” at an election site on Election Day.
First, the fact sheets from Georgetown definitively state according to the law in each state that armed militias are illegal in all fifty states. There is no exception despite the fact that certain segments of society believe that groups can collectively arm themselves and offer law enforcement services.
Militias were originally conceived as organized groups called forth by a state or federal authority to defend the state or the country. However, groups that have formed without the authority of a state or federal authority are considered an “unorganized militia” and are expressly prohibited by every state in the Union by their state laws. With the number of armed groups that have come forth and been in the news lately it is safe to say that they did not form with the authority of a state or federal government and are therefore illegal.
But that hasn’t stopped President Trump from publicly admiring these illegal groups from afar and giving them encouragement. Just the presence of the groups alone makes them in violation of the law but it is the encouragement from President Trump and his attempt to link their “protective activities” to the integrity of the upcoming election that is cause for high concern. The appearance of these “armed groups” will not make the conduct of any election or a polling booth any safer. On the contrary, roving bands of armed groups will only serve to suppress votes and intimidate voters into not coming to a polling booth because of fears of violence. Rep. Maxine Waters (D-CA) even stated that these groups are specifically targeting minority communities of color and low – income communities in order to suppress the votes from those voting blocs. The political tactics of encouraging these armed groups to “safeguard society” mirrors the techniques that were so often used in the racist Jim Crow South to prevent blacks from voting.
With the information compiled by the Georgetown University Law School on illegal armed militias and possible voter intimidation tactics in the coming election, voters now have at their fingertips info into how to spot these groups and what steps can be taken if these groups appear at a polling site. Some situations listed in the fact sheet to watch for are non – law enforcement people acting like law enforcement, questioning voters and even turning some people away. Armed people who are not law enforcement officers cannot do this and are simply trying to instill fear into voters, as was the case with the group of Trump supporters in Fairfax County, Virginia last month. This does not have to happen and with the state – by – state information provided by Georgetown Law School the tactics used by these illegal groups and encouraged by President Trump can be prevented from having a role in the upcoming election. LEARN MORE, LEARN MORE
- Georgetown University School of Law – infopage on danger of private paramilitary group with link to state – by – state factsheet on how to identify and report on illegal armed groups on election day.
- Election Law Blog – blog on voting rights and voter intimidation issues.
Debunking Republican Arguments To Speed Up Vote On Supreme Court Nominee In A Presidential Election Year
Policy Summary: On September 18, 2020 Supreme Court Justice Ruth Bader Ginsburg passed away at the age of eighty-seven. She had served on the Court as the second woman appointed to the Court since August 1993 after being appointed by then President William J. Clinton. The death of Justice Ginsburg has set off a political battle for control of the nomination and confirmation of the justice who will replace Ginsburg on the Court.
Article II, Section 2, Clause 2 of the U.S. Constitution states, “…and [the President] shall nominate, and by and with the Advice and Consent of the Senate…judges of the supreme Court…” With a 53 – 47 Republican majority advantage in the Senate and only a majority required to confirm a nominee, Republicans appear to have the votes to confirm a successor. However, the political battle to confirm a successor after Justice Antonin Scalia’s death in 2016 is influencing whether the chamber will even vote on a nominee. After Justice Scalia’s unexpected death, Senate Majority Leader Mitch McConnell (R-KY) refused to hold a hearing on President Obama’s nominee, Judge Merrick Garland, on partisan grounds. No vote was ever taken on President Obama’s nominee and the Supreme Court spent 2016 with only eight members on the court. After the election of Republican Donald Trump as President, he nominated Judge Neil Gorsuch in 2017 and the Senate voted to confirm him. LEARN MORE
Policy Analysis: With the 2020 U.S. Presidential election a little more than a month away, most Republicans in the Senate are eager to rush a vote on Justice Ginsburg’s replacement on the Supreme Court. However, the rationales to speed up the process and schedule a hearing and vote in the Senate has caused many voters to cry “hypocrites.” Many of those cries are directed at Senate Majority Leader Mitch McConnell who famously blocked Judge Merrick Garland’s nomination from even having a hearing.
