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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

 

Supreme Court Issues Landmark LGBTQ Decision But Leaves Other Issues For Future Cases

Brief #128—Civil Rights
By Rod Maggay
On June 15, 2020 the United States Supreme Court handed down the decision Bostock v. Clayton County. The case consolidated a number of cases because of a similarity of fact patterns and issue at the heart of each case. In Bostock, a county employee was fired for “conduct unbecoming” when the county discovered that the plaintiff had joined a gay recreational softball league.

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President Trump Engages in Free Speech Fight with Twitter

Brief #36—Economics
By Rod Maggay
on tweets emanating from President Trump’s verified Twitter account. On a May 26, 2020 tweet from the President about perceived mail – in ballot fraud, Twitter for the first time added a link at the bottom of the tweet that said “Get the facts about mail – in ballots” which was preceded by an exclamation mark in an oval. That signaled that there were other facts to the issue that were not mentioned in the President’s tweet

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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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Ban On Further Protest Activity By Arrested Protestors Likely Unconstitutional

Ban On Further Protest Activity By Arrested Protestors Likely Unconstitutional

Policy Summary: For more than sixty consecutive days, protesters in Portland, Oregon have marched and protested throughout the city to protest against racism and police brutality. The protests started in the aftermath of the killings of George Floyd at the hands of Minneapolis police officers in May 2020. At times in Portland, protesters have clashed violently with law enforcement officers with officers sustaining a number of injuries and protesters suffering physical harm as well. A number of protesters have been arrested by federal officials (due to concerns about violence to buildings on federal property) and were detained in federal holding facilities. Many of the protesters were charged with the offense of “failing to obey a lawful order” which is classified as a class “c” misdemeanor.

The website ProPublica has reported that a number of protesters detained were only released on the condition that they “may not attend any other protests, rallies, assemblies or public gathering in the State of Oregon.” A separate release order document stated, “Do not participate in any protests, demonstrations, rallies, assemblies while this case is pending.” Protestors released on July 23 had these bans on protesting handwritten into their release documents. A protester released on July 24th did not initially have the ban on protesting in his release order. But his order was modified to include the ban. Of the fifteen protesters released on July 27 three of the protesters had the protest ban added to their release orders. Had the protesters refused to agree to the protest ban, they likely would not have been released from custody. The majority of the orders were signed by U.S. Magistrate Judges John V. Acosta and Jolie A. Russo. LEARN MORE

Policy Analysis: The disturbing news coming out of Portland is a clear violation of an individuals’ constitutional right. The First Amendment provides individuals with the right to free assembly and so it is astonishing that the U.S. Magistrates who signed the release orders imposed the bans on protesting in the first place.

Legal scholars have begun to weigh in and there is near unanimous agreement that these bans are likely unconstitutional because of how overbroad the bans are written. The protesters were arrested for their activities related to the racism and police brutality protests but the wording of the bans can conceivably be applied to any other public gathering that the protester might choose to attend. What if a protester recently released wanted to attend an environmental protest or a political rally? Under the terms of the protest ban as written the protester would be in violation of the court order for attending one of those events.

Additionally, imposing the protest ban on the individuals as a condition of their release forces the individual to give up a constitutional right in order to be released which is not comparable to the crimes they have been charged with. The U.S. Attorney’s Office in Oregon has even weighed in and stated that they did not ask for the “no protest” restriction and that the court on its own added the condition. Many of these protesters have been charged with only a misdemeanor. These were not severe or life threatening crimes and so individuals should not be forced to give up their right to protest and advocate for closely held beliefs and issues. By silencing an individual in this way it indirectly implicates an individual’s First Amendment Free Speech rights because the government is telling a person what rallies they can attend what they can and cannot say at public gatherings. These conditions of release are likely unconstitutional and they should be modified to remove the “protest bans” as soon as the court can hear the cases. 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.

