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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

 

California GOP Wrongly Takes Up Voter Mail Fraud Issue In California Lawsuit

Brief #123—Civil Rights
By Rod Maggay
In April 2020 President Donald J. Trump again claimed that mail – in ballots encouraged cheating and dishonesty with state voting processes. On May 24, 2020 The Republican National Committee and a number of other GOP groups filed a lawsuit in the Federal District Court for the Eastern District of California in an effort to stop California Governor Gavin Newsom’s May 8, 2020 executive order to send all California voters a mail – in ballot for the upcoming November 3, 2020 election.

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California Approves Rules That Could Be Best Model For Courts To Manage COVID-19 Pandemic

Brief #119—Civil Rights
By Rod Maggay
On April 6, 2020 the California Judicial Council approved eleven temporary court rules in response to the coronavirus COVID-19 pandemic. The rules are designed to only be temporary and will be used to ensure that California state courts can provide due process and access to justice to citizens while ensuring that citizens and employees of the judicial system are adequately protected from a possible COVID-19 transmission and infection.

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Nevada First State To Make Voting By Mail Mandatory For Upcoming 2020 Primary

Brief #117—Civil Rights
By Rod Maggay
Due to the dangers of the COVID-19 coronavirus, the U.S. federal government, a number of U.S. states and numerous local governments encouraged a variety of preventative social measures to try and contain the virus. Shelter in place and stay at home orders, the closing of non – essential businesses and suggested social distancing techniques eventually led to an estimated 150 million Americans – out of an estimated 325 million total population – unwillingly confined in their homes.

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California GOP Wrongly Takes Up Voter Mail Fraud Issue In California Lawsuit

California GOP Wrongly Takes Up Voter Mail Fraud Issue In California Lawsuit

Policy Summary: In April 2020 President Donald J. Trump again claimed that mail – in ballots encouraged cheating and dishonesty with state voting processes. On May 24, 2020 The Republican National Committee and a number of other GOP groups filed a lawsuit in the Federal District Court for the Eastern District of California in an effort to stop California Governor Gavin Newsom’s May 8, 2020 executive order to send all California voters a mail – in ballot for the upcoming November 3, 2020 election.

Governor Newsom’s executive order sets forth three things – [1] that each state county election officials shall deliver vote – by – mail ballots to all registered voters who are eligible to vote in the November 3, 2020 election, [2] that no limits will be placed on in – person voting opportunities that are feasible, and [3] that Governor Newsom’s administration will continue to partner with the Secretary of State and the Legislature to explore in – person voting opportunities as well as other details for the November 2020 election. LEARN MORE, LEARN MORE

Policy Analysis: Once again, as in recent state elections in Wisconsin in 2020 and North Carolina in 2018 have shown, the Republican Party is attempting to manipulate the issue of absentee and mail – in ballots to suppress votes.

First, the contention in the California lawsuit that vote by mail “invites fraud” and “illegitimate voting” is simply a false assertion that has already been debunked numerous times. In an extensive analytical piece by the Washington Post the article states that the issue is being used to advance a partisan agenda by the GOP even though some GOP figures publicly and privately question President Trump’s attacks on mail – in voting. Republican Senator Rick Scott of Florida praised the mail – in voting system in his state while frequent Trump critic and Republican Senator from Utah Mitt Romney said that a majority of his state participates in mail – in voting and that it has worked very well in Utah. State mail – in voting systems, when properly administrated and monitored, are an effective and reliable voting option.

What is not being mentioned is that Governor Newsom’s order is not moving the entire state voting system to a mail – in only system. His order was explicit that he and the Legislature were continuing to explore options with in – person voting and how to do that safely while in the midst of a pandemic. While Democrats have pushed for an expansion of mail – in voting during the pandemic they are also insistent that in – person voting options still be available. Voters could still have the option to vote in person or submit their ballot by mail. Current options, like in – person voting would not be eliminated. The voter would simply have more options to choose how they want to vote.

Finally, President Trump’s claims that that Democrats are encouraging voter fraud by pushing for mail – in ballot options is incredible when one considers the case of GOP operative Leslie Dowless in North Carolina, specifically in the 9th congressional district in that state. In that case, Mr. Dowless was charged with a number of felonies in connection with a scheme to improperly collect and tamper with the absentee ballots in a way that would give more votes to the Republican candidate for Congress from that district in the 2018 election. The end result was that the results of the 2018 election where the Republican narrowly won were voided. That caused the Republican candidate who “won” to step aside and another election to be held. The GOP cannot try to claim that mail – in voting causes fraud when one of their own operatives was caught engaging in a fraudulent scheme in the county’s absentee ballot voting system to help boost a Republican candidate’s chances. The GOP bringing a lawsuit in California to defend fair and honest voting options becomes suspect and exposes what the lawsuit is really about – an effort to discredit mail – in voting systems for partisan reasons, which at its core is nothing but another attempt to suppress votes. In this time where stepping outside to cast a ballot could mean the difference between life and death, the GOP would do better to find ways to help people vote instead of being an obstacle for voters who want to cast their ballot. LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources:

  • Rock the Vote – non – profit group’s infopage on each state’s absentee ballot voting rules.
  • Vote at Home – non – profit group’s webpage advocating for voters to have the option to vote at home and with a collection of vote at home documents and success stories.
  • National Conference of State Legislatures (NCSL) – article from notable website of comparative state laws arguing for both absentee and in – person voting options.
  • Center for American Progress – non – profit group article on why mail – in and in – person voting is essential for people of color.

