Archives for: April 2012
I want to live in a surveillance state. Big Brother, come cast your watchful eye over me and mine. I love you, bro.
Seriously, when I saw the outcry over Government plans to gain access to telephone, email and internet, my initial reaction was: “You mean they can’t do that already?”
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The Supreme Court hearings on Obamacare were, at turns, boring, entertaining, funny, enlightening, thoughtful, and shocking. The shocking parts were the seeming cluelessness of some of the Justices to how Congress works, how commerce works, how life works for those who depend on medical care and do not have it.
One aside dealt with the constitutional problem posed by the existence of Medicaid. Not mandates. Not taxation authority. Not Obamacare. But whether the Court ought to outlaw Medicaid. Medicaid. The problem seemed to be that care for poor people was to be subsidized by the federal government, and the subsidy was conditional. States must provide the part of the funding if they are to qualify for the conditional federal funding. And they must meet some basic guidelines for the quality of the medical care they provide for the clients of Medicaid. That is, they have to meet those guidelines in order to qualify for federal money.
The objection by the Justices was that this is a federal intrusion that may be unconstitutional. To ordinary citizens, this may seem a strange logic. The federal government offers help for the medical care of those who need that care but cannot afford it, as long as states partially fund that care and the care is of sufficient quality. Otherwise the deal is off.
That's the intrusion. To prevent the intrusion, the Justices talked about possibly ending Medicaid.
It was reminiscent of a scene from the 1978 film Heaven Can Wait. The owner of a national football team has suddenly become an ex-owner. He's out of the game.
"He got my team. The son of a bitch got my team."
"What kind of pressure did he use, Milt?"
"I asked for sixty-seven million," . . . (pause) . . . "and he said okay."
It got worse. At several points, Justice Antonin Scalia lapsed into a series of soliloquies that seemed to be taken from late night talk radio, rather than from law books. Scholars who follow judicial arguments were surprised. It was as if he had gotten his law degree from sending in box tops.
It needn't have surprised. Justice Scalia has not yet achieved the reputation he deserves. In Dukes vs Walmart. he explained why women suffering gender discrimination as employees of Walmart could not join together in a class action. A class action can only be joined if there is a commonality, a joint interest. For a class action, there had to be a pattern of discrimination, encouraged by management. The allegation was that management had refused to adopt common sense policies against gender bias. They had a written policy, but it was not enforced and managers were encouraged to defy it.
Justice Antonin Scalia said the women couldn't sue as a group. There was no commonality. Maybe hundreds or thousands of individual instances, but no common practice. His logic was a martial arts twist. The company had written a policy against discrimination. If the policy is real, you can't sue the company for not having a policy it actually has. And if the policy is not real, then the company has no policy. You can't sue a company for a policy that does not exist.
Uh huh. The good Justice will one day be recognized for adopting a conclusion, then using creative mental acrobatics to get there from here. And that, members of the historical jury, is a pattern.
A few years ago, in a television interview, he explained why he holds a narrow view of the Eighth amendment against cruel and unusual punishment. Torture is constitutional, he explained, if it happens before trial and conviction. He reasons that you can't punish someone unless there is something to punish them for. Before conviction there is no proven crime, so any torture is not actual punishment.
Yeah, he said that.
A couple of years ago, he told a law school audience that it is Constitutional to discriminate against women, gays, and ethnic minorities. Equal protection under the law may be forbidden by the 14th Amendment, he acknowledged, but applying it to everyone was "a modern invention."
It is understandable that the President might object to the twists and turns that a court can try to achieve in twisting the law, and the judicial temptation toward the abuse of authority. And he did, with remarkable words:
For the judiciary, resisting this temptation is particularly important, because it's the only branch that is unelected and whose officers serve for life. Unfortunately, some judges give in to temptation and make law instead of interpreting. Such judicial lawlessness is a threat to our democracy -- and it needs to stop.
When the President uses the phrases unelected and serve for life, his remarks can be expected to provoke alarms throughout the conservative world. Except for one thing.
The President was George W. Bush in a speech he gave in 2007 to the Federalist Society. There was no political outcry, and no judicial reaction at all. After all, it was Republican President Bush. President Obama was much milder in his remarks:
I'd just remind conservative commentators that, for years, what we have heard is, the biggest problem on the bench was judicial activism, or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law.
Well, this is a good example, and I'm pretty confident that this court will recognize that and not take that step.
Not so bad, right? Think again. A conservative Appellate Court Judge hearing a separate case regarding health care decided to weigh in. In court, he told a surprised Department of Justice lawyer to submit an essay.
