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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

 

Federal Appeals Court Opinion Insulates TSA Officers From Civil Liability

The lengthy decision by the Court of Appeals is a curious one and one that has the potential to lead to unwanted consequences. In its opinion, the court’s reasoning turned on how a transportation security officer was classified. Under the Federal Tort Claims Act (FTCA), the federal government and its employees are immune from civil or criminal liability under the doctrine of sovereign immunity except in specific circumstances.

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Supreme Court Protects Cell Phone Privacy Rights

Brief #46---Civil Rights Policy Summary On June 22, 2018, the U.S. Supreme Court handed down its decision in the Carpenter v. U.S. case. The question before the Court was whether the warrantless search and seizure of cell phone records, including location and...

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Trump Forced to End Family Separation at United States/Mexico Border

On June 20, 2018, the people were heard (haza!) and President Trump signed an executive order (“EO”) temporarily ending the immigration procedure of separating children from their parents. Section 1 of the EO states that the Trump Administration’s policy is “to maintain family unity, including by detaining alien families together where appropriate and consistent with law and available resources.”

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Russian Election Meddling Illustrates Privacy Concerns of Data Collection and Retention; Data Privacy Proposals

Russian Election Meddling Illustrates Privacy Concerns of Data Collection and Retention; Data Privacy Proposals

Brief #53—Civil Rights

Policy Summary: On July 13, 2018, twelve Russian intelligence officers were indicted by a federal grand jury as part of the investigation by the Department of Justice’s Special Counsel Robert S. Mueller III. The twelve intelligence officers were charged with conspiring to interfere with the 2016 U.S. Presidential election. Among the range of activities the intelligence officers were engaged in were hacking into and attempting to hack into America’s election infrastructure (including state election boards and state secretary of state offices), providing an American congressional candidate compromising information on his opponent and working with an American journalist to release information on racial groups as a way to inflame racial tensions in the U.S. Not all hacking attempts were successful although in one instance, Russian operatives were successful in penetrating a state election board and where they gained access to the personally identifiable information of 500,000 registered voters. LEARN MORE, LEARN MORE

Analysis: The broad implications of the Russian efforts to meddle in the 2016 United States elections are clear – they were intended to sow distrust of the U.S. government among the U.S. populace and manipulate the electoral process so that a candidate that Russia preferred would be elected over one popularly chosen by American citizens. Those meddling efforts provide enough justification for the U.S. to strengthen its protections of election systems and databases with other personally identifiable information. But the issue needs to be viewed at an individual level and the effects examined on how the ordinary American citizen was harmed.

In the indictment, Russian operators were described as using stolen American identities to open bank and Paypal accounts, create fake driver’s licenses, post messages online and buy political advertisements. All of these efforts helped these foreign operatives target domestic political groups and craft their influence campaign because it allowed American citizens to believe that they were interacting with people who were other American citizens who shared their political beliefs. It gave the Russians a way to mask their activities while leaving unsuspecting American citizens and groups who were targeted based on race or political beliefs in the dark as to the true motives of the Russian operatives.

In its simplest form, the efforts by the Russians was a form of identity theft but their motives went far beyond simple personal profit which is the traditional motive for identity theft. What made their bold efforts possible was the collection of so much personally identifiable information. A person’s personal information has become a commodity to be exchanged, sold and used for purposes beyond an ordinary person’s control. The information a person provides online or to the government no longer stays in that one place but becomes a movable commodity to be sold for commercial purposes, to identify a person’s individual habits and in the most stunning and extreme case to be used fraudulently by a foreign power to dictate to and steer the United States in a direction the country was unwilling to go. Social media platforms and the Internet are here to stay so it is imperative that the United States take this new “twenty – first century human information commodity” and prevent it from being spread, sold and exchanged so easily. There is no clear cut answer or guidelines to follow yet but the information must be given the highest priority for protection lest it gets used in a way that compromises individual people and harms the United States of America as Russia was able to do when it got its hands on it. LEARN MORE, LEARN MORE

Engagement Resources:

  • Privacy Rights Clearinghouse – non – profit group webpage on data breach issues.
  • Privacy International – international non – profit group guidelines on how US companies can comply with the European Union’s General Data Protection Regulation (GDPR).

