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Monday, October 24, 2016

One Person ... Five Votes

This election is important because of the death of Antonin Scalia and the aging of other members. The balance of the Supreme Court of the United States (SCOTUS) is at stake. Both sides have made this a campaign issue, citing the controversies that cause the most concern among passionate voters: abortion, the 2nd Amendment, minority rights, criminal justice. 

An issue that is never mentioned is the most important. That involves interpretation of Article I, section 2 as it relates to the right of the People to vote in elections.

In 1982, SCOTUS, in Karcher v. Daggett, struck down a New Jersey redistricting scheme. The Court ruled that the 14th Amendment Equal Protection Clause should apply to the right to vote, affirming the principle of “one person, one vote.” 

The NJ plan was discriminatory to minorities by reducing their power vis a vis districts that had a non-minority majority.

The precedent was followed in Davis v. Bandemer, in 1986. SCOTUS decided that Indiana’s redistricting plan could be challenged in court, but the justices split on the standards to apply to the practice. 

The case was complicated by the contradictory briefs sent to the court. In Indiana, the minority Democrats objected to Republican gerrymandering that watered down Democratic votes. But an amicus brief was filed by Democrats in other states—including California, where Dems controlled the Legislature and hence the redistricting—urging the court to stay out of politics. 

The members of the court agreed that the issue was one that should be presented to the court, but had trouble deciding the appropriate standards for deciding constitutionality. Justices White, Brennan, Marshall, Blackmun, Powell and Stevens agreed on parts of the majority opinion, but not others. C.J. Burger, O'Connor, Powell all filed separate opinions concurring, dissenting, joining - in different parts. 

Then, in 2004, in Vieth v. Jubelirer, the court ruled that gerrymandering was a political issue and not a fit subject for the courts. They upheld Pennsylvania’s plan that eliminated two Democrats from office in the next election, by redrawing districts after the state lost 2 seats in the 2000 census.

The plurality opinion was written by Antonin Scalia, who denied that he was overruling the precedents, merely following "original intent." He was joined by C.J. Rehnquist, Sandra Day O’Connor, and Clarence Thomas.

Anthony Kennedy concurred, providing the 5th and deciding vote. Kennedy agreed with Scalia that the issue should not be “justiciable” because he couldn’t think of a way to establish standards for defining when gerrymandering was unconstitutional, but he didn’t fully agree with Scalia, hoping that some future court could come up with acceptable standards.

The dissenting votes in favor of striking the Pennsylvania plan were J.P.Stevens, David Souter, and Stephen Breyer, and Ruth Bader Ginsburg.

 And that is the current law.

In the “off-year election of 2010, when Democrats were numbed by the effects of the 2008 crash and the cries against the bail-out and the bruising fight of the ACA (enacted in March). Republicans elected many governors and state legislatures. It was a disaster for Democrats and democracy because it was a Census year, when redistricting is required because population shifts cause losses or gains of seats in the House of Representatives.

The national Republican Party anticipated this and were ready with computerized plans for gerrymandering Democratic voters out of any possibility of controlling the House. Districts were redrawn so that all Democrats were packed in one district. Other districts were drawn so that any remaining Democrats were outnumbered by Republicans.

Of course this is made possible because African-Americans make up a large share of Democratic votes. Minority communities are often densely populated, while minorities are excluded from suburbs and rural areas. That makes it easy to take a county with a gross majority of Democratic votes result in more Republicans in Congress than Democrats.

California eventually tried to solve the confusion that resulted in radical redistricting every time the Legislature shifted power in the volatile population state. California often had Republican governors ready to veto any plan that gave Democrats an edge.

California created a Redistricting Commission that is nominally impartial, or at least bipartisan. In other democratic countries, this sort of plan has been in place for many years.

So, a new president will nominate one or more judges, possibly changing the balance of the court. Since 2004, only Breyer and Ginsburg on one side, and Thomas on the other side, remain on the court.

If the court gets to decide a redistricting case, will it be willing to impose a standard for evaluation of redistricting plans based on a principle of Equal Protection, and one person, one vote?

And then . . . they could deal with the Voter ID laws that are clearly aimed at reducing the minority vote.

Sunday, October 23, 2016

Did the democratic process work this time? Yes / No / Maybe. ...