The main rationales being used by Republicans today to vote on an upcoming nominee before Election Day are  that since the 1880’s no Senate has confirmed an “opposite party” President’s nominee during an election year and so refusal to confirm an “opposite party” nominee in 2016 and vote on a “same party” nominee in 2020 is ok and  that a justice on the Supreme Court is needed in case the 2020 election is close and a decision from the Supreme Court is required. Neither of these rationalizations has any merit.
While many Republicans have adopted the talking point that since the 1880’s no Senate has confirmed an “opposite party” Presidential Supreme Court nominee during an election year vacancy, closer inspection of the historical record shows that this is false. During the 1988 election year, the Democratic controlled Senate confirmed Republican President Ronald Reagan’s nominee to the court, Justice Anthony Kennedy. Not only was he approved but he was approved unanimously 97 – 0. And in the 1956 election year, Republican President Dwight Eisenhower was successful in having Justice Brennan appointed to the Supreme Court as a recess appointment, which was later approved by the Democratic Senate in 1957. So, the argument by today’s Republicans about an “opposite party” Presidential nominee not getting confirmed by the Senate is just plain wrong and a distortion of historical fact.
Finally, the argument that the Supreme Court needs a justice to bring the membership of the court back up to nine in order to avoid tie votes is one that has been floated by Sen. Ted Cruz (R-TX). He has been emphatic that there is a possibility that a close result in the 2020 Presidential election might end up before the Supreme Court and so it is important that the Court be able to resolve cases definitively instead of having cases end in a 4 – 4 tie. However, that argument is undercut because of how Mitch McConell blocked the Garland nomination in 2016. With Justice Scalia’s death in February 2016 and McConell stubbornly refusing to even hold a hearing on the Garland nomination the Senate in 2016 allowed the Supreme Court to remain at eight members for nearly all of 2016. In total, the Supreme Court remained at eight members for fourteen months. It even included the October, November and December months of the 2016 election season. If Sen. Cruz and his Republican colleagues are worried about having Supreme Court cases end in 4 – 4 ties then why did they leave the Court with only eight members during all of 2016 and through the 2016 election season? This argument being put forth by Republicans now in 2020 has no merit and based on their obstructionist actions in 2016 is easily dismissible as Republicans playing a partisan game for control of the Supreme Court.
Sen. McConell and the Republicans in the Senate said in 2016 that they would not hold a vote on a Supreme Court nominee during an election year because they wanted the American people to have a voice in who a potential Supreme Court nominee should be by their vote for President. But based on their rush to hold a vote on a potential Supreme Court nominee about a month before the election the Republicans have shown that their words are meaningless and that their self – serving arguments are nothing more than falsehoods and contradictions in service of their partisan interests. Senate Republicans should follow their own words and not hold a vote on a Supreme Court nominee until the results of the November 2020 Presidential election are in. LEARN MORE, LEARN MORE, LEARN MORE
- Demand Justice – group organized to nominate progressives to the judiciary.
- American Civil Liberties Union (ACLU) – tribute page to the work and legacy of Justice Ruth Bader Ginsburg and the Women’s Rights Project.
Policy Summary: On September 15, 2020 Judge Richard A. Frey of the Court of Common Pleas of Franklin County, Ohio issued an opinion in the case Ohio Democratic Party v. LaRose. That case was brought in response to the use of “ballot drop boxes” in each Ohio county.
Frank LaRose is the Ohio Secretary of State which puts him in charge of the conduct of elections in the State of Ohio. According to state law each Ohio county is required to provide one secure receptacle for the receipt of absentee ballots in each county. The ballot boxes are designed to only receive ballots and not other pieces of mail. The law also requires that the ballot boxes be monitored 24/7 and that ballots are to be retrieved jointly with at least one Republican and one Democratic board of elections member daily. With this framework of state law in place, Secretary of State LaRose issued Directive 2020-16 on August 12, 2020. The Directive was sent to every Ohio county board of elections and included a statement that read, “Boards of elections are prohibited from installing a drop box at any other location other than the board of elections.” The result of this directive was that each county in Ohio was limited to only having one ballot drop box per county. After the issuance of the directive the Ohio Democratic Party and a coalition of voting rights groups sued Secretary LaRose to challenge his directive that limited each county to only one ballot drop box. In his opinion Judge Frey struck down Directive 2020-16 and called the order limiting each county to one ballot drop box “arbitrary and unreasonable.” LEARN MORE
Policy Analysis: The situation in Ohio is yet another feature in the ongoing national discussion about the use of absentee ballots to vote in the November 2020 election. While the discussion on the use of absentee ballots had been focused on claims of fraud, the accepted legal excuse to vote absentee and the technical requirements for a valid absentee ballot (use of affidavits, residency requirements for college students) this case is one that is focusing on the use of ballot drop boxes.