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 Mirah Curzer

TSA Monitoring and Documenting Innocent Behavior With Quiet Skies Program

TSA Monitoring and Documenting Innocent Behavior With Quiet Skies Program

Brief #51—Gun Policy

Policy Summary
At the end of July 2018, the Boston Globe reported that the Transportation Security Administration (TSA) had been conducting a surveillance program known as “Quiet Skies.” Federal Air Marshals were deployed to track American citizens even though they were not suspected of committing a crime, were not under any active and separate law enforcement investigation and were not on any terrorist watch list. The air marshals were directed to observe passengers on flights based on behaviors the TSA classified as suspicious – extreme perspiration, cold penetrating stares, extreme fidgeting and a number of other behaviors. During the flight, the marshals documented the behaviors and even included how many times a passenger used the bathroom and whether or not the person slept on the flight. In some cases the air marshals also followed the targeted passenger on subsequent flights. Passengers were never notified they were followed by air marshals. The program was put in place in 2010 and TSA estimated they followed approximately thirty – five passengers daily since the program has been in existence. LEARN MORE

Analysis: The report by the Boston Globe was a shocking report and showed that the government was clearly invading the privacy of ordinary Americans when they traveled by plane. TSA issued a statement to CBS stating that the program’s primary purpose is to “ensure passengers and flight crews are protected during air travel” but this rings hollow. This program does nothing more than invade the privacy of ordinary Americans by fabricating a suspicion based on innocent and commonplace behaviors. A passenger nervous about flying could display “extreme perspiration” and “nervous fidgeting.” Another passenger exhibiting penetrating stares could simply have had too many alcoholic drinks or be under the influence of legally prescribed medication. These physical states are the results of innocent and legitimate behavior and are not accurate predictors of an intent to harm.

Additionally, in February 2017, the American Civil Liberties Union (ACLU) issued a report calling TSA’s behavior detection methods “wholly ineffective” and that there is “no scientific basis…to support the detection or inference of future behavior, including intent.” Yet TSA still employed these behavior detection methods in the Quiet Skies program. And, in the most telling rebuke of the program, a number of federal air marshals have publicly criticized Quiet Skies as a waste of time and resources. John Casaretti, president of the Air Marshals Association, said it best when he said that the Quiet Skies program does not meet the criteria that the group finds acceptable. With so many groups critical of the program and the way it is being conducted against ordinary Americans, it would be best to scrap the program and develop another that is respectful of commonplace human behaviors and protective of the civil liberties that Americans expect and deserve. LEARN MORE, 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 Ross Parmly

Senator’s Warner’s Effort to Have a National Discussion on Internet Policy

Senator’s Warner’s Effort to Have a National Discussion on Internet Policy

Brief #50—Civil Rights

Policy Summary:
On August 1, 2018, Senator Mark Warner (D-VA) wrote an opinion piece in USA Today that called on the United States to have a national discussion about Internet privacy, data and social media. The Senator also urged the government to pass new laws and regulations that allows those technological tools to have a positive place in society today. The Senator wrote his opinion article the same week that he released a white paper that contained twenty potential policy proposals for the regulation of social media and technology firms.

This proposal has not been introduced as a bill in Congress yet but comes on the heels of bad news for tech companies like Facebook and Twitter. In March 2018, Facebook became embroiled in the Cambridge Analytica scandal. There, a researcher at Cambridge University enticed users to install an app and partake in a survey. The personal information of those users was collected from that survey along with millions more even though no consent was given to mine the personal info of Facebook friends and connections or share it with outside third parties. All of this data was later acquired by Cambridge Analytica and then shared with various third parties, including President Donald Trump’s 2016 presidential campaign.

Facebook admitted that as many as eighty – seven million users may have had their personal information compromised due to the data breach. Due to the suspicion that this info may have been used to affect and meddle in the 2016 U.S. Presidential Election, Mark Zuckerberg was called to Congress in April 2018 to testify as to how to prevent future abuses of users personal information. Additionally, Twitter has come under fire for its inability to control “Twitter bots” which are anonymous accounts used to try and influence and sway political elections and politicians themselves on behalf of foreign governments (namely, Russia). Many Twitter accounts are suspected of being part of a Russian campaign to spread disinformation and meddle in American politics. The events have persuaded Senator Warner to take the lead in pushing for new social media and data regulations. LEARN MORE

Analysis
Senator Warner’s list of twenty potential policy proposals is an ambitious set of suggestions but for the moment the proposals can be broken down into three main categories – [1] Exploitation/Disinformation/Misinformation, [2] Privacy and Data Protection and [3] Data Ownership.