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.

We Are 16 States Away from Being Able to Have an All Mail-In Presidential Election

We Are 16 States Away from Being Able to Have an All Mail-In Presidential Election

Policy Summary: In the United States, an absentee ballot is a voting option that permits a registered voter to receive an official ballot from the state and return the ballot to the state board of elections after he or she has filled it out at a place other than a local polling booth. The ballot is traditionally filled out at the voter’s home prior to the designated Election Day and returned before or on Election Day. The ballot is valid in every respect except for the fact that the ballot is not marked at a local polling booth.

As of May 2020, sixteen states permit voters to cast an absentee ballot but only with an approved excuse that is listed in the state statute concerning absentee ballot voting. Citizens in these states can only qualify for an absentee ballot using one of these approved excuses. Any other excuse, no matter how valid, is not accepted. Many of the same approved excuses for an absentee ballot can be found in these states – for U.S. military service members serving abroad, for those with illness or disability, those incarcerated for a crime that is not a serious felony, the person is an elected official and for workers who work shifts during polling hours. Some states also impose additional requirements such as an affidavit swearing to their excuse. The remaining thirty-four states and the District of Columbia allow various forms of absentee ballot voting for its citizens that do not require the voter to have an approved excuse. Any voter in these remaining states who requests an absentee ballot will simply receive one. LEARN MORE

Policy Analysis: With the COVID-19 pandemic sweeping the United States in 2020 there have been concerns as to how the virus will affect upcoming U.S. elections. This includes upcoming state primary elections this summer that have already been postponed at least once and the national election in November 2020. In early April, Wisconsin refused to postpone their state election and presidential primaries because of the virus which resulted in the state bungling election operations (delayed distribution of absentee ballots with some never even being delivered and only opening five polling booths out of a potential one hundred seventy – eight in the city of Milwaukee). This has led to calls for an absentee ballot election for the remaining 2020 scheduled elections.

While thirty – four states and the District of Columbia have made voting by absentee ballot a viable and easy option the remaining sixteen states have still not made the process to vote by absentee ballot in their state as easy as it should be. Most of the states are red states in the South (Indiana, NY and Connecticut are the other states). The main impediment at the moment is the process to qualify for an absentee ballot. The sixteen states still require an approved excuse and it is not exactly clear if the threat of a deadly virus qualifies as an approved excuse. This could lead to a possible scenario where a voter would request an absentee ballot because of fear of infection from COVID-19 and be denied.

When compared to how the rest of the states have been administering their absentee ballots it is clear that, given enough time, states can efficiently and effectively conduct an all – mail election. The requirement of having an approved excuse should no longer be a barrier for any citizen who wants to cast their ballot. The Brennan Center of Justice has conducted research that shows mail – ballots have been the primary method of voting in five states, that mail – in ballots have bipartisan support and that voting by mail encourages fraud is simply false. While the approved excuses used by the remaining sixteen states are noble efforts to permit absent voters to cast their ballot it is clear that circumstances have changed and that other more modern options employed by the rest of the country is the wave of the future that needs to be implemented in the remaining states. There is no need to require a separate affidavit statement when a signature and warning on the back of the envelope will suffice. Additionally, many states on the west coast automatically mail a ballot to all voters with the option to drop it off in the mail or bring it to a voting booth on Election Day and those states have administered their elections with almost no administrative problems. With more and more people opting to vote at home by absentee ballot because of personal convenience there is no need to restrict absentee voter eligibility to only military service members and others who cannot physically appear at a local polling station. The traditional reasons for an absentee ballot have been swept away by the COVID-19 2020 pandemic. With more and more states employing no – excuse absentee ballots and a history of managing all – mail elections successfully it is time for the remaining sixteen states to follow their sister states and make an all mail – ballot election possible for 2020 and in the years to come. LEARN MORE, LEARN MORE

Engagement Resources:

  • Rock the Vote – non – profit group’s infopage on each state’s absentee ballot voting rules.
  • Brennan Center for Justice – group statement on why COVID-19 should be accepted as an excuse to permit voters to vote by absentee ballot (with updates on individual states thus far in 2020).
  • Vote at Home – non – profit group’s webpage advocating for voters to have the option to vote at home and with a collection of vote at home documents and success stories.

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.

President Trump Surpasses President Bush In Number of “Not Qualified” Federal Judicial Nominees

President Trump Surpasses President Bush In Number of “Not Qualified” Federal Judicial Nominees

Policy Summary: During Donald Trump’s presidency the American Bar Association (ABA) has rated nine of his nominations to the federal bench as “not qualified.” Six of the nine were nominations for a federal district court while the remaining three were nominations to a federal circuit court of appeals. The nine “not qualified” federal bench nominations thus far into his presidency already surpass the number of “not qualified” nominations made by President George W. Bush (eight total) over the eight years of his two terms. In contrast, President Bill Clinton nominated four persons who were deemed “not qualified” while President Barack Obama never nominated anyone who was rated “not qualified” by the ABA.