I would like to have from you by noon on Thursday … a letter stating what is the position of the Attorney General and the Department of Justice, in regard to the recent statements by the President, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review.
That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the president’s statements and again to the position of the attorney general and the Department of Justice.
So a conservative Appellate Judge demonstrated judicial restraint by demanding a three page essay on the power of the courts.
You're probably not familiar with the name John Carlos. But you almost certainly know his image. It's 1968 at the Mexico City Olympics and the medals are being hung round the necks of Tommie Smith (USA, gold), Peter Norman (Australia, silver) and Carlos (USA, bronze). As the Star-Spangled Banner begins to play, Smith and Carlos, two black Americans wearing black gloves, raise their fists in the black power salute. It is a symbol of resistance and defiance, seared into 20th-century history, that Carlos feels he was put on Earth to perform.
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If the Democrats said we had a war on caterpillars and every mainstream media outlet talked about the fact that Republicans have a war on caterpillars, then we'd have problems with caterpillars.
- - Reince Priebus, Chair Republican National Committee, April 5, 2012
Republicans keep tripping over themselves, falling into a gender gap. Conservatives struggle against the image of a a war on women, and say the characterization is unfair. Republicans consider it a problem to be overcome. Democrats insist the war is real. They think it is, at the same time, and outrage and an opportunity.
Polls show Virginia's very popular Republican Governor Bob McDonnell is now Virginia's very unpopular Republican governor, primarily because of the now partially retired vaginal probe law that didn't quite become a law. Virginia's former Republican Senator George Allen hopes to be Virginia's future Republican Senator. He would be way ahead of his opponent Tim Kaine, except that women voters are so far less likely to be for him the two are pretty much tied, with Tim Kaine a single point ahead.
Same thing in Massachusetts. Democrat Elizabeth Warren would be behind Senator Scott Brown except for the ten point lead she has with women. So they are almost tied. In Florida, in Nevada, in Wisconsin, pretty much everywhere. Democrats are even or ahead or way, way ahead in unexpected regions of the nation. President Obama leads in several states as a result of a lead with women voters.
Republicans think the "War on Women" is either an election year mirage ginned up by Democrats or a matter of hyperbolic exaggeration. But they do regard it as a political problem. Birth control has become the issue from hell for conservatives, with talk of sluts, aspirin contraception, and irresponsible women. Discussion seems like a montage of ancient sound recordings from the 1950s.
So Conservatives think Republicans have a gender gap. Republicans think so too. Democrats think there is a gender gap creating serious problems for the GOP. Liberals are angry but look to the gender gap as a portend of well deserved electoral justice come November. You think Republicans have a problem. I think Republicans have a problem. All God's children think Republicans had better get moving on this.
Except for the Republican base and those who respond to that base.
Here's how Brian Walsh, the communications director for the National Republican Senatorial Committee sees it. "It appears that it's the Democrats who have a growing gender gap problem -- with male voters."
Yup. According to the Brian Walsh wing of the Republican party, those who run the national campaign to take over the Senate, the birth control debate, the vaginal probe debate, the proposed end of funding for cancer screenings, the name calling, the 1950s voice from the distant past, have all combined to attract men to vote for Republicans.
Walsh, as one in the inner national Republican campaign circle points to close races in a dozen states as evidence of a male gender gap problem for Democrats. He is not alone.
Next month, Republicans controlling the state legislature here in Missouri will hold a ceremony in Jefferson City. In the Capitol rotunda, an official state bust of Rush Limbaugh will be unveiled.
Rush will look over future generations of Missouri citizens, reminding us all of how Republicans, at this point in American history, instructed us on the basic relationship of men, women, and politicians.
Chris Larsen revealed a state secret, and it cost him his job.
A while back Governor Scott Walker of Wisconsin and his Republican state Senate and legislature passed a restrictive Photo ID law. It said that voters who do not drive and are not licensed cannot vote using traditional identification. They are now required to get an additional voter ID.
The old system had worked pretty well. Penalties are harsh for voter fraud, and the chances of getting caught were not negligible. Wisconsin has experienced a voter Fraud rate of pretty close to zero. The traditional system was actually very simple.
If I decided to commit voter fraud, how would I go about it?
I would have to go to a polling place and tell them I was a registered voter. Simple enough. But I'd have to do it right. If I'm caught I can face heavy fines and serious jail time. So I'd be really careful. I'd have to be sure to use the name and address of an actual registered voter. If there was no name that matched the one I gave, I'd get caught.