The Exploitation/Disinformation/Misinformation prong are those policy proposals that seek to require tech companies to be able to determine the origin of posts and accounts, to prevent anonymous accounts, clearly label political advertisement messages and to clearly and conspiculously label “bots.” Bots are anonymous automated accounts that are prodded to send certain types of messages based on certain keywords or other actions. They were believed to have been used extensively by the Russians in the 2016 election to defeat Hillary Clinton.

Privacy and Data Protection proposals are those proposals that are aimed at enacting proposals to actively protect users’ data. This includes making platforms liable under state level actions (defamation and others), civil actions (as “information fiduciaries”) and giving the Federal Trade Commission (FTC) the power and resources to enact rules to regulate tech companies (the FTC has not had rule – making authority since 1980).

Finally, the Data Ownership proposals are those aimed at giving people more control over their own personal information. This would include 1st Party consent for data collection and more proposals similar to those available in Europe, known as the General Data Protection Regulations (GDPR). Under the GDPR, companies doing business in Europe have a seventy – two hour window to notify users of a data breach. The GDPR also gives users a “right to be forgotten.” This means users have a right to request companies that their data be erased. There are more proposals with more technical details to sort through but these are the three main areas that Senator Warner’s proposals aim to touch on. The proposals are a good first step to hold the tech companies accountable and giving more control back to the users and should be taken up by Congress as soon as possible. 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 Appeals Court Opinion Insulates TSA Officers From Civil Liability

Federal Appeals Court Opinion Insulates TSA Officers From Civil Liability

Brief #49—Civil Rights

Policy Summary
On July 11, 2018, the United States Court of Appeals for the Third Circuit issued an opinion in Pellegrino v. Transportation Security Administration. The case began in 2006 when Nadine Pellegrino and a friend stopped at Philadelphia International Airport on their way back home to Florida. Ms. Pellegrino went through security with three bags. A transportation security officer (TSO) began to search her bags but Ms. Pellegrino was not happy with the search and requested a private screening. When another TSO began to search her bags, Ms. Pellegrino asked the TSO to change her gloves because she suspected they were dirty. The TSO complied but from then on the situation in the room became hostile. Ms. Pellegrino claims that the continued search of her bags were extremely rough and invasive – a search was even conducted into her cell phone, credit cards and lipstick. Once the search was completed, Ms. Pellegrino asked the TSO to leave the items out so she could re-pack her bags herself. The TSO refused and proceeded to re-pack her bags in the same rough manner but did not complete the task and eventually refused to finish packing Ms. Pellegrino’s bags. Ms. Pellegrino then took her items, tossed them outside the screening room and proceeded to leave. The two TSO’s in the room claimed that Ms. Pellegrino took her bags and struck a TSO with her bag as she was leaving the room. Ms. Pellegrino denies striking a TSO with her bags at any time. Philadelphia police officers were called to the airport where they arrested Ms. Pellegrino and held her for eighteen hours before releasing her. Ms. Pellegrino was charged with ten criminal counts but was eventually found not guilty due to testimony being deemed inadmissible. Ms. Pellegrino then brought a civil action in the Eastern District of Pennsylvania against the U.S., the Transportation Security Administration (TSA) and three of the TSO’s who searched her. With the exception of one count of property damage that was settled, the court ruled against Ms. Pellegrino on all actions. Ms. Pellegrino appealed. The United States Court of Appeals for the Third Circuit ruled 2 – 1 in favor of the Government to uphold the district court rulings against Ms. Pellegrino. LEARN MORE, LEARN MORE

Analysis
The lengthy decision by the Court of Appeals is a curious one and one that has the potential to lead to unwanted consequences. In its opinion, the court’s reasoning turned on how a transportation security officer was classified. Under the Federal Tort Claims Act (FTCA), the federal government and its employees are immune from civil or criminal liability under the doctrine of sovereign immunity except in specific circumstances. Under one of these exceptions “investigative or law enforcement officers” can be held liable and sued for actions such as an assault or a false arrest. However, Judge Cheryl Ann Krause’s opinion said that TSA agents were only “screeners” and not “investigative or law enforcement officers” as defined in the Federal Tort Claims Act. Thus, their searches of travelers was deemed only an “administrative” search that was not based on probable cause or suspicion, standards that an investigative or law enforcement officer would use as a basis for a search. Thus, TSA agents could not be sued under the Federal Tort Claims Act.