The American Bar Association conducts its reviews of federal bench nominees through its Standing Committee on the Federal Judiciary. The Standing Committee is composed of two members from the Ninth Circuit Court of Appeals, one member each from the remaining federal circuits and the Chair of the Committee. In conducting its review to arrive at its rating the committee evaluates three criteria – integrity, professional competence and judicial temperament. When reviewing integrity, the committee reviews the nominee’s general reputation in the legal community and diligence. The professional competence criterion examines knowledge of the law and writing and analytical abilities. Judicial temperament examines open – mindedness, freedom from bias and commitment to equal justice under the law. These evaluations are based on interviews with colleagues (law school professors, co – workers) and publicly available records (written academic and court documents, blog posts) and results in either a well – qualified, qualified or not qualified rating. (Each rating also includes whether the rating was unanimous or substantial majority, e.g. substantial majority not qualified). A federal bench nominee is rated not qualified if the nominee does not meet one of the three evaluation standards. LEARN MORE, LEARN MORE

Policy Analysis: When the numbers of federal judicial appointments made by President Trump is compared to other recent presidents it is clear that President Trump has nominated slightly more than other recent presidents. But the most disconcerting thing about President Trump’s nominations are the unusually high rate of persons nominated who are rated “not qualified” by the American Bar Association (ABA). The ABA was founded in 1878 and for more than one hundred forty years has been at the forefront of advocating for the legal profession in the United States. Through its own words the ABA is “committed to advancing the rule of law in the United States” and providing “practical resources for legal professionals.” For President Trump to nominate a high number of individuals who are rated “not qualified” ignores the thoughtful and important work that the ABA has done since 1953 in rating who should and should not be bestowed with a lifetime federal judgeship.

It is puzzling why an individual who is rated “not qualified” would be nominated and even confirmed for a position as a federal judge or justice but this has been occurring with increasing frequency the last few years. Even if a president saw fit to nominate an individual who would get the unfortunate rating there would be the hope that the Senate Judiciary Committee and eventually the full Senate would not vote to approve that person for the position. But it appears that in the last few years circumstances have given the Republican Party the ability to nominate and approve individuals rated “not qualified” by the ABA. With the Republicans in control of the White House and the Senate they are in a position to nominate individuals with the Democrats unable to muster enough votes to block a nomination in the Judiciary Committee or in the full Senate chamber.

An examination of the individuals nominated by President Trump who were rated “not qualified” shows that many of the candidates had in common the political position of opposition to abortion rights and LGBQT rights. The Leadership Conference on Civil & Human Rights organized letters to be sent to Senators that listed in detail why the group was opposed to the nomination of many of these individuals. The nominations of L. Steven Grasz to the Eighth Circuit Court of Appeals and Justin Walker to the District Court for the Western District of Kentucky revealed that both men had displayed extreme patterns of political bias that questioned whether they could act as an impartial judge as the role requires. Both men were eventually confirmed. Jonathan Kobes’ nomination to the Eighth Circuit Court of Appeals and John O’Connor’s nomination to Oklahoma federal district courts were troubling because the individuals could not satisfy to the committee that they could properly follow ethical rules and write to the high legal standard required of a judge. Kobes was later confirmed while O’Connor withdrew his name. What is clear in these nominations is that all of the nine individuals were being nominated and approved not because of their professional legal skill but because of their adherence to the policies and positions of the Republican Party. Partisan politics was taking precedence over whether a nominee had the skill to manage the rules of a trial, write a coherent and persuasive court order or opinion and judge a case based on the applicability of the relevant law and a case’s merits. This is a very disturbing pattern undertaken by the Republican Party to advance their social agenda. In the future, in order to ensure that qualified and open minded male and female legal professionals are nominated and placed on the federal bench, it is important to reveal how the Republicans have been advancing their social agenda when it comes to the federal judiciary and push for changes in the White House and in the Senate Republican leadership in the upcoming November 2020 elections. LEARN MORE, LEARN MORE

Engagement Resources:

Leadership Conference on Civil & Human Rights – listing of opposition letters against Trump federal judiciary nominees sent by the conference to U.S. Senators with list of their concerns.

American Bar Association (ABA) – website of group dedicated to defending liberty and delivering justice on behalf of the legal profession.

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

How Wisconsin Republicans Tried To Manipulate An Election Primary And Still Ended Up Losing

How Wisconsin Republicans Tried To Manipulate An Election Primary And Still Ended Up Losing

Policy Summary: On April 7, 2020 the State of Wisconsin held a statewide election that also included a primary for the Democratic presidential nomination.

On March 24, 2020, at the direction of Governor Tony Evers, Wisconsin Department of Health Services Secretary – designee Andrea Palmer issued a stay at home order for the residents of Wisconsin to try and slow the spread of the COVID-19 virus.

With the upcoming statewide election and primary scheduled for April 7, 2020 Governor Evers came under pressure to try to postpone the election because of worries about COVID-19 spreading at in – person polling booths. On April 2, 2020 Judge William M. Conley issued an order in a court case refusing to postpone the election but extended the deadline for absentee ballots to be received to April 13, 2020.

