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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 rod@usresistnews.org.

Latest Civil Rights Posts

 

Is The Equal Rights Amendment (ERA) On The Verge Of Being Ratified and Added To The U.S. Constitution?

Is The Equal Rights Amendment (ERA) On The Verge Of Being Ratified and Added To The U.S. Constitution?

Policy Summary
In 1923 Alice Paul, a member of the National Women’s Party, drafted and submitted to the U.S. Congress the first version of the Equal Rights Amendment (ERA). The intent was to guarantee in the Constitution equal rights for women alongside men but the amendment was not approved at that time. In 1943, Ms. Paul redrafted the text of the amendment. In October 1971, the constitutional amendment with the 1943 text was introduced in the House of Representatives where it passed by a vote of 354 – 24. The amendment was then introduced in the Senate and passed by a vote of 84 – 7. After passage by both houses of Congress, the Constitution required that the amendment be ratified by three – fourths of the state legislatures in order to be added to the Constitution. This meant that thirty – eight (38) states would need to vote for the amendment. The amendment was sent to the states in 1972 but with a seven – year deadline for ratification. Between 1972 and the 1979 deadline thirty – five state legislatures voted to ratify the amendment. The deadline was later extended by Congress to 1982 but by that time the final tally of states ratifying the amendment remained at thirty – five, three short for the amendment to be enacted.

In March 2019, the North Dakota Legislature introduced a resolution that sought to rescind their state’s approval of the amendment in 1975. The resolution was approved in the North Dakota House by a vote of 67 – 21 but was defeated in the North Dakota Senate by a 24 – 23 vote. The vote in North Dakota comes on the heels of two additional states voting to approve the ERA recently – the Nevada Legislature voted to approve the amendment in March 2017 and Illinois in May 2018. The addition of Nevada and Illinois brings the total of number of states approving to thirty – seven, one shy of the thirty – eight required. LEARN MORE, LEARN MORE, LEARN MORE

Analysis
The ratification of the Equal Rights Amendment raises a number of interesting legal and procedural issues that still need to be sorted out. The U.S. Constitution in Article Five has laid out the appropriate procedures to introduce, consider and ratify amendments to the constitution, which were properly followed by the Equal Rights Amendment. However, this amendment has run into two issues – whether a deadline and subsequent extension for ratification is within Congress’ power and whether states have the power to rescind a prior ratification of the amendment.

As to the issue of a limited time period and subsequent extension of that time period, there is no question that there was an initial seven year deadline for the states to ratify. But when it appeared that not enough states would ratify before the expiration of the seven – year deadline, Congress went ahead and granted an additional three – year extension. What Congress can do to overcome this roadblock is to simply vote to remove the deadline for ratification. And this is exactly what Congress has taken steps to do as both the House and Senate have introduced resolutions in 2019 to remove the ratification deadline from the ERA ratification process. There clearly is support in Congress to have additional states debate and vote on the amendment.

The final issue of whether a state can rescind a prior ratification of the amendment also raises a novel question of law. While the Constitution is silent on this point, making it ripe for litigation, Linda Coberly of the ERA Coalition Legal Task Force points to historical and legal precedent that recissions of prior ratifications have not been counted as was the case in a prior nineteenth century amendment ratification battle. It also brings up a contradiction that was illustrated in the recent attempts in North Dakota to rescind their ratification. If opponents of the ERA point to the deadline issue as making it impossible to have a future state ratify the ERA now, then why did North Dakota go to the trouble to vote to rescind their ratification from 1975? The actions in North Dakota seems to have implicitly acknowledged that the Equal Rights Amendment is on the verge of being ratified and politicians in North Dakota wanted to get ahead of the issue while they believed they had a chance to do something.

Whatever the legal and procedural issues are at play in the long battle to approve the Equal Rights Amendment it is becoming clear that there is widespread support for the amendment. Nevada and Illinois have recently voted to ratify. And Congress, with their attempts to extend the deadline along with Representative Carolyn Maloney’s (D-NY) symbolic introduction of the amendment in Congress this year, shows that the struggle for gender equality is still ongoing. It is a battle that many people still want to fight for nearly one hundred years after Ms. Alice Paul delivered the Equal Rights Amendment to Congress for the first time. LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources:

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

Photo by Yeo Khee

President Trump Issues Duplicative Executive Order to Cater to Voting Base

President Trump Issues Duplicative Executive Order to Cater to Voting Base

Policy Summary
The First Amendment of the U.S. Constitution provides “Congress shall make no law…abridging the freedom of speech.” On March 21, 2019 President Donald J. Trump issued Executive Order 13864 titled “Improving Free Inquiry, Transparency and Accountability at Colleges and Universities.” The stated policy in the order is “to promote free and open debate on college and university campuses.” In order to help implement this stated policy, covered federal agencies shall take appropriate steps to ensure that institutions “foster environments that promote open, intellectually engaging and diverse debate” by “compliance with the First Amendment for public institutions and compliance with stated institutional policies regarding freedom of speech for private institutions.” LEARN MORE

Analysis
Professor Jessica Levinson of Loyola Law School has called President Trump’s executive order duplicative of current law and is nothing more than a symbolic act. Caroline Mala Corbin in an opinion piece in the Washington Post said that the order creates no new protections for campus speech and simply restates a college or universities’ current obligation under federal law. So why did President Trump go to all the trouble to put forth an executive order that he himself called a historic act?