Judge Thomas L. Ambro’s dissenting opinion noted that this type of search of travelers is no different from when a police officer pulls over a driver for a traffic stop. He also pointed out that if people are not allowed to sue TSA agents under the Federal Tort Claims Act then people would not have a legal remedy for even the most extreme TSO behavior such as sexual assault and a fabricated criminal charge against a traveler. While the legal analysis of the decision seems somewhat rigid, it is clear that Congress never intended for a legal scheme where a person would have no legal remedy whatsoever. The FTCA itself preserves the doctrine of sovereign immunity but still has limited exceptions for people to bring suit. The flaws illustrated by this case dictate that Congress needs to act and act soon to fix the FTCA so travelers and TSO’s will know the legal limits of how a traveler can be physically treated when subject to a search at an airport. 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

Did the Supreme Court Decide a Free Speech or “Pro – Life” Case?

Did the Supreme Court Decide a Free Speech or “Pro – Life” Case?

Brief #48—Civil Rights

Policy Summary
In October 2015, the California State Legislature passed the Reproductive FACT (Freedom, Accountability, Comprehensive Care and Transparency) Act. The law was aimed at crisis pregnancy centers (CPC’s), which are typically Christian non-profit groups designed to counsel pregnant women against having an abortion. If the place is a licensed healthcare facility then the California law required the following statement to be posted in the facility: “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women.” If the place is an unlicensed facility offering pregnancy related services, then the law required the following separate statement to be posted in the facility: “This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of all of the services, whose primary purpose is providing pregnancy-related services.” The National Institute of Family and Life Advocates (NIFLA) on behalf of 100+ CPC’s brought a lawsuit to challenge the law on the grounds that it violated their First Amendment Free Speech and Free Exercise of Religion rights. The case was decided against NILFA on technical grounds at both the federal district court and circuit court of appeals levels. NILFA then appealed to the U.S. Supreme Court and there requested whether California was violating the First Amendment by compelling them to post messages contrary to their religious beliefs. The Supreme Court, in a 5 – 4 decision, decided in favor of NILFA and held that the Reproductive FACT Act violated the First Amendment. LEARN MORE, LEARN MORE

Analysis
The National Institute of Family and Life Advocates v. Becerra case was a unique case because of how people tried to classify the case. On the one hand, it was a free speech case that illustrated the dangers of having the government dictate to organizations as to what they should say. And on the other hand, it was seen as an abortion case and the possibility that the government would try to overturn the landmark 1973 Roe v. Wade ruling legalizing abortion in the United States. The case was eventually decided on free speech grounds. In the majority opinion written by Justice Clarence Thomas, he relied on traditional free speech legal analysis by distinguishing whether the law regulating the speech was content-neutral or content-specific. Content-neutral regulations do not regulate the content or message of a speech but only the time, manner or place of the speech. Content-specific regulations are laws that are aimed to regulate speech based on the message contained in the speech. Justice Thomas called the notices of the California FACT Act a content-specific regulation because the required statements were a government-scripted message that compelled a group to speak a particular message even if they did not want to say it. Based on Justice Thomas’ analysis, the case can be seen as a win for free speech advocates.

However, Justice Breyer’s dissent made an interesting and potentially significant point. Justice Breyer examined a prior 1992 Supreme Court case, Planned Parenthood of Southeast Pennsylvania v. Casey, and pointed out that the Court there did not find a First Amendment Free Speech violation when Pennsylvania required a doctor to tell a patient information about adoption as an option. The facts in Casey and from this case both required doctors to say something they may not have agreed with before performing an abortion. Yet, the required speech about adoption as an option from Pennsylvania was upheld while the required notices about abortion as an option from California were struck down.