One argument on having more ballot drop boxes installed is because Ohio’s eighty – eight counties are different and only having one ballot drop box per county does not take into consideration population differences and distances that might have to be traveled just to reach the one ballot drop box. A rural county could probably handle having only one ballot drop box but larger urban areas might need more than one to handle absentee ballots that might come close to numbering in the millions. This is a very real possibility in the midst of an ongoing pandemic where people have been sheltering at home. And having only one ballot drop box might require some voters to commute as long as two hours just to drop their ballot in the designated drop box. By not installing more ballot drop boxes, Secretary LaRose’s Directive has made it burdensome and onerous for some voters to vote with their absentee ballot.
Voting should not be so cumbersome or complex but unfortunately this situation came down to partisan politics. Ohio has been and will likely be a swing state this November and that partisan divide was exposed over the issue of ballot drop boxes. Secretary LaRose is a Republican and his actions have been seen as voter suppression tactics despite claiming otherwise in a number of public pronouncements. He has claimed to not have legal authority to add additional boxes. Yet when the Attorney General of Ohio did not take a side on the state law the Secretary decided to stay with one ballot box per county when he could have issued the order for more ballot drop boxes. When the Cuyahoga County Board of Elections tried to install six more ballot boxes on their own in their county Secretary LaRose decided to step in and ordered the county to cease installing more ballot boxes. These actions gave the impression of a partisan motivation to help Republicans and their candidates in the state rather than helping all voters cast their ballots regardless of their political preference. With the issuance of Judge Frey’s order in the case it seems likely that Ohio can now proceed and help voters have their absentee ballots counted come November 2020. Although the issue might not be over as a lawsuit in federal district court in Pennsylvania has been placed on hold and a case in federal district court in Ohio is also ongoing. LEARN MORE, LEARN MORE
NPR’s 2020 Election: Secure Your Vote Series – latest article on usage of ballot drop boxes from National Public Radio’s special 2020 Voting Rights series.
Election Assistance Commission (EAC) – infopage on guidelines the Election Assistance Commission recommends on the use of ballot drop boxes.
Eleventh Circuit Court of Appeals Sides With Florida Republican Lawmakers In Restoration of Vote To Felons Case
Policy Summary: The Twenty – Fourth Amendment to the United States Constitution provides in Section One:
The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
On November 6, 2018 voters in the State of Florida approved the ballot initiative known as Amendment 4. The initiative would permit Florida felons to be restored with the right to vote after they had completed all the terms of their sentence. Florida voters approved Amendment 4 overwhelmingly with 64.55% voting in favor while 35.45% voted against the measure. In 2019, due to Republican opposition to Amendment 4, Governor Ron DeSantis signed a bill that added an additional requirement before the right to vote was restored. SB 7066 required that felons must also pay all fines and fees associated with their sentence.
The battle then moved to the court system. The Florida Supreme Court ruled that the law was constitutional. However, another suit was brought in federal district court in Florida which ruled that the additional requirements of SB 7066 violated the U.S. Constitution and therefore the court issued an injunction blocking implementation of SB 7066. That ruling was appealed to the U.S. Court of Appeals for the Eleventh Circuit, which just ruled to uphold the injunction of the law issued by the federal district court. LEARN MORE
Policy Analysis: While this decision by the U.S. Court of Appeals for the Eleventh Circuit is a win for voting rights advocates it is certainly not the end of the case. The injunction initially issued by U.S. District Judge Robert Hinkle was only an order to prevent the law from going into effect until the issue can be decided on the merits at a full trial. With the injunction upheld by the appeals court the law remains frozen pending the non – jury trial that had been scheduled.