This executive order is an attempt to re-frame the narrative and push the story that there is a crisis on college campuses regarding free speech and to appeal to President Trump’s conservative and religious voter base. Jeffrey Adam Sachs issued a report from the Niskanen Center that studied the claims of a free speech crisis on college campuses and found that the evidence does not support the claim. Instead it found that there was no statistical difference in older and younger generations when it analyzed and examined their support for free speech. What is likely at play here is President Trump trying to incite his conservative and religious fanbase that their ideas are under attack from left – leaning forces in society, most notably institutions of higher learning. However, his use of free speech to court this voter base comes fraught with other complexities as many of the private and Christian education institutions he caters to have been some of the most frequent violators of the Free Speech Clause under the First Amendment. Jerry Falwell, Jr. of Liberty University has had a number of incidents where his actions have raised eyebrows as to whether he truly supports free speech on campus and censorship issues with the student newspaper. Mr. Falwell is a staunch supporter of President Trump and seems to have influenced the President that conservative ideas are being attacked on college campuses. But this is simply not the case as studies have shown. The executive order that the President signed is nothing more than a weak attempt to give religious universities a rallying cry for ideas that may not be in the mainstream of American society. The idea of pushing, promoting and protecting the idea of free speech on college campuses is a noble goal. It would have been better for President Trump to offer real solutions and real change instead of a watered down version that requires colleges and universities to do something that they are already required to do. LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources:

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

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Trump Administration Proposal To Use Social Media To Confirm Disabilities

Trump Administration Proposal To Use Social Media To Confirm Disabilities

Policy Summary
On August 14, 1935 President Franklin D. Roosevelt signed the Social Security Act which initiated the program in the United States. In 1956 President Dwight D. Eisenhower signed into law amendments to the Social Security Act which added disability insurance benefits to the Social Security program. This week the New York Times and other news outlets have reported that the Trump Administration is outlining a plan to use social media accounts to confirm a person’s disability in order to deny future payment of benefits to the recipient. However,  of March 2019 no plan has been formally introduced or announced. LEARN MORE, LEARN MORE

Analysis
While details of the proposed plan by President Trump are not known at this time it is important to note what exactly is disability insurance under the Social Security program and the available benefits. According to the Social Security website disability insurance pays benefits to persons and members of their family if they are “insured” – meaning a person has worked long enough and paid the Social Security taxes through the years. Other factors that are taken into consideration are a person’s medical history, line of work and other forms of income. The program is designed to give persons who have paid their taxes into the program a safety net of payments for a limited time should the person suffer a physical injury that would prevent them from continuing on in their job and earning income on their own.

However, the program also  has been susceptible to fraud. According to the Social Security Administration it paid out $3.4 billion in benefits to people who did not deserve it in 2018 alone. The problem has been ongoing for so many years that three new disability investigations units were established in the Office of the Inspector General for the Social Security Administration in September 2018. While no one doubts that disability fraud is a major problem with significant financial implications, the potential solution of social media spying to confirm a person’s disability raises more red flags and questions than it purports to solve. Social media posts and pictures are not always accurate indicators of a person’s physical condition. And allowing the government to use social media posts to make their case against a person may not simply be restricted to Social Security disability cases in the future. The door would open  for any government agency to rely on social media posts to take a position against a person in any number of cases. What is needed is a set of safeguards to ensure that the government does not have free reign to sift through whatever they want on a person’s social media account. This could include the use of warrants, policies that limit what the government could look at and even restrictions on the time periods that posts and pictures could be made available to the government – say, if a person applied for disability insurance in 2015 then the government could not look at posts and pictures from prior to 2012. While there are many issues to be sorted out in this potential Trump Administration policy, we must wait to see if a plan is put forth before there can be any discussion of details and possible suggestions for improvement. LEARN MORE, LEARN MORE

Engagement Resources:

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Movement To Give Presidential Candidates All of a State’s Electoral College Votes Based on Nationwide Popular Vote Gaining Steam

Movement To Give Presidential Candidates All of a State’s Electoral College Votes Based on Nationwide Popular Vote Gaining Steam

Brief #79—Civil Rights

Policy Summary
The National Popular Vote Interstate Compact (NPVIC) is an affiliation of U.S. states that has put together an agreement that has the potential to enact sweeping changes in future elections of the U.S. President.