While the result in the current California case is likely correct in its free speech analysis, it is the effect on abortion rights that is alarming. Hostility towards abortion rights may be coming front and center in the very near future and may be susceptible to differing treatment as Justice Breyer’s dissent brilliantly illustrates. 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 Brendan Church

President Trump Suggests Depriving Immigrants of Constitutional Due Process Protections

President Trump Suggests Depriving Immigrants of Constitutional Due Process Protections

Brief #47—Civil Rights

Policy Summary
On June 24, 2018, President Donald Trump tweeted remarks that suggested that immigrants who cross the border into the United States be denied certain legal protections. In his tweet, the President said, “We cannot allow all of these people to invade our country. When somebody comes in, we must immediately, with no judges or court cases, bring them back from where they came.” Section One of the 14th Amendment to the United States Constitution says “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” LEARN MORE, LEARN MORE

Analysis
The current heated debate regarding immigration in the United States today has ignited interest in the framework of laws that apply to immigrants who are physically inside or trying to enter the United States. The June 24 tweet by President Trump appears to have been a trial balloon to gauge whether there would be any interest in implementing a policy along the lines of what the President suggested. Even if President Trump floated the idea, the fact of the matter is that the suggestion of depriving illegal aliens of legal rights is contrary to American Supreme Court case law that goes back nearly one hundred and thirty years. The key term in the 14th Amendment (and in the Fifth Amendment, the companion due process clause applicable to the Federal Government) is the word “person.” The term clearly applies to each and every person. It does not distinguish persons based on their citizenship, their race or any other differing factor. The only criterion to be eligible for protection under the Amendments, such as due process of law, is to be a human being.

The Supreme Court reiterated this long accepted principle in the 2001 case Zadvydas v. Davis. It stated that illegal aliens are entitled to “due process” even when their presence may be “unlawful, involuntary or transitory.” Due process does not mean that the United States must give the immigrants what they wish for which in these cases means permanent entry into the United States. But since the U.S. is looking to deprive immigrants of this liberty interest, due process means that the government must follow established legal procedures before they are denied entry into the U.S. Due process thus ensures that every person’s situation must be given a fair chance to be heard, competent legal counsel to advocate on their behalf and a neutral decision maker (usually a judge) that will rule on their petition to enter. President Trump’s suggestion appears to be nothing more than an appeal to his voting base and does not seem likely to have any effect on this well – established and universally accepted legal principle as applied to immigrants seeking to enter the U.S. 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 Cole Patrick

Supreme Court Protects Cell Phone Privacy Rights

Supreme Court Protects Cell Phone Privacy Rights

Brief #46—Civil Rights

Policy Summary
On June 22, 2018, the U.S. Supreme Court handed down its decision in the Carpenter v. U.S. case. The question before the Court was whether the warrantless search and seizure of cell phone records, including location and movements of the cell phone user, violates the Fourth Amendment. In order to physically place Timothy Carpenter and his accomplices near the location of a number of robberies in the Michigan and Ohio area, law enforcement personnel acquired his cell phone records from his cell phone provider company. His cell phone helped to determine his location and proximity to the robberies because his phone sent digital data to cell phone towers that were in the vicinity of the robberies. Law enforcement did not request or execute a search warrant but simply asked the cell phone provider company to hand over the info of Mr. Carpenter’s cell phone records. This information was critical in helping to convict him. The U.S. Court of Appeal for the Sixth Circuit ruled in favor of the government in Mr. Carpenter’s appeal of his conviction. He appealed to the Supreme Court and the Court, in a 5 – 4 decision, reversed the judgment of the Court of Appeals. LEARN MORE, LEARN MORE

Analysis
The decision in the Carpenter case is a landmark decision for the future of digital and privacy rights in the United States. Chief Justice John Roberts’ opinion examined two distinct legal concepts and was able to resolve the potential conflict that did not automatically favor law enforcement interests over individual interests. Chief Justice Roberts went on to explain that traditionally a person moving about in public does not have a reasonable expectation of privacy in those movements and can be tracked and monitored by law enforcement without a warrant. But technology and cell phones has now enabled law enforcement to not merely monitor a person’s movements but to go back in time and collect a complete history of a person’s movements going back months and even years. If no warrant was required to acquire this digital information, then it seemed that law enforcement would rarely, if ever, ask for a search warrant because they could claim they are merely monitoring a person’s movements in public.