Florida’s Vote Restoration For Felons Suffers Setback At Supreme Court

Florida’s Vote Restoration For Felons Suffers Setback At Supreme Court

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 the court 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. 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

Update: On July 16, 2020 the Supreme Court of the United States issued an order in the case Raysor v. De Santis. After a long, complex and winding road through the Florida judiciary and then the federal judiciary the case reached the Court of Appeals for the Eleventh Circuit. The federal district court had issued a permanent injunction which resulted in the law being allowed to go into effect with a number of remedies crafted by the trial court. Judge Robert Hinkle allowed felons to rebut the presumption that they were unable to pay as determined by the State, allowed felons to seek how much they owed in order to vote (this was likely a rebuke to Florida due to the state’s admission at trial that they did not keep accurate records nor had a workable database as to what felons owe the state in terms of fines and fees) and ordered the state to let felons register to vote without being prosecuted for a violation of the law. But when the case was appealed the Court of Appeals for the Eleventh Circuit issued an order without an opinion that did not allow the remedies from the trial court to go into effect. That move essentially did not permit felons to have their voting rights restored, for the moment. The case was then appealed to the U.S. Supreme Court. The Supreme Court upheld the Eleventh Circuit court order which in effect leaves 1.4 million Florida felons without the right to cast a ballot in upcoming state and federal elections in Florida for the foreseeable future. The case will proceed on the merits at a later date but the emergency application to have the law reinstated immediately has been denied.

Justice Sonia Sotomayor issued a dissent to the Supreme Court order. She brought up the Purcell Principle, which has played a leading role in a number of Supreme Court decisions regarding voting rights this term. The Purcell Principle, which comes from the 2006 Supreme Court case Purcell v. Gonzalez, cautions against making voting changes so close to election day in order to not confuse and burden voters who might not be up to the date on the new changes. As Justice Sotomayor sees it, by blocking the law from going into effect the court is creating more confusion for felons as they now cannot rely on a law to figure out whether they are eligible to vote. If the goal is to create a stable voting atmosphere devoid of last minute voting rules changes, then why did the Supreme Court choose a path that makes a number of last minute voting changes that causes a felon to be unsure whether they are eligible to vote or not? Justice Sotomayor’s dissent is a pointed rebuke to the reasoning and rationale the Court has charted this term with regard to voting rights. It as a disappointing moment for the issue of vote restoration for felons but the case still remains to be played out as a hearing on the merits of the issue (as well as the application of the Twenty – Fourth Amendment) is scheduled for August 2020 in the Court of Appeals for the Eleventh Circuit. USRESIST NEWS will provide updates and analysis for our readers as they continue to develop.

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.

Supreme Court Likely Invoked Purcell Principle to Deny Expanded Access to Voting in Texas and Alabama

Supreme Court Likely Invoked Purcell Principle to Deny Expanded Access to Voting in Texas and Alabama

Policy Summary: Over the last few weeks the U.S. Supreme Court issued two orders regarding voting rights, which could have an effect on the November 2020 election. On June 26, 2020 the Supreme Court issued their order in Texas Democratic Party v. Abbott. The case started when the Texas Democratic party initiated a lawsuit to force Texas Governor Abbott and the Texas Attorney General Ken Paxton to permit all eligible Texas voters to vote by mail regardless of their age or physical condition. Because of COVID-19 Governor Abbott had postponed the July 2020 runoff elections and doubled the time period for early voting by personal appearance. However, Texas Democrats did not feel that this went far enough to protect citizens from voting during the worldwide pandemic. They brought suit to suspend current rules on mail – in voting and make the option available to every Texas citizen who wanted to vote by mail. The case went through the Texas judiciary system where the Texas Supreme Court ultimately stayed the preliminary injunction granted to the Texas Democratic Party pending the outcome of the case in federal district court where a connected proceeding was in progress. The federal district court again sided with the plaintiffs. The case was appealed to the Circuit Court of Appeals for the Fifth Circuit which ruled against the plaintiffs resulting in an appeal to the U.S. Supreme Court. The Supreme Court issued an unsigned order upholding the order issued against the plaintiff’s claims although the order did include a minimal one-line comment from Justice Sotomayor.