The current system in place as put forth by the U.S. Constitution dictates that the President and Vice – President, who run on the same ticket, will be elected if they receive a majority of the votes from the Electoral College. With 538 members in the Electoral College 270 votes is the minimum number needed to win. Members of the Electoral College are selected by the states according to the total number of a state’s congressional delegation (number of senators (2) plus number of representatives). By custom, states have permitted the political party of the presidential candidate who wins the popular vote in their state to select the electors for that state. If the Republican nominee for President wins the popular vote in the state, then the Republican list of electors is chosen to vote for the state in the Electoral College. And, if the Democratic nominee for President wins the popular vote in the state, then the Democratic list of electors is instead sent to the Electoral College to cast the state’s votes.

What the NPVIC aims to do is to change the way electors are selected. National Popular Vote bills have been introduced in a number of states and will now commit a state to award its slate of electoral voters to the presidential and vice – presidential ticket who wins the popular vote nationwide regardless of the results in their individual state. As of March 2019, eleven states and the District of Columbia have passed National Popular Vote bills accounting for 172 electoral college votes, 63.7% of the total needed to win the presidency. LEARN MORE

Analysis
The National Popular Vote movement has been around for more than a decade but it has begun to pick up steam recently. The immense unpopularity of President Donald J. Trump and his administration and his stunning elevation to the presidency despite losing the popular vote to opponent Hillary Clinton has called into question the usefulness of the Electoral College and whether citizen votes for President really matter. The sense was that if changes to the Electoral College and the process in electing the president were going to be undertaken it would be an unlikely endeavor given the difficulties in marshaling support for a constitutional amendment.

However, Article 2, Section 1, Clause 1 of the U.S. Constitution specifically states that state legislatures have the power to select the electors for the Electoral College. Eleven states and the District of Columbia have now gone ahead and have passed National Popular Vote legislation that has been signed by each state’s respective governors. Once more states approve legislation and reach the 270 electoral votes threshold, the agreement to award each state’s electoral votes to the winner of the popular vote in a presidential election will go into effect. While there has been some pushback, notably from Republicans, it is interesting to note that this movement is gaining wide support. The total number of electoral votes from states that have approved these bills is 172 which is already more than half of what is needed to win the presidency. And, support has come from both small and large states and from across the country. D.C. and Vermont with 3 electoral college votes have signed on. Washington with 12, New Jersey with 14 and Illinois with 20 have also come on board. And two of the largest states in terms of electoral college votes, New York with 29 and California with 55, have signed laws granting their electoral votes to the nationwide popular vote winner.

This week, Colorado’s governor Jared Polis has stated he will sign the bill passed by the Colorado Legislature to join the compact and become the 12th state to award its electoral votes in this manner. This is a significant addition to the compact and will bump up the electoral votes under the compact to 181, only 89 electoral college votes short of 270. Additionally, another 16 states introduced National Popular Vote bills in their legislative houses this year. While there is no guarantee that all those states will pass those bills this year, it does appear that the movement for the election of the U.S. President align with the results of the nationwide popular vote is making significant headway and could become the determining and dominant factor affecting the 2020 and 2024 presidential election. LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources

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

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Supreme Court Greatly Limits Controversial Civil Asset Forfeiture Laws

Supreme Court Greatly Limits Controversial Civil Asset Forfeiture Laws

Brief #78—Civil Rights

Policy Summary
Tyson Timbs of Indiana was arrested for selling drugs to an undercover officer. The value of the drugs sold was just under $400. Mr. Timbs eventually pleaded guilty and was sentenced to house arrest, five years of probation and fined $1,200. Mr. Timbs paid the fine. However, the State of Indiana, relying on the state forfeiture law, confiscated Mr. Timbs $42,000 Land Rover vehicle saying that the car was used to transport the drugs which subjected it to confiscation by the state. Mr. Timbs filed suit against the state arguing that the confiscation was a violation of the U.S. Constitution’s Eighth Amendment prohibition against excessive fines. Mr. Timbs won at the trial court and Indiana Court of Appeals level. However, the Indiana Supreme Court reversed and the case was eventually appealed to the U.S. Supreme Court. The Court heard the case and decided unanimously that the Eighth Amendment’s prohibition against excessive fines applies to state actions and sent the case back down to be heard again; thereby letting states continue to use civil asset forfeiture laws but likely with different motivations after this case. LEARN MORE

Analysis
While the case decided at the Supreme Court is focused on the constitutional issues of the Eighth Amendment, the bigger question is the future of civil asset forfeiture laws in the United States. Civil asset forfeiture is controversial because the basic framework of the law permits law enforcement officers to take property if they suspect the property was used to commit a crime. Property owners do not have to be charged or convicted of a crime for the officers to take the property. There is a great danger in having this kind of scheme because it allows persons to be deprived of property without any legal safeguards to ensure that the taking is warranted. Yet, many states have civil asset forfeiture laws on the books because they want to use the proceeds of a crime and turn it around and maybe do something positive with the property. However, this rationale has been skewed because some states now permit the assets to be given to law enforcement agencies to help fund their departments. This creates a warped incentive for law enforcement departments who can simply decide to take what they “suspect” is property used in a crime and have it used as funding for their departments. This in turn leads to increasingly excessive takings of property of defendants.