Chief Justice Roberts then analyzed the “third – party doctrine” a legal concept that states “a person has no expectation of privacy in information he voluntarily hands over to third parties.” A literal reading of this legal rule would appear to side with the government, as they would then be permitted to acquire a person’s cell phone records without the requirement of a warrant. Chief Justice Roberts reasoned that these two lines of legal jurisprudence did not apply to the cell phone records of this case because of the “unique nature” of cell phone records and the massive amounts of personal information people carry on their cell phones, which has become “indispensable to participation in modern society.” He reasoned that people would not expect law enforcement to have the ability to track their public movements over an extended period of time as the technology of cell phones permit. And, he reasoned that a person who carries a cell phone does not voluntarily hand over his cell phone data but shares the info “abstractly” and without an “affirmative act on his part.” This means that if law enforcement wants to acquire cell phone records in a criminal investigation it must comply with the probable cause and warrant requirements of searches and seizures under the Fourth Amendment. Chief Justice Roberts summed it perfectly when he said the state does not have “unrestricted access to a wireless carrier’s database of physical location information.” 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: Anthony Garand

Gerrymandering and the Supreme Court: A Review of Recent Rulings

Gerrymandering and the Supreme Court: A Review of Recent Rulings

Brief #44—Civil Rights

Policy Summary
On September 12, 2017, the United States Supreme Court issued a ruling that temporarily prevented implementation of a federal district court ruling that found state electoral districts in Texas were illegally drawn to suppress minority voters. This ruling comes on the heels of the U.S. Supreme Court’s June 2017 decision to agree to hear a case from Wisconsin, Whitford v. Gill. That case is similar to the case from Texas in that voters are challenging the way a state draws it’s electoral districts because of the way certain groups of voters are favored over other groups of voters in order to give one party (in both states, the Republican Party) an unfair and even unconstitutional advantage over the other political party. LEARN MORE, LEARN MORE, LEARN MORE

Analysis: Gerrymandering is an American political tactic that dates back nearly 200 years. The premise is simple – to draw state electoral districts and congressional districts in such as a way as to ensure that a candidate of a particular political party will have a very good chance of winning. Districts are constitutionally required to be roughly equal in terms of population, and they usually are, but the unusual shapes of certain districts – with elongated arms and hooks that curve around illogically  – are often intentionally drawn that way so as to favor Republican or Democratic candidates.

The current problem is that the drawing of electoral districts are being manipulated and not representative of how the electorate is voting in the state. For example, in Wisconsin Republican legislators re-drew the electoral map after they came to power in 2010. When the 2012 election came around Republicans in Wisconsin won 49 percent of all votes cast statewide in congressional elections but ended up winning 63 percent of the congressional seats. In this map of recent trends, the states of Michigan, North Carolina, Pennsylvania and Wisconsin show more Democratic votes than Republican overall but less Democratic congressional seats. Why are states that have more Democratic voters sending less Democrats and more Republicans to Congress? The answer lies in which political party is currently in power and how they choose to draw the electoral maps of their state. The hope is that the Supreme Court will take the Whitford v. Gill case and articulate a framework to determine when “gerrymandering” crosses the line and becomes unconstitutional. Each and every vote should count and should be reflective of what the electorate wants instead of allowing the process to be manipulated by legislative leaders in order to suppress votes from minority communities and keep their party in power. LEARN MORE, LEARN MORE

Update
On January 9, 2017 a federal three – judge panel in North Carolina blocked the implementation of North Carolina’s proposed congressional district map because it was deemed unconstitutional. The court found that the drawing of congressional districts by the North Carolina Legislature were motivated by “invidious partisan intent” and were intended to give the Republicans an advantage in sending congressional candidates to Washington over Democratic candidates. This decision is key because it is the first time a federal court has ruled against partisan gerrymandering. Also, it signals that gerrymandering based on party politics and efforts to suppress votes in order to give Republican candidates an edge will likely no longer be tolerated. With this decision and the Whitford v. Gill case currently before the U.S. Supreme Court, voters may now see the court articulate rules that will prevent states from forcing candidates from a preferred political party on constituents. The hope is that the selection of congressional representatives will be more reflective of the voting trends in the state rather than a product of political party manipulation by state legislatures.  LEARN MORE, LEARN MORE, LEARN MORE

Update #2
On June 18, 2018, the United States Supreme Court issued an opinion in the highly anticipated gerrymandering case Gill v. Whitford. In an unexpected 9 – 0 decision, the high court avoided issuing an opinion on the merits of the case and instead rendered a decision that focused on the plaintiff’s “standing” to bring the case. The legal doctrine of standing requires that a plaintiff’s case not be hypothetical and that he/she demonstrate that they “prove concrete and particularized injuries” and that they have “a personal stake in the outcome.” This opinion is disappointing because the court seemed to imply that the trial evidence showing harm to voters in Wisconsin was not sufficient to show that the district maps drawn by the Republicans in power harmed individual voters. The reasoning of the court is suspect considering that this case began when Republicans manipulated the drawing of state district maps to win 60 of 99 Wisconsin State Assembly seats (more than half) despite only winning 46% of the total votes cast statewide.