How would I know what name to use? Well, maybe enough research would get me a name. Could be there are ways that would not occur to most of us. Perhaps I know someone who knows someone who works at election headquarters. Maybe my brother-in-law is a poll worker and I can slip him a few bucks in the morning, get a name, then return in the afternoon. Might work. Can political organizations purchase names of registered voters? Maybe.
Once I had a name, how would I know the person had not voted already? If they had, I'm cooked. I'll be caught and face an unfriendly judge. Fines and jail time.
Maybe I can pick the name of someone who died. That way the voter for sure wouldn't have voted before I got there. Sometimes those folks are not purged from the voting rolls right away. Obituaries are often published. We see them in the daily paper. But I'd have to be sure I picked the right polling place. That unfriendly judge remains a possibility if I'm wrong. Not everyone registers to vote, do they? If I pick the name of a deceased NON-voter I'd be trying to vote with a name they don't have on the rolls. Then I'm caught again and that judge is waiting for me. So I'd better be sure my target was a voter back when he was among the living. Let's go back to that brother-in-law or some other way of finding names, then cross-checking against obituaries.
Things are still a little dicey. If I tell the friendly poll worker the fraudulent name and they have already purged the dead voter, I'm back before the judge. Even if the dead person is still listed as a voter, a poll worker might recognize the name. Or another voter waiting in line might have attended the funeral. And I'm back before the judge. The chances are not really great, but they are substantial enough to merit extreme caution.
In fact, when a conservative activist group tried to demonstrate on secret video how easy it was to commit voter fraud in Vermont, that's just how one of the team was caught the very first day. A poll worker recognized the name of the dead person one of the activists was pretending to be. Fellow ran so fast he must have set a record. Even so, police almost caught him.
Then there's the matter of forging the various pieces of identification that have always been required. A slip up there can cost me my freedom if I do it wrong.
If I'm a crooked politician and I want to buy an election, I could send a few thousand fake voters out with instruction of how to beat the system. What are the odds one or more will be caught? And if they are caught, what are the chances they will be willing to face fines and jail time all alone?
It's possible, I guess. But, you know what? If I want to buy an election, I'd go the safer way. Any crooked pol would. Bribe someone to change a total. Leave out a precinct from reported totals. Where ballot boxes are still used, slip in a few thousand pieces of paper when nobody is looking.
Then, maybe in my spare time, I'd yell about requiring Photo IDs. After all, they wouldn't affect anyone who is really out to steal an election.
But Wisconsin lawmakers were unswayed by such arguments. They insisted they really wanted to stop voter fraud.
A lot of voters are considered the working poor. They ride buses to and from work. They don't have a photo ID because they do not drive and don't have a license. Wisconsin lawmakers insisted they had nothing against poor folks, especially the working poor. Work is an honorable thing. Lots of those working poor are minority voters. Lawmakers were emphatic during debates. They had nothing against minority voters. They just wanted to prevent voter fraud ... you know ... before it ever happens. A lot of retired folks had, long before, given up their drivers licenses. Lawmakers bristled at the idea that they might want to keep grandmothers from voting.
All of those groups tended to vote for Democrats, but Republicans insisted that was a mere coincidence. In fact, to avoid any impression they wanted to keep people from voting, they decided to allow anyone without a drivers license to get a photo voting ID for free. No charge. Zero cost. Free.
No problem, right? Then they began to close offices where the free IDs could be gotten. Not all offices. But those in poorer areas. Those in predominantly minority areas.
The Governor insisted there was nothing sinister in this. A huge tax cut had just been given to wealthy taxpayers, and cuts had to be made. Everyone had to sacrifice. Union supporters were demonstrating because union rights of public employees were being abolished. Folks who ride buses had no demonstrations over licensing office closings.
A memo was sent to state employees. If a non-licensed voter demanded a free license at a licensing office it could be given, but only if they specifically asked. Otherwise they were not to be told they could get a Photo ID. If some other state office employee was in contact with a voter who only had traditional ID, it would be okay for that voter to be directed to a state ID office where a Photo ID could be gotten. But only if that voter specifically asked for directions to an identification license. Otherwise state employees were ordered not to tell anyone about the free Photo IDs.
One state employee is named Chris Larsen. Chris Larsen was a worker in a mail room. Chris Larsen sent an email to fellow workers. This is what it said:
Do you know someone who votes that does not have a State ID that meets requirements to vote? Tell them they can go to the DMV/DOT and get a free ID card. However they must ask for the free ID. a memo was sent out by the 3rd in command of the DMV/DOT. The memo specifically told the employees at the DMV/DOT not to inform individuals that the ID’s are free. So if the individuals seeking to get the free ID does not ask for a free ID, they will have to pay for it!!