On July 2, 2020 the Supreme Court issued an order in Merril v. People First of Alabama. The case originated when a number of civil rights groups brought a lawsuit to help lift usual voting restrictions for voters who wanted to vote but had concerns about voting in person during the COVID-19 pandemic. U.S. District Judge Abdul Kallon ruled that curbside voting would be permitted (where voters can drive up, receive a ballot, fill it out in their car and give it back to an election worker). And, he ruled that the rules in Alabama for absentee ballots requiring two witnesses to sign off would not be required. The case was then appealed to the U.S. Supreme Court which blocked Judge Kallon’s orders, ruling 5 – 4 along conservative lines. LEARN MORE, LEARN MORE

Policy Analysis: The orders issued by the Supreme Court are notable because of the legal issues they deal with and the near lack of explanation or legal analysis explaining the rationale for the decision. Both cases are voting rights cases during the time of the COVID-19 pandemic and deal with whether or not voters in Texas and Alabama will be able to cast a ballot without having to put their health at risk. The options offered in Texas and Alabama were actually good options that were designed to let people vote safely while allowing the elections to be conducted efficiently. The Democratic Party in Texas sought to include every eligible voter who wanted to vote by mail. And Alabama was set to allow voters to vote in their cars without ever leaving their car and to do away with witness requirements for absentee ballots. But the Supreme Court did not let any of these temporary measures go into effect and simply issued an order without the usual long opinion to explain why.

But even if the Court did not lay out their reasoning the reason for the Court’s decision can likely be found in the Court’s voting rights opinion from Wisconsin that they issued this last May in Republican National Committee v. Democratic National Committee and in a little known legal doctrine called the “Purcell Principle.” The basis of the Purcell Principle is simple – courts should not issue orders which change election rules in the close period of time before an election. In the Wisconsin case, the Court reasoned that changing the rules so close to election time might cause confusion for voters and might even be a reason for voters not to vote. There, the Court ruled that changing the rules to the absentee ballot rules would violate this principle but instead their ruling had the perverse effect of having a significant number of voters not have their absentee ballots counted. The situations in Texas and Alabama are nearly the same – voters are worried about being infected with COVID-19 and had an option to vote remotely and yet the Supreme Court nixed those efforts with unexplained orders. It seems highly likely the Court relied on the Purcell principle. Shouldn’t the Court have at least explained and put pen to paper the merits of the Purcell Principle and the rationale for relying on the Purcell Principle in a COVID-19 situation? The right to vote is one of the most cherished fundamental rights but with the issuance of these two orders the Court instead looks biased when the rule it relied on prevented thousands of people from voting and looks even worse when it failed to give a full explanation for blocking the efforts to help them vote. While the Supreme Court in the Wisconsin decision said that it wanted to prevent confusion among voters its efforts here have instead caused more unnecessary confusion. The states still have a chance to make the necessary changes to the absentee voting rules before November and hopefully Texas and Alabama can make things right and expand access to the ballot box for their state’s most vulnerable voters. LEARN MORE, LEARN MORE, LEARN MORE

Resistance  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.

In Disappointing Decision Supreme Court Rules State Funds Can Be Used At Religious Schools

In Disappointing Decision Supreme Court Rules State Funds Can Be Used At Religious Schools

By Rod Maggay

Policy Summary: On June 30, 2020 the United States Supreme Court handed down its decision in the case Espinoza v. Montana Department of Revenue. In that case, Montana established a scholarship program where residents could gain a maximum $150 tax credit for donations they make to organizations that give scholarships that can be used for tuition at private schools. However, Montana had a state constitutional provision that barred government aid and funds to be used at private schools “controlled…by any church, sect or denomination.” The tuition could still have been used at schools or academies that had no religious affiliation. As a result of this state constitutional provision Montana’s Department of Revenue implemented a rule blocking use of the scholarship money at religious schools. Three mothers who had applied for the scholarship were subsequently blocked from using the monies at Stillwater Christian School in Montana. The families brought suit in state court where the plaintiffs prevailed. The case was appealed to the Montana State Supreme Court, which reversed on the grounds that the monies from the state scholarship program violated the Montana state constitution because state taxpayer monies were used to aid religious schools. The court further invalidated the entire scholarship program. The case was then appealed to the U.S. Supreme Court which decided 5 – 4 that Montana’s constitutional no – aid provision discriminated against religious schools and families in violation of the U.S. Constitution’s Free Exercise Clause.