Fortunately, Justice Elena Kagan wrote a concurring opinion that agreed with the majority opinion’s decision to vacate and remand the case but provided a roadmap to succeed on cases of this kind in the future. Her opinion provided information on how a future plaintiff could satisfy “standing” and proceed with a case on either a vote dilution or a First Amendment Right of Association theory. Throughout the text of the opinions in the case, it is clear that the court recognizes “gerrymandering” as a problem that needs to be reined in despite disagreements on how to do that. Once the issue of “standing” and “sufficient proof of harm” are resolved on remand at trial, with Justice Kagan’s informative concurring opinion on the best legal theory to proceed with, a future Court should finally be able to address and articulate a legal standard that prevents future re-districting abuses, hopefully sooner rather than later. 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 Claire Anderson

Trump Forced to End Family Separation at United States/Mexico Border

Trump Forced to End Family Separation at United States/Mexico Border

Brief #45—Immigration

Policy Summary
On June 20, 2018, the people were heard (haza!) and President Trump signed an executive order (“EO”) temporarily ending the immigration procedure of separating children from their parents. Section 1 of the EO states that the Trump Administration’s policy is “to maintain family unity, including by detaining alien families together where appropriate and consistent with law and available resources.” Section 3, titled Temporary Detention Policy for Families Entering this Country Illegally, states that during the pendency of status determinations, “The Secretary of Homeland Security (Secretary), shall, to the extent permitted by law and subject to the availability of appropriations, maintain custody of alien families . . . .” Wonderful, children will not be separated from their parents upon apprehension. Not wonderful, they are just moving from cages to criminal custody.

Since 1997, a bedrock legal limit set by the U.S. District Court for the Central District of California in Flores v. Session, is that children (those under 18 years of age) are not permitted to be criminally detained for more than twenty (20) days. Hence the EO section’s title of “Temporary Detention Policy . . .” According to Flores, children must be separated from their parents on the 21st day and sent back in DHHS custody – which is the root of our current need for change. But, President Trump anticipated this criticism, and included subsection (e) to the Temporary Detention Policy.

In this section 3(e), Trump orders Attorney General Jeff Sessions to “promptly file a request with the [Flores court] in a manner that would permit the Secretary, under present resource constraints, to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.” Children will thus follow their parents in the detention process. If granted, does this mean that the sponsorship system will no longer apply because the children are no longer in DHHS custody? Are children being sent to jail with their parents? Are children being criminally prosecuted as adults? How are we supposed to analyze quickly enough to produce solutions protecting their human rights?

Analysis
A wise scholar (and doctor) once said that when dealing with the federal government, “strive to give six and take four.” Adopting her wisdom, we can consider Trump’s June 20th executive order in the “four” column. Positive light must shine on the recent humanitarian success before diving into the darkness. The voice of Americans around the country effectively ended the procedure of separating children from their parents! We are Trump’s kryptonite; democracy at its finest.

Now, the policy ended because President Trump issued an executive order. An EO is essentially an order from a boss to its employees. It provides direction to civil servants under the Executive Branch. Senate Democrat Leader Chuck Schumer of New York preferred an executive order over legislation due to its efficiency and quick implementation measures.

In line with Schumer, President Trump expressly refused to sign any Senate or House bill considering a termination of the separation policy. For weeks Trump stated that he was forced to separate families due to laws enacted by Democrats. If that was so, how are the people supposed to rationalize the fact that today Trump signed an executive order ending the policy he previously said he was forced to enforce? Again, it is crucial to identify intent to prepare for what follows – and we know it is generally not pleasant.

Enacting legislation is an act of Congress, the Legislative Branch. Brilliantly, our Legislative Branch’s power is separate from the Executive Branch, which is where Trump and immigration policy call home.  (Immigrant courts are part of the Justice Department and also considered part of the Executive branch.)However, the power of media informed the world of the vile inhumanity implemented on families and children due to the Trump Administration.