Defendants are in a tough spot here because some states have required that defendants prove they have not committed a crime in order to get their property back. This is contrary to the principle of “innocent until proven guilty.” Not only that but because defendants have to prove that they did not commit a crime they are deprived of the use of their property, such as a car in Mr. Timbs case, for the time it takes to prove in a court of law that they are not guilty of the crime, for sometimes months and even years. In the context of the U.S. Constitution’s Eighth Amendment’s prohibition against excessive fines, this shows that under civil asset forfeiture laws defendants are being punished far out of proportion of what routine punishments would have been had the defendants even been convicted of a crime. Some defendants are never even charged let alone convicted and they still have to go to court to prove their innocence. If a defendant is ordered to pay a fine in accordance with the state law governing their crime, then the loss of their property seized is simply additional punishment added on top of what the state law requires. There is simply no regard to having punishments meted out in proportion to the crime committed. Taking Mr. Timbs $42,000 Land Rover in addition to a $1,200 fine for a $400 drug sale is clearly excessive. While civil asset forfeiture laws were not outright banned by the Supreme Court case it is clear that if these state programs are to have any usefulness going forward it is going to have to abide by the constitutional limits and limit the takings and keeping of defendants property to a reasonable and proportional limit. LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources:

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.

Federal District Court Judge Rules For Twin Immigrant Boys of Same – Sex Couple in U.S. Citizenship Case; Federal District Court Ruling

Federal District Court Judge Rules For Twin Immigrant Boys of Same – Sex Couple in U.S. Citizenship Case; Federal District Court Ruling

Policy Summary
Andrew and Elad Dvash-Banks are a same sex – couple and also the parents of twin boys. Andrew is a United States citizen and Elad is an Israeli citizen and both men were residing in Canada when they married in 2010. (Gay marriage was allowed in Canada at the time and not the United States until 2015 when the U.S. Supreme Court decided Obergefell v. Hodges, the Supreme Court case recognizing the validity of same – sex marriages). The two men decided to undergo assisted reproductive technology to conceive children. Donor eggs were used and with sperm from each of the men the medical procedure conceived a fetus which was implanted in a surrogate mother. The fetus resulted in twin boys named Aiden and Ethan who were born minutes apart in 2016. Andrew and Elad are listed as the legal parents of the boys and continue to raise both boys to this day.

Andrew and Elad soon went to the U.S. Consulate in Toronto Canada to apply for U.S. passports for their sons. However, because only Andrew is a U.S. citizen and Elad is not the Consulate asked for DNA proof that both boys were related to Andrew. The boys were tested and because of the contribution of each man to the reproductive medical procedure Aiden was DNA related to only Andrew and Ethan was DNA related to only Elad. Since Elad did not have U.S. citizenship, Aiden was granted U.S. citizenship and a U.S. passport while Ethan was denied. The two men then brought suit in the federal district court for the Central District of California challenging the consulate’s decision to deny Ethan birthright citizenship and a U.S. passport. LEARN MORE

Analysis: This is a unique case in that it is, on one side, about the determination of American citizenship for children born abroad, which is a hot topic in the current political environment that is debating the future contours of immigration to the United States. The basic framework for citizenship starts with children who are born on U.S. soil – if born anywhere in the U.S. the child has U.S. citizenship. If a baby of two American citizens is born abroad to two parents who are U.S. citizens, then the baby also acquires U.S. citizenship. Finally, if one parent is a U.S. citizen and one a foreign national, as in the case of Andrew and Elad, a baby born abroad is a U.S. citizen if the U.S. parent had lived in the U.S. for five years sometime in the past which Andrew had done. This should have qualified both twin boys for U.S. citizenship. However, the consulate erred when interpreting the Immigration and Nationality Act and when it required a DNA test of both boys to prove familial relationship to Andrew. Biological and DNA tests of children are only required of babies born abroad when the baby is born out of wedlock. That was clearly not the case here as Andrew and Elad had been validly married in Canada and were listed as the legal parents of both boys.