Argument: The democratic process worked this time.

            Despite the messiness of the political process, this election cycle has done what it is supposed to do. It allowed voters to focus on issues that are at the core of democracy and governance. And it may – just may - have alleviated the biggest problem of our democracy: intransigent polarization that prohibits compromise.

            There will always be a sizeable percentage of the electorate that opposes the other side. There are about 120 million votes likely to be cast this time. (That is about 50-60% of the potential number of voters). Even in the most lopsided elections, a presidential landslide in the popular vote means getting 5% more than your opponent.

            In past wipeouts, the losing side gets 38-40% of the vote — that includes FDR in 1932, LBJ in ’64, Reagan in 1984.
            Since the 1990’s, losers average more than 45% of the vote; the margin of victory averages less than 5%.
            The result has been an electorate divided down the middle on almost every issue. That means gridlock . . . divided government, refusal to compromise, divisive rhetoric. Do nothing Congress . . . high disapproval ratings by everyone on all sides.

Although the media has found some who hate both alternatives, and some who can’t decide, and some who don’t care . . . the truth is that there is a clear choice this time and the choice might make a real difference in our future.

This election may move the needle:

            By his extreme rhetoric, Trump did us a service: he crystalized for many voters where they drew the line in their feelings about core democratic values. And many abandoned him and crossed the line to the other side . . . or at least retreated to the sidelines.
            A few Sanders followers did the same.  

            Trump may lose (and Clinton win) by a landslide. His base of supporters may prove to be smaller than feared. If so, Can this break the deadlock that causes dissatisfaction with government? Here are the reasons why it might.

            Trump’s small cadre of surrogate spinners hope for a revival of the “silent majority” that backed Nixon to victory against the “elite liberal media” and “unwashed protesters” of the time. But their time ended forty years ago. The “majority” is now reduced to a dwindling minority, overwhelmed and enervated by the rapid social changes they couldn’t stop.

            There are far fewer voters who are truly undecided by this time. Our voter turnout is always low compared to other countries. We take our democracy for granted and we fail to educate and inspire vast chunks of the population enough to take the time to pay attention. There is a direct correlation between education and voter turnout (although college students seem to be impervious to any inspiration to vote in numbers comparable to the grandparents).

            But the lengthy and loud process that has seen large vocal crowds at events, and high viewer ratings has been reflected in arguments around water coolers, at parties and family dinners all over the country for many months.

            More people paid attention in this cycle, continuing a trend that began with Obama in 2008. Sanders expanded the base of small donors that Obama had begun. And even Trump benefitted from a base of donors who might have given to evangelists instead.

Clear choices were offered this time. Despite the cries of those who complain that neither candidate deserves their vote, the fact is that a vast majority of people have seen enough differences between them to make up their minds to vote for one of them and against the other.

The primaries did the job, reflecting the mood of the people:

- In the Democratic primary, there were two clear choices. Sanders urged a more radical progressive agenda. Clinton’s program suggested more incremental progress. Generally, the perception of the radical vs. the moderate was correct. Clinton supporters argued that Sanders was proposing unrealistic, unattainable goals. Sanders people distrusted Clinton’s coziness with the established powers that they felt needed to be fought.
         These two visions and notions were rather sharply drawn and gave voters enough information to at least think seriously about their own preferences. They gave Clinton a solid win while forcing her to strongly consider the issues that Sanders raised.
            That is how it is supposed to work.

- The Republican primary exposed the weaknesses of the party’s established leaders. The Tea Party movement that emerged in 2010 to elect a sizeable cadre in Congress and took over 30 state houses showed disillusion with the failure to achieve unrealistic promised goals.

            The frustrated Right appreciated Trump’s snarly ridicule of those elected Republicans who failed to overthrow Obama and his far left agenda: Jeb Bush, Marco Rubio, Chris Christie, John Kasich, Paul Ryan, Mitch McConnell, John McCain, Mitt Romney – all pitiful compromisers in their view were victims of Trump’s attacks.