The Free Exercise Clause in the First Amendment of the U.S. Constitution states “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof…” LEARN MORE

Policy Analysis: The decision by the Supreme Court was disappointing although not unexpected. With the five vote conservative majority on the court now it was accepted that a number of decisions would be decided in line with conservative interests. However, this case raised a number of eyebrows at how this conservative majority went to great lengths to reach the decision they wanted.

The Free Exercise Clause has come to stand for the notion that persons are protected from “indirect coercion or penalties on the free exercise of religion.” What that means is that the government may not place a burden on how a person worships or in what religious beliefs they choose to follow. With that in mind, Justice Ruth Bader Ginsburg takes the majority opinion to task and states that the inability of the Montana families in the case to use the scholarship money at religious schools does not burden them because they are not being pressured to alter or modify their religious beliefs by the state. Even without the scholarship money they are still free to believe in whatever religious beliefs they choose to follow and can still send their daughters to a religious school of their choosing. The majority opinion thus got it wrong when it said, “availability of benefits [depends on] recipient’s willingness to surrender [its] religiously impelled status.” Montana never forced the parents and families to change their religious beliefs in order to get the scholarship money yet the majority opinion tried to present the case this way.

Additionally, Justice Sotomayor added a much more blistering dissent that raises more questions as to why the majority opinion went down the road it did. Her dissent points out that many of the issues of the case were properly decided by the Montana Supreme Court and that the court had even declined to hear the federal issues connected to the case. Based on past legal precedent this should have been enough for the U.S. Supreme Court to decline to hear and decide the case. What likely happened is that conservative justices on the court wanted to hear the case in order to give a boost to religious rights. And, when analyzing the merits of the case Justice Sotomayor also said the majority opinion got it wrong and puts up a vigorous defense and one of the best explanations for the Free Exercise Clause. She correctly states, “the right to exercise one’s religion [does] not include a right to have the State pay for that religious practice.” Finally, she states that a state that decides to not fund religious activity is not “disfavoring” religion but making a strong choice in remaining secular as the First Amendment Religious Clauses demand. While the conservative justices were likely looking for a way to have religious schools and thoughts flourish in society, Justice Sotomayor’s dissent aptly shows that using state taxpayer money is not the way to go and is clearly against long held constitutional principles.

Simply put, this case represents an unwise choice, from a legal standpoint, to try and put Christian based values front and center in American life at the expense of American taxpayers. That is contrary to the Free Exercise Clause of the First Amendment and the concept of “separation of church and state.” American citizens must continue monitoring the direction of the Supreme Court and hope an opportunity arises where a more secular justice can be appointed in order to give a more traditional meaning to the First Amendment Religious Clauses. 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.

Supreme Court Issues Landmark LGBTQ Decision But Leaves Other Issues For Future Cases

Supreme Court Issues Landmark LGBTQ Decision But Leaves Other Issues For Future Cases

Policy Summary: On June 15, 2020 the United States Supreme Court handed down the decision Bostock v. Clayton County. The case consolidated a number of cases because of a similarity of fact patterns and issue at the heart of each case. In Bostock, a county employee was fired for “conduct unbecoming” when the county discovered that the plaintiff had joined a gay recreational softball league. In Altitude Express, Inc. v. Zarda, Donald Zarda was fired by his employer after they discovered that he was gay. And in R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, Aimee Stephens initially presented herself as a male to the funeral home when she interviewed for the job but after she was hired she informed her employer that she intended to live and work as a woman. She was subsequently fired. In each case the fired employee brought a lawsuit under Title VII of the Civil Rights Act of 1964 alleging discrimination based on sex in the appropriate federal district court with each eventually finding their way to a separate circuit court of appeals. The Circuit Court of Appeals for the Eleventh Circuit ruled that the employer was justified in firing Gerald Bostock. However, the Second Circuit in Mr. Zarda’s case and the Sixth Circuit in Ms. Stephens’s case both ruled that that each had a claim to sex discrimination under Title VII and allowed their cases to proceed. The cases were then appealed to the Supreme Court.

In a 6 – 3 decision authored by Justice Neil Gorsuch, the court held that an employer who fires an employee for being gay or transgender violates Title VII of the Civil Rights Act of 1964. LEARN MORE

Policy Analysis: The decision in the Bostock case is seen as a landmark ruling for LGBTQ rights but there are other issues lurking in the decision that needs to be monitored in case there is an attempt to water down the decision or significantly alter its effect in the future.