What likely occurred in this case was that the State Department was dragging its feet in updating these immigrant and citizenship policies because, from another view of the case, their opposition to same – sex marriages and also opposition to immigrants having an easier avenue to U.S. citizenship. Aaron C. Morris, the Executive Director of Immigration Equality, has stated that blood or DNA proof of a biological connection of a child and a parent is not required for babies born abroad of even heterosexual couples and that the U.S. Government has lost three cases litigating this very issue since 2000. By creating a difficult situation for Andrew and Elad and their children, the Government probably wanted to have their day in court and hopefully get a court to rule that immigrants born abroad would require more definite proof they are U.S. citizens then currently required. This would certainly be a boost to a Trump Administration who is skeptical of more immigrants coming to the U.S. And it could have also helped the Trump Administration if the court could have ruled against same – sex couples and excluded those couples from additional benefits of U.S. citizenship.

But Judge John F. Walter’s ruling that both boys have had U.S. citizenship from birth demonstrates that immigrants will not be denied birthright citizenship by simply placing onerous, unnecessary and additional scientific burdens on them to prove their right to citizenship. Judge Walter pointed out that DNA and blood proof in cases like Andrew and Elad are simply not required under the law. Judge Walter issued a very good ruling on that issue alone but he may have also helped the cause of LGBT rights by showing that same sex couples in court will be treated on an equal footing in the law with traditional couples. It is an implicit message but the message that LGBT couples can bring their claims to court and be treated equally and fairly in a court of law as any other couple is simply another bright spot in Judge Walter’s ruling. LEARN MORE, LEARN MORE

Engagement Resources:

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

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Democrats Introduce Massive Election Reform Bill Aimed At Countering GOP Voter Suppression Tactics

Democrats Introduce Massive Election Reform Bill Aimed At Countering GOP Voter Suppression Tactics

Brief #76—Civil Rights

Policy Summary
On January 3, 2019, Representative John P. Sarbanes (D-MD) introduced in the House of Representatives bill H.R.1 known as the For The People Act of 2019. It was the first bill introduced by the new Democratic controlled House chamber and it signaled many of the issues that would be prioritized by the Democratic Party. The massive 571 page bill contained a long list of new bills that covered numerous topics – voting rights, campaign finance, election security, super – PAC’s (Political Action Committees) as well as a code of ethics for the Supreme Court and a bill requiring future presidential candidates to release 10 years of tax returns among many other topics.

Specifically to voting rights, the proposals are numerous. The bill proposes requiring online voter registration, automatic voter registration, requiring same – day voter registration for federal elections, mandatory independent voting commissions to draw congressional districts, limitations on voter purges, a paper trail on voting systems to permit audits and even a ban on a state’s chief election officer from campaign activities if connected to a federal office. LEARN MORE

Analysis: The For The People Act of 2019’s voting reform proposals are some of the most significant voting reforms put forth in a long time. The reason why these proposals are now front and center is because they are a reaction to voter suppression efforts that have been underway for much of the last decade with many of the obstacles enacted by the GOP leadership in a number of states.

The proposal to require automatic registration is unique because it automatically registers a voter once they turn 18. If the voter does not want to be registered to vote than he or she must take action to opt out. This directly counters GOP efforts to bar voters based on “erroneous” registrations or to keep people out if the state uses an “exact match” voting registration system. The mandatory online voter registration also counters these kinds of GOP voter suppression efforts because registering online will be able to catch mistakes immediately and notify the voter right away. In some states, if there was a mistake on a paper registration,  the state had no duty to contact the voter and could simply bar the voter from registering. The proposal to limit voter purges closely tracks this line of thinking because it is a proposal that gives the voter more control over their right to vote instead of having the state have final control over the voting rolls so much so that fraudulent and politically motivated decisions are being used by the state to decide who remains an eligible voter.

The proposal requiring same – day voter registration is also aimed at eliminating one of the tactics that the GOP have embraced to bar voters but also sends a message that voters should not and will not be turned away. Same – day voter registration has often been criticized because states claim they do not have enough time to validate a voter’s registration but this excuse rings hollow because a state can invalidate a ballot after the election if fraud is later detected. They would still be able to do this even if a voter who registered on the same day cast a ballot so there should be no problem in permitting the voter to register and vote on the same day.

Finally, the two proposals pushing for independent voting commissions to draw congressional districts and banning a state’s chief election officer from campaign activities speaks to trying to eliminate as much as possible the ugly partisanship that has become much more common in American politics today. The independent voting commissions are groups tasked with drawing congressional districts instead of having state politicians do it themselves. Politicians at times draw the districts with the goal of keeping a specific political party in power with the result that elections are not truly representative of what the voting constituency wants. The independent voting commissions would keep political partisan considerations out of the business of drawing electoral districts. And the last proposal is a common sense proposal and also a nod to the questionable election of Brian Kemp as Governor of Georgia in 2018. Mr. Kemp was at the time a candidate for Governor and also the chief election officer for the State of Georgia, creating a conflict of interest where his interpretation of rules could have swayed the election in his favor.