On April 4, 2020 Governor Evers called a special legislative session in order to get the Wisconsin Legislature to hold the election entirely by absentee ballot. However, the session was quickly terminated by the Republican controlled chamber with no action taken which eased the way for the April 7 election to continue with in – person polling booths. On April 6, 2020 Governor Evers tried one last attempt to postpone the election with an executive order even while he conceded that he did not have the legal authority to postpone the election. His executive order was appealed to the Wisconsin Supreme Court which ruled against the executive order which again allowed the election to proceed in – person.

On the same day, the U.S. Supreme Court issued its decision in Republican National Committee v. Democratic National Committee. That case concerned the absentee ballot process in Wisconsin. In its opinion, the court relied on a strict technical reading of state law in requiring absentee ballots to be mailed and postmarked by Election Day. They noted that the plaintiffs never asked in court papers for absentee ballots mailed and received after Election Day to be counted which is why the court did not decide that issue. Thus, absentee ballots in the state could be received up to April 13th per Judge Conley’s order but had to be postmarked and mailed by Election Day and no later per the U.S. Supreme Court.

On April 7, 2020 Wisconsin held a statewide election which ended up with a an unusually high turnout rate. LEARN MORE, LEARN MORE

Policy Analysis: The election is notable because it was held during the COVID-19 pandemic and a stay at home order issued by Wisconsin’s Democratic governor Tony Evers. In the run up to the election there were significant government actions at the state and federal level that caused concern that the election was not conducted under the most optimal circumstances.

What made this Wisconsin election interesting to observe was the political motivations that went on behind the scenes. Due to the COVID-19 coronavirus pandemic, the choice whether to venture outside and to public places to cast a vote could have had life and death consequences for many people. Many residents of Wisconsin began clamoring for the election to be held by absentee ballot but the Republican Party in Wisconsin pushed hard to have the election occur because they wanted a state supreme court justice to win the election over his Democratic challenger. (Wisconsin Supreme Court Justices serve ten – year terms and then are up for re – election). Republicans in Wisconsin reasoned that the COVID-19 coronavirus would keep many Democrats at home thus ensuring that Republican backed Justice Daniel Kelly would win. This reasoning pushed the Republican controlled legislature to block and appeal every effort taken by Governor Tony Evers to postpone and change the election to an all ballot election. It was clear that the Republicans in Wisconsin did not prioritize the health and safety of the state’s citizens. They simply wanted to manipulate the COVID-19 virus as a way to keep one of their own on the bench.

In addition to the motivations regarding a seat on the state supreme court, Republican legislators also tried to manipulate to their advantage the absentee ballot process in the state. With the COVID-19 virus sweeping through the nation, many residents sought to convince Wisconsin state officials to have the election by mail. However, transitioning to an all – mail election would have taken time and it would not have been likely that every single resident eligible to vote would have had an absentee ballot in hand for the April 7th election. The proper course of action would have been to extend the deadline to have the absentee ballot postmarked. However, numerous residents claimed that on the eve of the election that they did not even have an absentee ballot yet. Republicans in the state took a hard line on this issue – in the Wisconsin Legislature on April 4th they refused to consider the issue of moving to an all absentee ballot election and in the U.S. Supreme Court they relied on an obscure technical legal rule that does not favor changes to an election so close to the election date. While the law may have arguably been on the Republicans side on this issue, their obstruction tactics in the state legislature and argument in the two court cases gives off the image that Republicans are not interested in having a fair and safe election. This episode shows that Wisconsin Republicans were only interested in party politics and not in encouraging a safe, free and fair election.

However, residents in Wisconsin ended up having the last laugh. Voter turnout in Wisconsin for the election was unusually high, even during rain and sleet in some areas, and Republican backed state supreme court justice Daniel Kelly was defeated by liberal challenger Jill Karofsky by more than 163,000 votes. 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.

California Approves Rules That Could Be Best Model For Courts To Manage COVID-19 Pandemic

California Approves Rules That Could Be Best Model For Courts To Manage COVID-19 Pandemic

Policy Summary
On April 6, 2020 the California Judicial Council approved eleven temporary court rules in response to the coronavirus COVID-19 pandemic. The rules are designed to only be temporary and will be used to ensure that California state courts can provide due process and access to justice to citizens while ensuring that citizens and employees of the judicial system are adequately protected from a possible COVID-19 transmission and infection. The announcement of the rules by California follows an extraordinary request made by the U.S. Department of Justice to Congress to allow it more input over federal courts to pause court proceedings when requested by the Attorney General. However, numerous Members of Congress from both sides of the aisle reacted to the original Politico report on their respective Twitter accounts that they were against the DOJ request for DOJ to exert more influence over the federal judiciary over such matters concerning pre – arrest, post – arrest, pre – trial, trial and post – trial procedures. The Members of Congress only reacted to the Politico report and did not reference any internal document that contained the DOJ’s request.

The temporary court rules approved by California generally falls into three categories. The rules are either a suspension of a particular court rule or proceeding, the extension of specific timelines and deadlines for a specific set of cases and the encouragement of the use of available technological tools in order to permit court functions to occur remotely. Eleven of these temporary court rules were approved on April 6, 2020 and comes on the heels of an initial set of temporary emergency measures approved by the California Judicial Council on March 28, 2020. LEARN MORE, LEARN MORE, LEARN MORE

Policy Analysis
In what is being viewed as a subtle rebuke to the U.S. Department of Justice’s (DOJ) recent requests to Congress to give the Attorney General powers to ask federal courts to pause proceedings due to an emergency situation, the State of California has implemented temporary emergency court rules that demonstrate how an “independent judiciary” can determine on its own how court proceedings can continue during uncertain times and situations.