            From the perspective of conservative voters, they controlled the Senate and the House, the Supreme Court, and state governments. Yet, they could not prevent socialized medicine (Obamacare), destruction of traditional marriage, and the flow of Hispanics, drugs, and Islamic terrorists. Both Bush presidencies were disappointments: the federal government grew, the economy shrunk, jobs were lost, wars were disastrous, our enemies prospered.  
- A plurality of Republican voters chose a populist, narcissist, chauvinist, authoritarian non-politician billionaire to voice their bitterness at the changes they could not stop.

            The immigration / terrorism issues that Trump made the center of his campaign from his first speech stimulated the portion of my generation that lost every battle of the cultural wars of the last 60 years, particularly equal rights for African Americans, women, and homosexuals.

            Projections are that America in the near future will no longer be mostly white. Diminishing white male Christian dominance is a subject for panic for that demographic.    

            This may be a last stand for that aging bloc.  

- Exposure of Trump’s flaws during the long, long campaign has peeled away huge chunks of Republican voters.

            First, his vicious attacks on primary opponents eliminated Bush supporters, Kasich backers, even Cruz followers. Koch Brothers and other traditional GOP deep pockets backed off. Of course, he negated any possible inroads into the Democratic hold of any minority voters.

            He lost support from GOP security / military experts with his fixation about Putin, his impulsive shrugs about nuclear proliferation, and his rash discounting of NATO as if it was a losing business. His cruel sniping at “loser” McCain as a captive, and at a Muslim father and mother of an American war hero offended many patriotic veterans who should have been his most loyal backers.

            Of course, his biggest loss is among almost all women: whatever age, ethnic identity, working or not, educated or not, Christian or not.

            He couldn’t hide his blatant sexism.
            It undermined any claim he might have made of moral superiority over the Clintons.   
        It exposed his outdated notion of manhood, one that even conservative women with hard drinking dirty joking husbands could not abide.

The choice between Trump and Clinton becomes very clear.
 The debates produced a clear result. All polls showed that voters favored Clinton by about 2 to 1. That is an enormous margin, especially in a country that has been so divided for so long.

The debates received record viewing on all media sources for all age and gender groups. In a campaign where fears of enthusiasm gaps and voter suppression are rampant, this fact is encouraging.

Of course, Trump is the main reason for the heightened public fascination with the election news and entertainment. He is his own reality show, soap opera, talk show, stand-up comedy act. He moves the ratings needle for cable infotainment like no one. He has received billions in free airtime from them, and they probably think it was well spent.

The possible outcome:

- Trump may lose the popular vote and electoral college vote by a landslide.
- If Clinton wins big, she may assume she has a mandate for her program.
             BUT: Bill Clinton thought he had a mandate for change in 1992. He had urged universal health care in the campaign and when he won, he thought it was what the voters wanted. He spent precious political capital losing that fight that was led by Hillary.

- Democrats may win control of the Senate, and reduce the GOP House majority.

            BUT: The seats Republicans lose in Congress will probably be those of former “moderate” or at least less extreme conservatives (like Ayotte of N.H.). This could stiffen the intransigence against any compromise.

The optimistic view:

Proof that the Tea Party core is not as potent as it was thought to be (just as the past movements like Christian Coalition showed weakness) may embolden Paul Ryan to compromise on some issues.

Clinton’s centrism (given a mandate) may permit her to deal with Ryan, McCain, Graham, Flake, and a few other rational members of the loyal opposition. The first and most doable issue might be immigration reform. Borders and a path to citizenship can be worked out in a comprehensive form without frittering all her capital.

            The advantages to both sides of settling this issue once and for all are so obvious that it seems that it should be one issue that could be decided, once Trump’s extreme rhetoric is relegated to an impotent minority on the extreme right.

            Whether Ryan has the courage to risk alienation of even this diminishing constituency is an open question.

Once having compromised on this issue, he will have to appear tougher on others, but he can argue a net gain by re-claiming a portion of the growing Hispanic vote for the party.

Another area ripe for compromise is criminal justice reform. There is a consensus for change from the Draconian sentences and prison overpopulation, a return to the emphasis on rehabilitation, and drug programs. Legalization of marijuana is on the table – if the state experiments in Colorado and California prove regulation and taxation to be feasible

Clinton will face a challenge from her left on important economic issues: Taxes, corporate regulation, trade. The wish list includes college financial relief.

            Republicans will fight these changes, but probably with more traditional arguments. The Tea Party intransigence that forced government closures proved to lose votes for the party and the election gives rational leaders the stronger argument.