There are other voting proposals in H.R. 1 – making Election Day a federal holiday to give voters more time to vote, permitting colleges and universities as places to register to vote – but the proposals discussed are the most prominent. The bill has now been referred to the House Committee on House Administration which has jurisdiction over federal elections where hearings have been scheduled but have not begun yet. These are important proposals that are a good counter to the obstructionist tactics to bar voters that the GOP have employed in recent years and should be given strong consideration in order to strengthen the American political process. LEARN MORE, LEARN MORE

Engagement Resources:

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.

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Federal District Court Issues Ruling Prohibiting Citizenship Status Question on 2020 National Census Questionnaire

Federal District Court Issues Ruling Prohibiting Citizenship Status Question on 2020 National Census Questionnaire

Brief #75—Civil Rights


Policy Summary

Article 1, Section 2 of the United States Constitution states “Representatives…shall be apportioned among the several States…according to their respective numbers. The actual Enumeration shall be made…within every subsequent term of ten years.” This constitutional command is the basis for the United States to hold a census to determine the population of all persons residing within the borders of the United States. The last decennial census was held in 2010 and the next one is scheduled for 2020.

In 2017, Wilbur Ross was confirmed as the Secretary of Commerce. The Secretary oversees the Department of Commerce which includes the United States Census Bureau, the agency that oversees every decennial census. In March 2018, Secretary Ross issued a memorandum instructing the Census Bureau to reintroduce a question about United States citizenship status on the 2020 questionnaire. The citizenship question had not appeared on the questionnaire since 1950. In the days after Secretary Ross’s memorandum, multiple lawsuits were filed to challenge the placement of the citizenship status question on the upcoming questionnaire of the 2020 census as well as other procedural issues related to a possible trial on the issue. In the United States District Court for the Southern District of New York, multiple cases against the Department of Commerce were consolidated and the case went before Judge Jesse Furman. In a ruling handed down on January 15, 2019, Judge Furman prohibited Secretary Ross’s order to add the citizenship question to the 2020 census questionnaire. LEARN MORE

Analysis
Judge Furman’s lengthy 277 page ruling explaining his decision to prohibit the citizenship question from being added to the 2020 census questionnaire is not just a rebuke to the Trump Administration’s anti – immigrant rhetoric but to the methods of Secretary Ross and the general chaotic nature of the Trump Administration. Judge Furman thoroughly criticizes Secretary Ross’s methods in trying to push through the addition of the citizenship question. Judge Furman writes that the Secretary “failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices.” What the judge was pointing out was that Secretary Ross had no respect for the laws, rules and procedures already in place and seemed intent instead on pushing through an outcome that he had already predetermined himself – that a question inquiring into a person’s citizenship should be added to the 2020 census questionnaire. Taken in the context of President Trump’s anti – immigrant rhetoric and the Administration’s tendency to blame immigrants for being habitual lawbreakers when they enter the United States, the ruling from Judge Furman highlighted the uncomfortable fact that lawbreakers are not just immigrants but can easily be found in members of President Trump’s own administration.

The ruling does not explicitly rule that the citizenship inquiry on the questionnaire is unconstitutional but it has helped to encourage more debate on whether the United States should ask such a sensitive question especially in light of a President who is currently trying to take a hard – line on immigration issues. The question is seen as a way to suppress new immigrants from participating in the democratic process because immigrants have reason to fear government agents asking too many questions about their legal status. Some persons may simply choose not to fill out any question on the questionnaire at all and might simply just ignore it. This can have a negative effect on the communities where a person lives because an inaccurate count of people living in certain areas can lead to a misallocation of federal funds and resources (safety and health) and lead to errors when drawing state and federal congressional districts. Having the citizenship question on the 2020 census questionnaire will instead likely deter some people from filling out the form out of fear. A better approach would be to leave the citizenship question off the questionnaire, as this had been the norm in the U.S. since 1950, the last time the citizenship question was even on the national census. LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources:

American Civil Liberties Union (ACLU) – blog post commenting on court ruling prohibiting census citizenship question.

National Association of Latino Elected and Appointed Officials (NALEO) Education Fund – non – profit group website monitoring census issues as they affect Latino communities.

Mexican American Legal Defense and Education Fund (MALDEF) – minority non – profit group’s statement on court ruling prohibiting census citizenship question.

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

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Andres Urena

Court of Appeals Issues Ruling Prohibiting Elected Officials From Banning Online Critics on Social Media Platforms

Court of Appeals Issues Ruling Prohibiting Elected Officials From Banning Online Critics on Social Media Platforms

Brief #74—Civil Rights

Policy Summary
Phyllis Randall is an elected official and holds the position of Chair for Loudon County, Virginia, Board of Supervisors. In this role, Ms. Randall opened a Facebook page titled “Chair Phyllis J. Randall’s” Facebook page which contained content that related to her official duties as Chair for the Board of Supervisors. (Ms. Randall also has a separate personal Facebook page for personal and private use). Ms. Randall classified her “Chair Facebook” page as a “government official” page.