The first category of temporary court rules in California are those where a court rule was suspended – the suspension of an entry of default in eviction cases, suspension of judicial foreclosures and the setting of most bail amounts at $0 dollars for most misdemeanor and low – level felony offenses. While there has been much criticism directed at Attorney General William Barr for making his request to Congress to try and pause court proceedings at the request of the federal government, there is a very significant distinction with his requests when compared with the suspension of California court rules. California’s temporary new rules were aimed at ensuring that citizens would still be able to exercise their legal rights to protect their personal freedom and property while the DOJ’s requests appeared to be an attempt to suppress the exercise of legal rights. The California rules in this instance were designed to ensure that no citizen would be kicked out of their homes until a proper judicial hearing could be held for them. Additionally, the reduction of the California bail schedule was designed to protect citizens from being incarcerated for offenses that could greatly increase their exposure to infection from the COVID-19 coronavirus. While California was doing all they can to protect their citizens the DOJ’s request was different in that it appeared to try and do away with court rules that they simply did not want a citizen or criminal defendant to have when the government was prosecuting a person.

Along these lines, the second category of California’s new temporary emergency rules can also be seen as trying to protect the rights of citizens while the COVID-19 coronavirus sweeps through the country. In the first batch of rules approved on March 28, 2020 there were four rules that extended the timelines of court cases and deadlines to ensure that citizens would not be prejudiced by a shortened time period to prepare their cases due to the virus. Time periods to hold preliminary hearings were extended from 10 to 30 days, criminal defendants were required to be charged by a judicial officer no more than 7 days instead of the normal 48 hours, and trials were given an additional 90 days after the COVID-19 state of emergency is lifted to bring a civil or criminal case to trial. Additionally, restraining orders were extended (benefitting those who hold a restraining order against another person) while statutes of limitations governing civil actions were also extended.

And finally, the other rules approved were to permit and even encourage the use of technology to conduct court proceedings and other essential operations remotely. During a time of social distancing guidelines and possibility of infection from being too close to other persons this proposal made the most sense. Now, with the defendant’s consent in some cases California state courts can use all video, audio and telephone capabilities to ensure that a citizen can state their case and if need be, state a full and robust defense and be present for all proceedings remotely. Even civil case depositions, which have traditionally been done in person, are encouraged to be taken electronically. These electronic measures permit the California judiciary system to meet stringent health directives during this time and will protect court employees and all who have pressing business that would normally have been done inside a state courthouse.

What the California Chief Justice made clear was that these new rules would be temporary. They were approved only because of what the COVID-19 pandemic has brought about to the world the last few months. But until the state of emergency and stay at home orders are lifted Chief Justice Tani Cantil – Sakauye got it right when she said the regulations are to “preserve the rule of law and protect the rights of victims, the accused, litigants, families and children, and all who seek justice.” LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources:

  • California Judicial Branch – list of latest news on how the California Judiciary is managing the COVID-19 coronavirus pandemic.
  • National Center for State Courts – non – profit webpage focused on state court issues and how state courts around the country are dealing with the COVID-19 coronavirus pandemic.

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.

DOJ Seeks An Unnecessary Expansion Of Government Powers In Court Proceedings Due To COVID-19

DOJ Seeks An Unnecessary Expansion Of Government Powers In Court Proceedings Due To COVID-19

Policy Summary: On March 21, 2020 the Politico website reported that the U.S. Department of Justice (DOJ) made a request to Congress seeking new emergency powers as a result of the coronavirus COVID-19 pandemic sweeping the world. Specifically, DOJ requested that Congress give the U.S. Attorney General the power to ask the chief judge of any federal district court to pause court proceedings if the district court is closed due to “natural disaster, civil disobedience or other emergency situation.” Additionally, another request sought to grant to federal judges the ability to pause court proceedings in criminal and civil cases on their own initiative due to an emergency. A final request made by DOJ to Congress was the ability to use videoconference court hearings without the consent or presence of the defendant. LEARN MORE

Policy Analysis: A spokesman for the Justice Department has declined to comment on reports of the requests being made to Congress. But as reported the requests has stirred the unease of many civil liberties advocates nationwide. While the coronavirus COVID-19 pandemic has created new challenges in all aspects of American civil, political and social life the requests being made by DOJ to Congress may not be proportional or even necessary to meet the challenges created by this virus. On closer inspection, the requests are more likely an expansion of governmental powers that reach further than need be to ensure the proper operation of court proceedings.

One of the most appealing aspects of the American judiciary system – both at the state and federal level – is that they are an independent judiciary. They answer only to the highest courts in their states (for state judges) or the U.S. Supreme Court (for federal judges). The U.S. Attorney General has no say over what judges do nor can he control their activities or proceedings. Congress passes laws which all courts must follow (mostly procedural and jurisdictional issues) but after that the courts have the power to decide how the rules will operate.