            Ryan, the self-proclaimed Budget maven is going to want to fight for balanced budget, reduced debt, and the other traditional GOP issues. Warren and Sanders are going to fight the good fight in Congress over this and Clinton is going to have to figure what she can get away with.
            It will be a stern test of Clinton’s claimed negotiation skills and experience.

Foreign Policy

In foreign policy, Trump’s contribution has been to crystalize the public’s recognition of Putin as a real threat to American interests in the middle east and eastern Europe.
            The cyber war with Russia will heat up and a consensus will emerge to seal the leaks for security reasons.

            Clinton will have trouble with her left on foreign trade treaties and humanitarian efforts in the Middle East and Africa.

            By inauguration day, the Mosul offensive may have progressed well, pushing ISIS out of power in the city and reducing the “caliphate” to a shell of its former pretensions. Syria will be the next battleground and provide the biggest foreign policy challenge to the new administration.

            The foundation laid by Obama: Shiites, Kurds, Syrian rebels, Turks, and US technology, air power, advice, coaching, intel, rangers . . . rather than massive US ground forces . . . should allow Clinton some leverage against Assad & Putin in negotiations for an end to the crisis.

            Clinton will have to deal with North Korea, Israel, and unforeseen crises. Whether she will prove to be the hawk / interventionist that liberals and libertarians fear or whether she will be a wise consensus builder, we can’t tell.

            The point is that the voters this season were presented with clear choices and enough evidence to decide their future. 

Friday, October 07, 2016


"The cornerstone of democracy rests on the foundation of an educated electorate." . . . “An informed citizenry is at the heart of a dynamic democracy.”- Thomas Jefferson

I just received my “Official Voter Information Guide” for the November 8, 2016 election. It is 220 pages of print about the ballot propositions, which are numbered 51 through 67. That is 17 proposals for changes in California law.

The changes included the extremely serious — whether to the eliminate the death penalty (62) or facilitate quicker executions (66); place more limits on firearms (63); modify the parole system to emphasize rehabilitation (57) . . .

. . . The usual range of tax measures: school bonds (51); medi-cal hospital fee (52); revenue bonds (53); tax extension (55); cigarette tax (56) . . .

A couple of measures that are controversial for special interest groups: English proficiency (58); political spending by corporations (59); state prescription drug pricing (61); . . .

And a few that involve social policy: marijuana legalization (64); adult film performer condoms (60); carryout (grocery) bag charges (65); and ban on plastic bags (67).

The book which was prepared by the California Secretary of State, contains a 9 page “Quick-Reference Guide” that sums up each proposal in a paragraph, with short arguments for and against. If that is not enough — and it certainly is not, considering the complexity and gravity of many of these measures — there follows (page 18-113) the Legislative Analyst’s supposedly objective estimate of the fiscal effects of each measure; detailed arguments pro and con by supporters and opponents.

Then there are a few pages giving an “Overview of State Bond Debt” and one with “Candidate’s Statements” by Kamala Harris and Loretta Sanchez, running for the Senate.
Page 118-222 includes the “Text of Proposed Laws,” the actual language of the statutory  and constitutional changes suggested by each proposition. It is in the fine print and legalistic language we lawyers love to use.

SO, this is democracy at its rawest. The People are asked to decide issues directly — no legislators or committees or councils intercede. In the Progressive Era during the early years of the 20th century, this process was considered to be a necessary reform of a corrupt political system. For many years, federal, state and local legislatures, the judiciary, and executive offices, all were controlled by an elite group of power brokers: railroad and oil magnates, real estate tycoons, and political machines.

The chosen route to progressive reform was the Referendum, Initiative and Recall, that sidestepped the professionals and put issues directly to the voters.  

When I first arrived in California in the 1960’s, the processes mostly had fallen into disuse. The three branches of the political system seemed to be effective; it was an era of economic and population growth. The states infrastructure was new and a model for the country. Same with the education system — state colleges and universities were considered tops (and mostly tuition free). The El-Hi schools around the state were highly rated. Funding for the education system was based on local property taxes, on the social theory that local homeowners had a stake in the education of local residents. In the growing state, property values were rising each year.