Additionally, Governor De Santis’ has indicated that he was disappointed with the ruling and intends to appeal the decision. An appeal would likely take several months to be resolved and might not be resolved in time for the November 2020 elections. However, a number of academics have calculated that the number of felons who would have their voting rights restored is 1.4 million which can certainly sway an election or an initiative on the ballot. This explains why both parties are going to extreme lengths to fight for the future of this issue. Republicans had initially opposed Amendment 4 and suffered an unexpected defeat when voters overwhelmingly approved it. In turn, Democrats have accused Republicans of trying to oppose the popular will of voters by adding additional requirements that would blunt the move to add 1.4 million more voters to the state rolls. And if the case moves up through the appeals process and eventually to the U.S. Supreme Court that will also likely bring up the constitutional poll tax issue which was outlawed with the 24th Amendment in 1964. The stakes are certainly high and while many would have liked to have had this issue resolved in time for the November 2020 elections it seems up in the air whether 1.4 million former felons in Florida will have their voting rights restored by the end of the year. LEARN MORE, LEARN MORE, LEARN MORE
Update: On July 16, 2020 the Supreme Court of the United States issued an order in the case Raysor v. De Santis. After a long, complex and winding road through the Florida judiciary and then the federal judiciary the case reached the Court of Appeals for the Eleventh Circuit. The federal district court had issued a permanent injunction barring full implementation of the law and with a number of remedies crafted by the trial court. Judge Robert Hinkle allowed felons to rebut the presumption that they were unable to pay as determined by the State, allowed felons to seek how much they owed in order to vote (this was likely a rebuke to Florida due to the state’s admission at trial that they did not keep accurate records nor had a workable database as to what felons owe the state in terms of fines and fees) and ordered the state to let felons register to vote without being prosecuted for a violation of the law. But when the case was appealed the Court of Appeals for the Eleventh Circuit issued an order without an opinion that did not allow the remedies from the trial court to go into effect. That move essentially did not permit felons to have their voting rights restored, for the moment. The case was then appealed to the U.S. Supreme Court. The Supreme Court upheld the Eleventh Circuit court order which in effect leaves 1.4 million Florida felons without the right to cast a ballot in upcoming state and federal elections in Florida for the foreseeable future. The case will proceed on the merits at a later date but the emergency application to have the law reinstated immediately has been denied.
Justice Sonia Sotomayor issued a dissent to the Supreme Court order and she brings up the Purcell Principle, which has played a leading role in a number of Supreme Court decisions regarding voting rights this term. The Purcell Principle, which comes from the 2006 Supreme Court case Purcell v. Gonzalez, cautions against making voting changes so close to election day in order to not confuse and burden voters who might not be up to date on the new changes. As Justice Sotomayor sees it, by blocking the law from going into effect the court is creating more confusion for felons as they now cannot rely on a law to figure out whether they are eligible to vote. If the goal is to create a stable voting atmosphere devoid of last minute voting rules changes, then why did the Supreme Court choose a path that makes a number of last minute voting changes that causes a felon to be unsure whether they are eligible to vote or not? Justice Sotomayor’s dissent is a pointed rebuke to the reasoning and rationale the Court has charted this term with regard to voting rights. It as a disappointing moment for the issue of vote restoration for felons but the case still remains to be played out as a hearing on the merits of the issue (as well as the application of the Twenty – Fourth Amendment) is scheduled for August 2020 in the Court of Appeals for the Eleventh Circuit. LEARN MORE, LEARN MORE
Update # 2: The current poll tax situation and the restoration of the right to vote to Florida felons has had a long and convoluted procedural history through both the Florida and federal court systems but it looks like a definitive answer has been issued from the Eleventh Circuit Court of Appeals. The Eleventh Circuit issued on September 11, 2020 its opinion in Jones v. Governor of Florida and the appeals court sided with the Republican Governor and Republican lawmakers in the state in a 6 – 4 decision.