On February 3, 2016, Brian Davison, a private citizen, attended a Loudon town hall meeting that also included Ms. Randall and the Loudon County School Board. Later on that evening, Ms. Randall posted information from the meeting which Mr. Davison then responded to with comments he posted on Ms. Randall’s “Chair Facebook” page. Ms. Randall saw that the comments were about accusations of conflict of interests by members of the board. Ms. Randall decided to delete her Facebook meeting post and Mr. Davison’s comments on her post. She then decided to ban Mr. Davison from the “Chair Facebook” page.

Mr. Davison brought a lawsuit against Ms. Randall in the federal district court for the Eastern District of Virginia which ruled Ms. Randall violated Mr. Davison’s Free Speech rights under the First Amendment. Ms. Randall appealed to the Fourth Circuit Court of Appeals which ended up affirming the trial court’s ruling against Ms. Randall. LEARN MORE

Analysis
This case is the first case decided at the Court of Appeals level that has addressed the issue of how elected officials can treat public criticism of their official duties on social media platforms and the First Amendment concerns connected to that. The case will likely be influential in the coming years because of the number of politicians who use social media to interact with their constituents and conduct government policy, most notably President Donald Trump on his Twitter account. The key takeaway from this opinion is how the court determined that social media platforms as used by elected public officials “bear the hallmarks of a public forum.” Under this category, the government (or an elected official) cannot restrict speech on their official government social media accounts based on their content without a compelling state interest. What Ms. Randall attempted to do in her case was censor speech that could have been of interest to the public because of their embarrassing implications to herself and the rest of the Board. Quite simply, this was viewpoint discrimination and has been prohibited by the First Amendment long before social media platforms were developed. Katie Fallow, a senior staff attorney at the Knight Institute, said it best when she said “Public officials…have no greater license to suppress dissent online than they do offline.” The rules regarding Free Speech and the First Amendment and social media platforms are still being developed but this case sends a strong signal that the First Amendment will likely have a strong role to play in the development of free speech rules on social media in the years and decades to come. LEARN MORE, LEARN MORE

Engagement Resources:

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.

Photo by unsplash-logoROBIN WORRALL

North Carolina Election Highlights Need To Prioritize Election Integrity

North Carolina Election Highlights Need To Prioritize Election Integrity

Brief #48—Civil Rights

Policy Summary
On November 6, 2018, the United States held its biennial federal elections. As dictated by the U.S. Constitution, every seat in the House of Representatives was up for election as well as the required 1/3 of the total Senate seats which meant thirty – three Senate seats were being contested (as well as an additional two seats due a special election being called for a total of thirty – five Senate seats being contested nationwide).

In North Carolina’s Ninth Congressional District the election was between Republican Mark Harris and Democrat Dan McCready. After the votes were tabulated, Mr. Harris had a 905 vote lead over Mr. McCready with more than 280,000 votes cast in the district.  Mr. McCready conceded the election the next day. However, the state Democratic Party in North Carolina soon after filed numerous affidavits with North Carolina’s Board of Elections alleging wrongdoing with regard to the election in North Carolina’s Ninth Congressional District and local elections in Bladen County. On November 30, 2018, in a unanimous vote, the Board of Elections announced that they would delay certifying the congressional election and declaring a winner due to “claims of irregularities and fraudulent activities.” They also announced that they voted 7 – 2 to hold a public hearing on December 21, 2018 “to assure that the election is determined without taint of fraud or corruption and without irregularities that may have changed the result.” LEARN MORE

Analysis: While the issue of voter suppression has focused primarily on the issues of gerrymandering, voter ID requirements and discriminatory tactics, other tactics are just as often used and should not be ignored. The 2018 election from North Carolina’s Ninth Congressional District and from nearby Bladen and Robeson Counties helps to illustrate how far some people will go to manipulate an election in order to have an outcome that they desire. The incidents are disturbing and has the potential to cast doubt not just on the integrity of North Carolina elections but on elections nationwide and the concept of democracy in the U.S.