First off the request to Congress to give the Attorney General power to ask the chief judge of a federal district court to pause court proceedings is overreaching based on the standard sought to be used. In the Politico report, the article stated that the Attorney General could ask for a pause if court proceedings are closed to “natural disaster, civil disobedience or other emergency.” While a natural disaster and other emergency – like the COVID-19 pandemic – would certainly be reasonable grounds to close a court temporarily, the term civil disobedience is problematic. That term is one that can be interpreted in a number of different and it could very likely include legitimate acts of protest. Courts at the federal and state level have operated during times of civil disturbances before and so including this term in the legal standard is not required. What the Attorney General intended was probably to lump legitimate acts of civil disobedience in the same category as natural disaster or other life threatening emergency when in fact most acts of protest do not rise to that level at all. This was a subtle attempt to try and suppress acts of legitimate civil disobedience by making them seem more dangerous. The inclusion of the term civil disobedience in the language of the legal standard was not necessary.

Additionally, the other requests are troublesome because of the effect they can have on the conduct and maybe even the outcome of civil and criminal trials. A request for the power to suggest altering or suspending statutes and rules of procedure gives the Attorney General an opportunity to manipulate a chief judge to, quite simply, ignore rules that courts are supposed to abide by when performing their duties. Some of these rules, such as habeus corpus and speedy trial rules, were enacted specifically to give protections to citizens to ensure that they are not detained any longer than necessary and so that they will have a fair process to contest the accusations against them. In one instance, one of the requests made by DOJ to Congress was the ability to have court conferences via videoconference without the consent or presence of the defendant. This would in effect be a court hearing and/or trial without the defendant present. A government that can accuse and try her citizens without the presence of a defendant or their lawyer is simply not what the criminal justice system envisioned in a fair and just criminal proceeding. With the technological tools available today there is no reason to implement rules and procedures that deprives criminal defendants of civil liberties and protections.

Attorney General William Barr wants to implement more control over the judiciary and is trying to use COVID-19 as some kind of excuse to exert more input. With a Democratic majority in Congress his requests are likely not going anywhere. Additionally, there is bi-partisan support in Congress against the DOJ requests. Just as the civil disobedience term was unnecessary, the ability to alter statutes and procedure rules or suspend them indefinitely is not needed. Congress needs to ensure that any requests of this kind from DOJ be properly vetted so as to not make fundamental changes that can deprive criminal defendants of constitutional and legal protections and leave them at a disadvantage when navigating a criminal trial. 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.

Nevada First State To Make Voting By Mail Mandatory For Upcoming 2020 Primary

Nevada First State To Make Voting By Mail Mandatory For Upcoming 2020 Primary

Policy Summary:

Due to the dangers of the COVID-19 coronavirus, the U.S. federal government, a number of U.S. states and numerous local governments encouraged a variety of preventative social measures to try and contain the virus. Shelter in place and stay at home orders, the closing of non – essential businesses and suggested social distancing techniques eventually led to an estimated 150 million Americans – out of an estimated 325 million total population – unwillingly confined in their homes. Most suggestions and orders by the governments were to last through March 2020 but some have been extended into April 2020.

On June 9, 2020 the State of Nevada is scheduled to hold a primary for all statewide offices. (Nevada held a presidential caucus in February 2020 for only the candidates for the Democratic presidential nomination. Senator Bernie Sanders of Vermont won the state’s delegates in that contest). However, because of concerns about spreading the COVID-19 coronavirus in polling stations where hundreds would gather at a time and thousands would pass through throughout the day, Nevada Secretary of State Barbara Cegavske announced, in conjunction with county election officials in all seventeen (17) of Nevada’s state counties, that the primary election would be conducted entirely by mail and absentee ballot. Shortly thereafter, Governor Steve Sisolak (D-NV) announced his approval of the decision. LEARN MORE

Policy Analysis
There is no doubt that the COVID-19 coronavirus has upended nearly all aspects of American life in 2020. No sector has been spared – the national economy, the American sports world and a number of social events have been curtailed and/or suspended to prevent more Americans from being infected and prematurely struck down dead by the virus.

But in March 2020 and with a coming summer election season that will lead up to the November 2020 American elections, questions have emerged as to how the U.S. will conduct elections with stay at home orders and social distancing practices in place. American elections are a time for Americans to congregate at polling stations around the country and select the candidates of their choice yet medical recommendations and precautions cannot be ignored because of the need to stem the spread of this dangerous virus.

In response, a total of twelve states have made adjustments to upcoming primaries. Seven states moved their upcoming primaries to June 2, 2020 (Connecticut, Delaware, Indiana, Maryland, Ohio, Pennsylvania and Rhode Island) while Louisiana, Kentucky and Georgia moved their primaries to a number of different dates in May and June 2020. By pushing the dates further into the summer, it was hoped the spread of the virus would be contained by then and it would be safe for American voters to visit their local polling booths.

In that context, Nevada’s decision is unique in that it has become the first state to announce a primary that will be conducted entirely by mail. A number of other states have publicly urged citizens to vote by absentee ballot (Wyoming, Alaska and West Virginia) but Nevada is the first to make voting by mail for this primary mandatory. Voters don’t even have to request an absentee ballot, as is the usual practice. Nevada will simply mail all registered voters their ballot with technical instructions as to how to fill it out and how to utilize either of the two options to return the package. Voters can simply drop it in any mailbox or drop it off at their local polling station at a drive – through site. Ballots will have to be received or postmarked by primary election day but Nevada has assured their voters that there will also be a seven – day window for the state and/or the voter to correct technical errors if any are detected.