Trump knew something needed to happen, and to Trump, an executive order is superior to legislation because it is within his executive power. Although he may not have known that “Nambia” is not a country, we can strongly assume Trump is aware of where and how he can use his executive authority. Now, the current immigration policy via the EO was created by the President, which can thus be changed by the President, or terminated by the President. Allowing Congress to enact immigration legislation takes power away from the Executive. Trump wants to consolidate power, not separate it.

Remember what the President said about murderous dictator Kim Jung Un: “He Speaks and his people sit up in attention. I want my people to do the same.” Trump is greatly mistaken. We are not “his people,” he is “our president.” He works for us. And the people will rise, but they will be ordering Trump’s attention.

Resistance Resources

This Brief was developed by USRESIST NEWS Analyst J.R. Phillip: Contact Justin@usresistnews.org

Photo By: Daniel Apodaca

Ohio To Purge Eligible Voters From Voting Rolls

Ohio To Purge Eligible Voters From Voting Rolls

Brief #43—Civil Rights

Policy Summary
On June 11, 2018, the United States Supreme Court rendered a decision in the case Husted v. A. Phillip Randolph Institute. The case began in 2015 when U.S. Navy veteran Larry Harmon tried to vote in his home state of Ohio but was turned away. Harmon learned that even though he had resided in the same place for the last sixteen years his name had been removed from the voter rolls. The reason given was because he did not vote in 2009 and 2010. In Ohio, the state employs a program called the “Supplemental Process” which authorizes the procedures used to remove eligible voters (because of death or moving to another jurisdiction) from the state’s voter rolls. A voter in Ohio who does not vote in two consecutive federal elections is then sent a notice to his address where he is asked to return a self – addressed and pre – addressed card confirming that he/she has not moved and still resides at that address. If the card is not returned, the voter can only be removed after four years have elapsed provided that they do not engage in any voting activity in that district during those subsequent four years. Ohio resident Larry Harmon claims he did not receive any sort of notice after he did not vote in 2009 and 2010. He then found himself ineligible to vote when he tried to vote in 2015 because Ohio had removed him from the voting rolls. The American Civil Liberties Union (ACLU) brought a case to stop Ohio’s voter purge process but lost at the federal district court level but then won on appeal to the Sixth Circuit Court of Appeals. The case was appealed to the Supreme Court who then decided in a 5 – 4 vote that Ohio’s Supplemental Process procedures were permissible and did not violate the National Voter Registration Act (NVRA) of 1993. LEARN MORE, LEARN MORE, LEARN MORE

Analysis
The opinion of the court is misguided on a technical and public policy level. The National Voter Registration Act (NVRA) of 1993 in Section 20507(b)(2) specifically prohibits the removal of the name of a person eligible to vote because of a person’s failure to vote, except in limited circumstances. But here, the Supplemental Process employed by Ohio does exactly what the NVRA was enacted to prevent – it removes voters for simply not voting. Justice Alito, who authored the majority opinion, is not convincing in supporting Ohio’s voter purge program because his analysis merely examines if the Ohio Supplemental Process followed the procedures in the NVRA to set up a state program to purge voters. While it does follow the procedures, he misses the point that Justice Breyer makes in the dissenting opinion, which is that the procedures are flawed and do not represent a “reasonable effort” by Ohio to examine other options as to whether a voter has moved or has died. In his own words, Justice Alito said that his analysis is to only examine if Ohio’s law “violates federal law” (the NVRA) and nothing more. Had Justice Alito taken the time to look closer he should have seen that voters are being removed from Ohio’s voter rolls for not voting, something that has been prohibited since 1993 with the NVRA.

And on a public policy level, the decision is a step back in the efforts to include all eligible voters from voting if they choose to do so. Justice Sotomayor made two interesting points in her dissent. She noted that in African American neighborhoods in Cincinnati, Ohio 10% of eligible voters were purged while only 4% of eligible voters in white suburban neighborhoods were purged. And she also pointed out that numerous other states have been able to keep their voter rolls updated without resorting to a scheme that identifies eligible voters by their failure to vote in consecutive elections. Her argument that low – income and minority voters may be targeted for removal from voting lists certainly has merit. Her argument recognizing the effect of Ohio’s law on minority communities on a human level is deserving of further examination instead of relying solely on Justice Alito’s approach as to whether flawed procedures were followed or not. 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 Elliott Stallion

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