In Bladen and Robeson counties, 3,400 absentee ballots were requested by voters but a high percentage were not completed and not mailed back. An analysis by the News & Observer found that many of the unreturned absentee ballots were from minority voters nearly 3 times more than from white voters who requested absentee ballots. This follows on the heels of Mr. Harris’ win in the primary election held in May where he won an astonishing 96 percent of all absentee ballots cast in Bladen County. Also, Bladen County voter Datesha Montgomery stated in a sworn statement that a woman came to her door and told her that she was collecting absentee ballots. Ms. Montgomery voted for two local elections and then was told by the woman to sign the envelope and that the woman told her that she would finish the voting on the absentee ballot for Ms. Montgomery. At least five other people have stated in sworn statements that people came to their doors and offered to fill out absentee ballots for them. These incidents occurred in neighborhoods that were primarily African – American. These are certainly troubling incidents and the Board of Elections made the right decision in delaying certification in the congressional race and in further investigating the allegations of irregularities and fraud. It is not about gerrymandering or voter ID but the incidents in North Carolina is still an assault on democratic principles and should be investigated so something like this will be prevented from happening again. LEARN MORE, LEARN MORE, LEARN MORE 

Update: An investigation into irregularities and fraud in the North Carolina Ninth Congressional District continues with typical and unforeseen circumstances that still leaves the district without an official winner. Democrat Dan McReady, who originally lost the election, has accused Republican Mark Harris of not cooperating with investigators and is poised to fight in order to force a special election, which would essentially be a do – over of the November election. Mark Harris has tried to distance himself from Leslie Dowless, a campaign employee who has been accused of orchestrating the absentee ballot fraud. Mr. Dowless has a history of questionable campaign tactics concerning absentee ballot collection in the district going back to 2016. In the ensuing weeks after the November election, voters in the congressional district have claimed that they turned in their absentee ballots with only one witness signature although the ballots mysteriously ended up with two witness signatures. Another ballot was requested by a person who had been listed as deceased. And, absentee ballots were collected by people who were not “close relatives” which is illegal in North Carolina. As a result of these irregularities, the U.S. Congress has made clear that they would not seat Republican Mark Harris for the 116th Congress on January 3, 2019 until an investigation was completed.

Finally, the political atmosphere in North Carolina has complicated the issue as to whether the investigation will be completed at all. In October 2018, a state court ruled that North Carolina’s Board of Elections was unconstitutional as structured and ordered dissolved because of changes Republicans made to the board to limit the Democratic governor’s power. However, the board was permitted to remain in place in order to finish the investigation into the Ninth Congressional District race. However, the investigation dragged on and, fed up, the state court issued an order dissolving the Board of Elections on December 28, 2018. As a result, the congressional election between Mr. Harris and Mr. McReady cannot be certified. Governor Roy Cooper, a Democrat, has offered to create an interim board to handle the election investigation but Republicans have refused to cooperate with the interim board. A new Elections Board has been slated to be implemented on January 31, 2019 and Republicans have decided that they would rather deal with a permanent board instead of an interim Elections Board where the Republicans would have a minority of the seats on the five member board. The investigation, and the political wrangling in North Carolina, continues while the 116th Congress moves forward without a representative from North Carolina’s Ninth Congressional District. LEARN MORE, LEARN MORE, LEARN MORE, LEARN MORE

Update #2: On February 21, 2019, the North Carolina State Board of Elections voted 5 – 0 to order a new election for North Carolina’s contested Ninth Congressional District. The upcoming election, which has not been scheduled yet, comes after four days of testimony from witnesses before the State Board of Elections. The hearings were being held to determine if the accusations of fraudulent activity required another election between Republican Mark Harris and Democrat Dan McCready.

Over the four days of the hearing, the State Board of Elections heard some shocking testimony from witnesses. On Monday Lisa Britt, the former step-daughter of Leslie Dowless the Republican operative accused of orchestrating an absentee ballot operation to steal votes for Republican candidates, testified that at her step – father’s direction she collected unsealed ballots, signed as a witness for ballots to which she was not a witness to and even signed other people’s names as a witness on a number of absentee ballots. She even filled out a number of the absentee ballots in local down ballot races, voting Republican in all races. All of her activities are illegal under North Carolina law. In addition, witnesses testified that the Bladen County Board of Elections might have improperly counted early, in-person ballots. Normal procedure is to collect early, in-person ballots and tabulate them on Election Day but these ballots were counted prior to that which raised another irregularity in the contested congressional district. And finally Republican Mark Harris, who was leading in the election by a 905 vote margin, testified before the North Carolina State Board of Elections that he knew of no illegal activity and then surprised all and called for a new election to be held. Mr. Harris had been against another election but finally agreed to call for a new election after listening to the testimony from the hearing. After Mr. Harris’s testimony, the State Board of Elections voted unanimously for a new election for the congressional seat from North Carolina’s Ninth Congressional District. The new election, which is the last undecided election from the 2018 midterms, will be scheduled in the near future. LEARN MORE, LEARN MORE

Engagement Resources:

  • The Voter Participation Center – non – profit group dedicated to registering and mobilizing the American electorate.
  • HeadCount – non – profit group’s infopage on states voting information.
  • Vote.org – online guide with up to date information on voting rights.

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.

Photo by Element5 Digital

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