In the case the court interpreted the term “all terms of a sentence” to include not just serving the complete term of incarceration but all other requirements that were imposed as part of the sentence. This includes any outstanding fees, fines and other financial obligations that could still be outstanding even though the person may have completed a prison sentence. The majority opinion addressed the issue of Florida’s requirements and if it could be consistent with the U.S. Constitution’s Twenty – Fourth Amendment’s prohibition against poll taxes as a requirement to vote. Chief Judge William Pryor wrote that the financial obligations required in Florida’s laws does not violate the Twenty – Fourth Amendment because the fines and fees in this case are not a “tax.” The key distinction Chief Judge Pryor made was that the court costs and fees are penalties for actions undertaken by the defendant and so are properly classified as a penalty rather than a tax. While this is a significant legal point the majority opinion struggles to address a significant feature of this entire saga – that the ballot initiative to restore voting to rights to felons was overwhelmingly approved by Florida voters by a nearly two to one (2 – 1) margin. The only reason Amendment 4 was challenged in the Florida and federal courts was because Republican lawmakers in the state wanted to suppress the nearly 1,000,000 votes that were not likely to vote Republican. With a history of razor thin margins in elections, having nearly 1,000,000 new voters could have tipped the upcoming 2020 elections further to the left. Now, because of their political considerations and their decision to ignore the will of the Florida electorate Republicans with this disappointing Circuit Court of Appeals decision have succeeded in suppressing a significant number of votes for the 2020 election. LEARN MORE, LEARN MORE
- Brennan Center for Justice – non – profit group’s Voting Rights Restoration project.
- American Civil Liberties Union (ACLU) – statement on appeals court decision regarding voter restoration to felons in Florida.
- More Than A Vote – non – profit group fighting against Black voter suppression and raising money to pay for fees and fines that felons are unable to pay for themselves.
History And The Law Are Against President Trump’s Proposal For Law Enforcement Officers At Polling Booths
Policy Summary: On August 20, 2020 President Donald J. Trump said in an interview that he would send law enforcement officials to polling stations around the country. The intent was to protect against voter fraud in the upcoming November 2020 election. In his interview with Sean Hannity of Fox News the President said, “We’re going to have sheriffs, and we’re going to have law enforcement, and we’re going to have, hopefully, U.S. attorneys, and we’re going to have everybody and attorney generals.”
The idea floated by President Trump has its roots at a February 2020 conference in Orange County, CA sponsored by the Council for National Policy, a right – wing religious group. Other groups in attendance at the meeting, such as the group True the Vote, have advocated for more voting restrictions and for aggressively challenging a voter’s credentials at the polls.
Despite the President’s announcement, no plan or details have been revealed thus far to implement the President’s proposal. LEARN MORE
Policy Analysis: The President’s announcement was met with widespread disapproval. Dale Ho of the American Civil Liberties Union’s (ACLU) Voting Rights Project dismissed President Trump’s suggestion by saying the President neither had the power to order a local sheriff to do something nor had the power to send federal forces into polling places. Wendy Weiser, Director of the Democracy Program at the Brennan Center for Justice cleverly pointed out that a number of states and local jurisdictions have laws against law enforcement officers being in polling places. A number of state Secretaries of State pushed back on Trump with Colorado Secretary of State Jena Griswold calling the proposal “voter intimidation” reminiscent of “tactics used against Black voters in the Jim Crow South.” The common themes that could be found in the pushback against the President are of a President trying to exert non – existent powers and an attempt to intimidate potential voters and suppress the vote.
While comparing President Trump’s proposal to old Jim Crow tactics is a useful analogy an incident from New Jersey in 1981 best illustrates why armed law enforcement officers at polling booths is easily one of the worst ideas. That year the Republican National Committee (RNC) decided to create the National Ballot Security Task Force. The RNC hired two hundred (200) off – duty police officers and private security officers to maintain a presence at polling booths while carrying visible firearms and walkie – talkies. They also wore armbands with the name “Task Force.” The members of the group were deployed to polling booths in predominately Black and Latino neighborhoods in New Jersey during a heated election for Governor that year. On Election Day, members of this group tried to intimidate voters by asking for voter registration cards from Blacks. They also chased many Latinos away from the polls. Eventually, the RNC was sued which resulted in a consent decree where the RNC agreed to not engage in poll watching without prior court approval. That consent decree was in effect for nearly four decades before it expired in 2018. What that incident in New Jersey showed was that poll monitors employed by the RNC were nothing more than a way to intimidate voters of color from voting. Now, with President Trump suggesting that armed law enforcement officers be stationed at polling booths, it is clear that the Republicans might again be on the verge of trying to intimidate voters, specifically voters of color, with agents visibly displaying weapons. While that consent decree was helpful in reigning in Republican voter suppression tactics it can no longer be relied on since it has expired. What is needed now is a concerted effort to employ all local, state and federal laws that prohibit law enforcement officers from polling booths. There also is a need for a campaign to inform and warn the citizenry that President Trump’s proposal is not a proposal for election integrity but nothing more than a discredited old tactic used by racists from the Jim Crow era. The United States of America does not need an armed law enforcement presence to conduct a national election. LEARN MORE, LEARN MORE, LEARN MORE
- American Civil Liberties Union (ACLU) – infopage on the group’s Voting Rights Project.