But that caused a problem. A fellow named Howard Jarvis had been around for many years. He was one of many considered “tax kooks” who were always whining about the rise in taxes. Jarvis and others had often pushed for laws to limit taxes and spending. He got nowhere with the legislature and turned to the initiative process. Many times he was unable to get the necessary signatures even to get on the ballot.

But as real estate continued to boom, home prices soared, and as a result, people who had bought a modest home years before now found themselves in houses valued many times more, and had to pay taxes based on the theoretical market value.

In 1978, Proposition 13 passed with a two-thirds majority. It permanently altered the State Constitution to limit real estate taxes to less than 3% of market value.    

[Over time, the results have been disastrous. California schools have had to scrounge for funding. The state’s infrastructure continues to decay. In personal terms the inequity is shocking. If you bought your home before 1978 and stayed in it, you pay the same minimal property tax although the value of your house has skyrocketed. Your new neighbor who just bought the house next door must pay many times the property tax you do.]

The floodgates opened after Proposition 13. It has been used for many other things than tax reform. Due to a series of measures that constituted a wish list for prosecutors, draconian criminal laws are now in place. The result is the most crowded death row in the nation, the largest prison population in the American history, and a justice system that makes it more likely to convict the innocent.

The state legislature is considered by many to be a sick joke. Term limits — Prop140 in 1990 — eliminated anyone who understood how laws and government worked. It put the state government firmly in the hands of lobbyists and powerful interest groups who had all the information at their fingertips and the passion to push their agendas. In 2012, another initiative (Prop 28) had to be passed to reform the reform by extending limits to 12 years in offices.

One look at the 220 page book makes the problem clear. People don’t understand what they are voting for. They certainly don’t read this book. For most people their first view of the measures is while examining their ballot while voting. That is why proponents of measures take great pains in titling their proposals: “The Victim’s Bill of Rights” is one of my favorites. Who could possibly vote against that, no matter what it contained (including things you might not approve if you read it).

That leaves it up to advertising to “inform” the electorate. The 30 second ads that inundate the air and now social media prod us one way or the other with dire warnings or utopian promise for each proposal. If you are quick and sharp-eyed you might see the underwriting in fine print . . . “paid for by Americans For . . . (or against) . . . ”

Here’s a sample of the current pushers from the Quick-Refence Guide:
Many begin “Californians for . . .
Eg: “. . . for Quality Schools”
“. . . to Protect Local Control”
“. . . For and Effective Legislature”
“. . . For Hospital Accountability . . .”
“. . . For Budget Stability”
“. . . For English Proficiency”
“. . . for Lower Drug Prices” vs. “. . . Against the Deceptive Rx Proposition”
“. . . Aganst Waste”

At the end of the legislative analyst’s pages for each measure, web sites are named that might lead to the discover the “top 10 contributors” to the measures.

These give you clues to aid your decision making. For example, Prop 53, “Revenue Bonds,” requires statewide voter approval to sell more than $2 billion in bonds. Supporters call it the “Stop The Blank Checks Initiative.” The “Howard Jarvis Taxpayers Association” is one of its spokesgroups. Opponents include “Firefighters” and “Sheriffs” Associations who want continued local control over funding for infrastructure and capital improvements.

The arguments pro and con (and rebuttals to each) are included in mostly conclusionary mini-essays.

Generally, you are given enough information to at least get a sense of who is pushing and who is pulling, and why. But is it a better way to decide this issue than representative government?

If this was before the state legislature (Senate and Assembly) committees made of elected representatives of the voters from each community in the state would consider it by hearing and questioning witnesses for and against, comparing the evidence, fitting it into the other fiscal and policy considerations they deal with. They would ask constituents for opinions, would see where the money is most needed and where wasted.

That is how it is supposed to work. We know that it hasn’t lived up to ideals, not by a long shot. But look what we have now. We are at the mercy of the manipulative nature of advertising by the very special interest elites that the Initiative process was intended to protect us from. It adds to the polarization of voters: automatic knee-jerk reaction: against any taxes or spending for anything . . . and then complain about how education fails and the potholes and the broken water lines . . . basing justice reform on anecdotal evidence — a drug dealer gets off in Sacramento . . . so change the state law that has worked for years and incarcerate a generation of young men with no hope . . . until we might pass another initiative when we finally wake up.