While America and much of the world remains on edge with the ongoing threat of this virus, the steps taken by the State of Nevada to continue the democratic process with a workable absentee ballot/mail – in system is the model other states should implement as soon as possible. LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources:

  • Election Protection – non – profit group working to protect citizen’s right to vote with webpage on states who have adjusted their primaries because of the COVID-19 coronavirus.
  • Lawyers Committee For Civil Rights Under Law – non – profit’s webpage with a broad general overview of issues related to 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 James Walsh

U.S. Congress On Verge Of Passing First Federal Anti – Lynching Law

U.S. Congress On Verge Of Passing First Federal Anti – Lynching Law

Policy Summary
On January 3, 2019 Rep. Bobby L. Rush (D-IL) introduced in the U.S. House of Representatives H.R. 35, known as the Emmett Till Anti – Lynching Act. The bill proposes to modify the Civil Rights Act of 1968 and other relevant civil rights sections by including the act of lynching as a punishable federal crime for the first time. The bill permits a term of imprisonment to be extended to a full ten years if the term of imprisonment imposed is less than ten years. The bill was referred to the House Judiciary Committee, which recommended on October 31, 2019 that the bill be passed. On February 26, 2020 the full House chamber voted on the bill and the bill passed by a vote of 410 to 4. The bill is now before the U.S. Senate and is scheduled for a likely conference committee meeting to iron out differences with a similar anti – lynching bill that the U.S. Senate passed in 2019. LEARN MORE

Policy Analysis
The history of lynching in the United States is one of the darkest chapters in this nation’s history. The term came to be associated with the vigilante act of “punishment without trial” and took root in the United States South as a way to terrorize and intimidate African – Americans from participating in American civic and social life. In general terms, whites who became outraged at a perceived insult or some misconceived act of disrespect often kidnapped one or more African – Americans, killed the persons and then hung the people from a tree where pictures were taken with smiling white people. According to the National Association for the Advancement of Colored People (NAACP) from 1882 to 1968 there were 4,743 lynchings in the United States. 3,446 of those people were African – American and occurred in all U.S. states except four although most occurred in the U.S. South.

Efforts to try and pass a law to make lynching a federal crime have been ongoing for more than one hundred years. The first known anti – lynching bill was introduced in Congress in 1900 by the lone black Congressman at the time, George Henry White of North Carolina. That did not succeed but numerous bills continued to be brought through the decades with nearly 200 separate attempts through the years. But most bills, even if they were successful in the House, would be filibustered and blocked by Southern senators who said it was a state’s rights issue. As a result every attempt failed and lynchings continued nearly unabated in the Southern states.

A century after Congressman White’s initial federal anti – lynching bill, acknowledgment of the horrific crimes and the Senate’s refusal to do anything helped renew interest in the topic. In 2005 the Senate put forth a formal apology for obstructing attempts to pass an anti – lynching law for the last one hundred years. And now with the passage of H.R. 35 it seems that a federal law outlawing lynching looks likely to pass and become law. Since the Senate had passed a slightly different version in 2019, the two chambers have set up a conference committee to align both versions so that the final version of the bill that is approved is the one that was approved by both houses of Congress. Senator Mitch McConnell (R-KY) has expressed support for the bill as well as President Donald Trump who has pledged to sign the bill whenever a bill is presented to him for his signature. Some say the bill is merely a symbolic measure but the text of the bill indicates that this bill is necessary now as an act of national contrition and as an attempt to try and curb the rise of racist and white nationalist rhetoric that has been on the upswing in America in recent years. 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 John Mark Arnold

California GOP Wrongly Takes Up Voter Mail Fraud Issue In California Lawsuit

Voting Rights Advocates Achieve A Win In Federal Appellate Court Decision On Florida Poll Tax Case

Policy Summary
The Twenty – Fourth Amendment to the United States Constitution provides in Section One:

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

On November 6, 2018 voters in the State of Florida approved the ballot initiative known as Amendment 4. The initiative would permit Florida felons to be restored with the right to vote after they had completed all the terms of their sentence. Florida voters approved Amendment 4 overwhelmingly with 64.55% voting in favor while 35.45% voted against the measure. In 2019, due to Republican opposition to Amendment 4, Governor Ron DeSantis signed a bill that added an additional requirement before the right to vote was restored. SB 7066 required that felons must also pay all fines and fees associated with their sentence.

The battle then moved to the court system. The Florida Supreme Court ruled that the law was constitutional. However, another suit was brought in federal district court in Florida, which ruled that the additional requirements of SB 7066 violated the U.S. Constitution and therefore issued an injunction blocking implementation of SB 7066. That ruling was appealed to the U.S. Court of Appeals for the Eleventh Circuit, which just ruled to uphold the injunction of the law issued by the federal district court. So it appears that for now felons will be able to vote.      LEARN MORE

Policy Analysis
While this decision by the U.S. Court of Appeals for the Eleventh Circuit is a win for voting rights advocates it is certainly not the end of the case. The injunction initially issued by U.S. District Judge Robert Hinkle was only an order to prevent the law from going into effect until the issue can be decided on the merits at a full trial. With the injunction upheld by the appeals court the law remains frozen pending the non – jury trial that had been scheduled, which will begin in April 2020.