- Brennan Center for Justice – infopage for group’s voting rights efforts.
Policy Summary: On August 10, 2020 the New Jersey Supreme Court decided the case New Jersey v. Andrews. The case is notable because of the decision by the court that criminal defendants can be compelled to turn over cell phone passcodes to law enforcement authorities to enable them access to the contents of a person’s cell phone.
Robert Andrews was a former New Jersey Essex County sheriff’s officer who was accused of collaborating with a drug dealer who was being investigated for narcotics trafficking. In the course of the investigation into the drug dealer’s activities the dealer revealed to investigators that a sheriff’s officer – Robert Andrews – was providing him with information on the status of the investigation. Additionally, Officer Andrews was also providing information as to how the drug dealer could do things to avoid further criminal exposure – by checking if his car had a tracking device, by warning him that his phone calls were likely being monitored and which officers were following him. As a result of this information from the dealer, law enforcement authorities executed a warrant on the cell phones of Officer Andrews and the dealer and found a total of one hundred fourteen (114) cell phone calls and text messages between the two men during the period of the narcotics investigation into the dealer. In order to corroborate information that the dealer provided to law enforcement, prosecutors requested Officer Andrew’s cell phone passcode in order to view information contained in his cell phone. Officer Andrews refused on the grounds that he had a right against self – incrimination. The trial court denied Officer Andrew’s refusal and ordered him to reveal his cell phone passcode. The case was then appealed to the New Jersey Appellate Division which ruled against Officer Andrews again. Another appeal ensued and the case went up to the New Jersey Supreme Court.
The New Jersey high court ruled 4 – 3 that “Neither federal nor state protections against compelled disclosures shield Andrew’s passcodes.” LEARN MORE
Policy Analysis: The decision from the New Jersey Supreme Court is one of the first state high court decisions to issue a ruling on the issue of whether a person can be compelled to open up the contents of their cell phones to law enforcement authorities. The issue has its roots near the U.S. border where a 2018 Customs and Border Protection policy was instituted to search electronic devices of persons attempting to cross into the U.S. However this case was different because the law enforcement officers in New Jersey were basing their search of a cell phone on the fact that they could compel a person to reveal his passcode. Because this was a criminal case against the officer, the Fifth Amendment right against self – incrimination came into play. That Amendment allows a person to not say anything or make any communication that will incriminate himself. The majority opinion in this case reasons that the act of not providing the passcode is not permissible because there has been no showing thus far that anything incriminating is on the cell phone. Only with knowledge that there is something criminally incriminating on the phone can the officer invoke the Fifth Amendment right. This is a difficult position because Andrews can only prevail in invoking the right if he first opens his cellphone to law enforcement authorities which may reveal incriminating information against him before he can invoke his Fifth Amendment right.
The minority opinion written by Justice Jaynee LaVecchia charts a different course and one that presents the best argument against forced compulsion. In her opinion, she highlights that this case illustrates how a person is being forced to disclose the mental contents of their mind. This is a severe violation of a person’s privacy and is in direct opposition to the principles and rationales of the Fifth Amendment – a protection against being forced to incriminate oneself. In it’s simplest form, there is a right to remain silent yet this court has now shifted in the direction that a person can be compelled to say something that exists only in their minds with the consequences that they could be incarcerated. Justice LaVecchia continues by showing that there is no U.S. Supreme Court case or other case authorities that require this kind of forced compulsion by law enforcement authorities against a person. This places the New Jersey Supreme Court opinion a step away from the accepted investigative techniques used by law enforcement. Justice Lavecchia’s opinion is the opinion most consistent with Fifth Amendment case law and rationales and should be the one future courts look at when examining and deciding this unique privacy issue scenario. LEARN MORE, LEARN MORE, LEARN MORE
- American Civil Liberties Union (ACLU) – non – profit group’s infopage on cell phone privacy issues.
- Electronic Frontier Foundation (EFF) – non – profit group’s amici brief in State v. Andrews detailing arguments made before opinion was issued.