Just wanted everyone to be informed!! REMEMBER TO TELL ANYONE YOU KNOW!! ANYONE!! EVEN IF THEY DON’T NEED THE FREE ID, THEY MAY KNOW SOMEONE THAT DOES!! SO TELL EVERYONE YOU KNOW!!
Chris Larsen was immediately fired.
The League of Women Voters has sued over adding a new Photo ID requirement, then making it harder to get a Photo ID. Two separate Wisconsin Circuit Judges have ruled the Photo ID law violates the Wisconsin state constitution. One said voter fraud would be a serious problem "where it exists." But he went on.
But voter fraud is no more poisonous to our democracy than voter suppression. Indeed, they are two heads on the same monster.
Governor Walker said it was a shame judges would go against common sense. What is at stake is "citizens' confidence in the results of our elections." Republicans are appealing. As conservatives point out, the integrity of the voting process must be preserved.
How many ways does this have to be wrong?
In our broadcast of February 29th we misidentified a man shown in this photograph as Andre Morgan, a witness in the South Capitol Street murder trial.
The man shown here is not Andre Morgan and has no connection whatsoever with that murder trial. We regret the mistake.
Let's see: How many things can you see wrong with this picture?
They broadcast a photo of a witness about to testify in court over a massive drive-by shooting.
Then they regret broadcasting the wrong picture.
When Texas Republicans shortcut normal legislative procedures under emergency measures and rapidly pushed into law the addition of Photo ID's to existing traditional IDs as a voting requirement, they insisted that the new law was indeed urgent.
Republican state Senator Troy Fraser spoke for the majority.
Voter fraud not only is alive and well in the United States, it's also alive in Texas. I believe the dangers of voter fraud has threatened the entire electoral process.
They pointed out several cases, including nineteen votes in a close election that were fraudulent. The nineteen votes turned out not to be examples at all. Only one of the votes was a case of voter identification fraud. Other examples also vanished upon close examination. So the rationale changed. The law was a preventative measure. Then it became an appearance measure that would preserve public confidence.
Republican Representative Patricia Harless was the sponsor of the restrictive law. She originally had spoken of widespread voter fraud, but the lack of anything that had to do with identification prompted a change in her reasoning:
While there may always be disagreement about the extent of voter fraud in elections, the lack of public confidence in our voting system cannot be questioned. People who lack confidence in our voting system see no reason to show up and vote. This bill will preserve public confidence in elections.
So voter ID fraud retreated to possible future voter ID fraud, then the perception of possible future ID fraud.
There were charges that the Hispanic voting population was the target. Hispanic voters are 47% more likely not to have a Photo ID (pdf). State offices in Hispanic areas where photo IDs could be gotten were closed down. A one evening a week expansion of hours in other offices was voted down. Weekend hours were rejected. Reimbursement for the cost of obtaining new and restrictive documentation to get a photo ID was rejected. The fact that many Hispanic voters would be required to travel by bus over 170 miles to get IDs was said to be irrelevant.
A prime mover of new restrictions across the nation, Hans von Spakovsky, was brought in to testify. He denied that Hispanic voters, or the working poor who rely on bus transportation, or retired people who no longer drive, were targets:
There is no evidence that voter ID decreases the turnout of voters or has a disparate impact on minority voters, the poor or the elderly.
Sponsors insisted that von Spakovsky spoke for them.
When the Department of Justice last week announced that it would invoke the 1965 Voting Rights Act to stop the new restrictions, it could not have been a surprise. The federal law requires that Texas provide evidence that any change in voting laws will not disproportionately affect any minority. They have made assertions but assertions are not the same as evidence as required by law.
One part of the procedure is routine, when a state challenges a Justice Department ruling. Depositions are taken. Correspondence between legislators and their staffs is examined. Motivation is a factor in demonstrating a lack of discrimination in voting rules. Depositions and examination of evidence is an opportunity for legislators to demonstrate an important fact. That there was never any consideration given to denying Hispanic voters or anyone else the right to vote. That there was never any discussion among Republicans about how to make it harder for some people to vote.
Oddly, Texas legislators are now challenging the routine procedure. Examining what Republicans were saying to each other as they devised the new restrictive law is just not fair. It's a matter of legislative privilege.
You see, Texas lawmakers never intended to deliberately discourage voting by any ethnic group, or economic group, or age group. That would have been wrong.
The evidence that would demonstrate that?