Additionally, Governor De Santis’ has indicated that he was disappointed with the ruling and intends to appeal the decision. An appeal would likely take several months to be resolved and might not be resolved in time for the November 2020 elections. However, a number of academics have calculated that the number of felons who would have their voting rights restored is 1.4 million which can certainly sway an election or an initiative on the ballot. This explains why both parties are going to extreme lengths to fight for the future of this issue. Republicans had initially opposed Amendment 4 and suffered an unexpected defeat when voters overwhelmingly approved it. In turn, Democrats have accused Republicans of trying to oppose the popular will of voters by adding additional requirements that would blunt the move to add 1.4 million more voters to the state rolls. And if the case moves up through the appeals process and eventually to the U.S. Supreme Court that will also likely bring up the constitutional poll tax issue which was outlawed with the 24th Amendment in 1964. The stakes are certainly high and while many would have liked to have had this issue resolved in time for the November 2020 elections it seems up in the air whether 1.4 million former felons in Florida will have their voting rights restored by the end of the year. LEARN MORE, LEARN MORE, LEARN MORE

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.

How President Trump and Senator McConnell Have Been Reshaping the American Judiciary

How President Trump and Senator McConnell Have Been Reshaping the American Judiciary

Policy Summary
On President Donald J. Trump’s campaign re – election website for 2020 he lists numerous accomplishments during his first term thus far as well as promises that he claims to have fulfilled from his 2016 presidential campaign. The website address is even www.promiseskept.com. Under the tab for “Law and Justice” President Trump is touting his efforts in “Reshaping The American Courts.” He lists his well – known efforts in successfully nominating two conservative Supreme Court justices in Neil Gorsuch and Brett Kavanaugh. He also lists what he has done with filling the rolls of federal appeals court judges and federal district court judges.

In just over three years President Trump has appointed more than fifty (50) federal appeals court judges. And at the federal district court level President Trump has appointed more than one hundred thirty – three (133) judges. With the fifty (50) federal appeals court judges out of one hundred seventy – nine (179) total, President Trump is responsible for nearly twenty – eight percent (28%) of the judges at the federal appeals level. And with one hundred thirty – three (133) federal judges appointed at the trial level out of six hundred seventy – seven (677) total the President is responsible for nineteen percent (19%) of the federal trial judges currently in service. LEARN MORE, LEARN MORE

Policy Analysis
Recent news articles have recently begun to sound the warning about what President Trump has done to the American judiciary and the consequences in the decades to come. But this effort did not begin with the Trump Presidency. In fact, there has been a long – standing battle in Congress for the last decade that has resulted in Republicans being able to exert more control over the American court system. The strategy of Republicans and evangelical groups, who overwhelmingly support Republican candidates, has been to stall and defer and possibly prevent appointments under a Democratic President and then change the rules to more favorable rules once a Republican President was elected.

In Congress, the Senate must approve all judicial nominations but the procedure to get there has undergone a radical change since 2011. With the Democrats in control of the Senate at the time, they also controlled the committees and could have installed more federal judges. However, former Judiciary Committee Chair Patrick Leahy (D-VT) reinstituted an old rule called “blue – slip” which allowed a home state senator to block a nominee if the nominee was going to serve on the bench in the senator’s home state. This allowed Republican senators to block Democratic federal judge nominations indefinitely and leave the bench open until the day a Republican became President. Numerous Obama federal judge nominations were simply blocked and kept vacant by a Republican senator if the judge was going to serve in his or her state. With the Republicans back in control of the Senate in 2016, they simply ignored the “blue – slip” tradition and proceeded to confirm as many Republican judges as possible after President Trump was elected.

Additionally, the way filibusters were handled was changed. Republicans would often “filibuster” federal judge nominees and simply keep talking so the debate would not end and a vote could be delayed. The only way a filibuster would end was if sixty (60) senators voted to end the debate. But the rule was changed so that only fifty (50) senators was required to end filibusters. Because of the inability to block a vote, Republicans have taken advantage of their current numbers in the Senate and simply voted to end filibusters and then rushed a vote to confirm federal judges.

What this means is that Republicans have very nearly succeeded in confirming an inordinate number of federal judges, which could have consequences for many social policies in the future. One worry is that many of these judges are mere idealogues who are simply there to rubber stamp Republican policies. Two Trump nominees – Sarah Pitlyk in St. Louis and Lawrence Van Dyke to the 9th Circuit Court of Appeals were both rated unqualified by the American Bar Association (ABA). And the main worry is how they will handle controversial topics such as abortion rights, voting rights, campaign finance, police accountability, religion and discrimination and LGBQT issues. The future of the American courts and the judiciary should be watched closely to see that it does not become overtly partisan. And, of course, one goal for the 2020 election cycle is to hope the Democrats regain control of the U.S. Senate in order to take back control of the judicial confirmation process. LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources:

  • Alliance For Justice – non – profit group’s Building the Bench program to take back American courts and ensure they remain independent.
  • Brennan Center for Justice – report on federal judge nominations and attending issues.

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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