None of your business.
It's been a staple of civics classes ever since 18 year old citizens got the right to vote. Students have been taught that the right to vote is basic, that it is more than a privilege, more even than a basic right, although it is all of those. Young people are told that voting is also a civic duty.
When needless obstacles were thrown in front of black people in states that had once belonged to the old confederacy, the right to vote was important enough to warrant federal legislation and court protection. People died to overturn barriers ostensibly erected for legitimate reasons. After all, shouldn't voters be able to read? Shouldn't they have at least some knowledge of government and history? What could be wrong with an educated electorate? And a poll tax was certainly a small price to pay for defraying costs of elections. The real purpose became more obvious even to hardened observers as voting rights activists began to disappear, their bodies found embedded in earthen dams.
One common part of teaching about civic duty has traditionally been actually registering newly eligible voters as they came of age. Voting registration forms have been an important part of high school education.
For several months, a high school civics teacher in Florida has been under a legal cloud. Jill Cicciarelli is charged with a crime and is subject to thousands of dollars in civil penalties. It seems she engaged her classes in registering to vote, as she had done annually for years.
Florida recently passed a new law that is very easy to violate. Anyone encouraging someone to vote, and providing forms to do it, must first fill out their own forms registering with the state, then must have the state approve that registration. If the person helping voters to register passes out registration forms, any form that is filled out must be turned in within 48 hours.
That 48 hour requirement is a practical problem for traditional voter registration drives. When an organization like the Boy Scouts, or a civic groups, or a student club deals with large numbers of registrations, it is very easy to miss the 48 hour deadline. It is not just a technical violation. The fines are huge and they apply to individual volunteers.
In Jill Cicciarelli's case, the number of registrations was not the issue. She simply did not know of the requirements. She was out on maternity leave when the restrictive new laws were passed. It created quite a buzz among groups that had a long, long tradition and plenty of experience in voter registration. They were against it. But ordinary citizens who might suddenly be captivated by a good, seemingly non-controversial, idea are usually not expected to be aware of such complexities. So the unsuspecting Jill Cicciarelli was turned in by an official described as sickened by that sad duty. She had failed to register for approval by the state. She had not turned in all the registrations within 48 hours.
Her case is special. Officials are taking their time in deciding whether to prosecute her for registering eligible students. But her case is not isolated. Established groups have dropped their registration efforts. The League of Women votes has conducted voter registration drives for over 90 years. This is the first time in many decades that they will not be doing that. Voting may be a part of good citizenship, but the inadvertent violation of needlessly restrictive requirements would expose volunteers to legal reprisals.
A number of studies have pointed to several new requirements as obstacles making it harder to vote. The Brennan Foundation has estimated that 5 million voters will be prevented from voting by additional voter photo identification requirements on top of what is already required. Most of them will be students (college IDs are deliberately disqualified), the working poor, minorities, and retirees. They will be told at the polls to go home.
Advocates of tighter, more restrictive requirements initially said it was to reduce widespread voter fraud. But voter fraud turns out to be non-existent under current requirements. More recently they describe their efforts as preventative, stopping fraud that has not yet happened. Although the combination of traditional identification, a public declaration among fellow voters at the polls of name and address, and harsh penalties for violation has all worked so far, they point to the danger that it may someday not be enough.
The US Department of Justice has some jurisdiction in cases where similar efforts in the past were designed to prevent minorities from voting. Literacy tests, poll taxes, and kidnappings are part of Florida history. The Justice Department has filed papers to force Florida to show they are not just trying to stop legitimate voters from casting ballots.
The idea behind the Justice Department filing is that such voter restriction efforts do not just prevent legitimate voters from voting as a sad but necessary result of legitimate restrictions. Rather preventing legitimate voters from voting is the very purpose of those restrictions. Conservatives have designed such restrictions while regarding denial of voting rights as a feature, not a flaw. At some point an issue of unintended consequence becomes a matter of obviously intended consequence.
There is no word on any possible state prosecution of other high school volunteers in Jill Cicciarelli's efforts to register students. As far as we know from reports, this civics teacher is the only one in legal jeopardy for that voting drive.
Similar requirements are being rushed to enactment in Republican controlled state legislatures across the country.
Todd Stave has the unenviable position of being the landlord of a building in Germantown, Maryland, which he leases to an abortion provider called Reproductive Health Services Clinic. So he knows a little something about dealing patiently with anti-abortion protesters. But when they started calling him at home at all hours and harassing his family, he got fed up and came up with a very clever solution: Do unto others as they have been doing unto you.