First, the case was considered a surprise because of the current makeup of the court. Justices’ Neil Gorsuch and Brett Kavanaugh, two recent appointees by President Trump, are considered conservative jurists and their appointments shifted the balance of the court and gave the court a solid five vote conservative majority.

So while the LGBTQ community is celebrating the decision, it is important to note that this case was more about rules of statutory construction (meaning of the phrase “because of sex) rather than a vindication of LGBQT rights based on constitutional principles. Justice Gorsuch’s majority opinion tries to take an “ordinary meaning” approach and finds “because of sex” based on biological distinctions between male and female and how “because of” is used in other statutes without the word “sex.” Justice Alito’s dissent wanted to interpret the term “sex” as it meant when the statute was passed in 1964. But Justice Kavanaugh had the most interesting argument in his dissent because he found Justice Gorsuch’s analysis based on a “literal meaning” of the phrase instead of an “ordinary meaning” of the phrase which can elicit more than one meaning especially when applied to the word “sex.” It may be confusing but the point is that the Supreme Court as now composed came to this celebrated decision by accident through tedious wordplay rather than out of any genuine concern for the LGBQT community. 

In the future, possible amendments to Title VII could conceivably change the law and another Supreme Court case could with one case severely curtail many of the constitutional rights that the LGBQT community has come to rely on. A number of justices have expressed skepticism over the “right to privacy” and 14th Amendment “fundamental rights” which were used to decide the landmark LGBQT cases Lawrence v. Texas and Obergefell v. Hodges. There is still a hostility in the Supreme Court towards LGBQT as a fundamental right under the Constitution that should give activists pause that the court will always be receptive to upholding LGBQT rights, the Bostock decision last week notwithstanding. With the right case, the Supreme Court could easily take the opposite position.

Finally, the decision did not specifically address and simply passed over the issue of how LGBQT rights and religious liberty will co – exist under the law. This has been a thorny issue as many religious persons and communities have been relying on their freedom of religion as a way to deny LGBQT persons from participating in American society. In the wake of the Bostock decision, a number of religious leaders expressed concern over the Supreme Court decision and voiced worries about now being exposed to lawsuits because of their hiring practices that are based on their religious beliefs. It is entirely conceivable that the Court could protect LGBQT rights today but side with religious advocates against LGBQT persons tomorrow. Advocates for LGBQT rights have won a victory but there are still many issues at play that could be dealt with by Congress and the Supreme Court in the near future that could still go in any number of directions – both good and bad. 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.

Big Tech Companies Announce Halt To Sales of Facial Recognition Technology

Big Tech Companies Announce Halt To Sales of Facial Recognition Technology

Policy Summary: On June 10, 2020 Amazon.com announced that they would implement a one-year moratorium on providing Rekognition to law enforcement agencies. Rekognition is Amazon’s face recognition software that allows a user to scan a crowd of persons and quickly match a photo of a person’s face to a database of people’s face photos. The next day, Microsoft announced that they would discontinue selling their own version of facial recognition technology to law enforcement departments until a federal law is passed to regulate the technology. Both of these announcements followed the announcement of IBM to completely abandon the technology as a product for sale. LEARN MORE, LEARN MORE, LEARN MORE

Policy Analysis: Facial recognition technology has always been controversial. This is because the technology has the ability to scan and potentially match large crowds of people who may not be engaging in illegal behavior which raises privacy issues. And in tests of the software, the software has been shown to be unreliable and prone to false matches when used against photos of persons of color. There have been calls to Congress to try and implement legislation that would regulate and limit the use of the software but nothing has been enacted. There have also been similar calls to Amazon to discontinue sales of the software to law enforcement agencies but Amazon ignored those calls.

Until now. In the aftermath of the protests due to the George Floyd and Breonna Taylor killings and the ongoing national discussion of police reform, Amazon, Microsoft and IBM have all issued statements regarding the future of their facial recognition software products. IBM is the only company of the three to announce that they will discontinue offering their software because of the potential for “mass surveillance and racial profiling.” Amazon and Microsoft’s decision represents a holding pattern – Amazon putting on hold sales to law enforcement for a year while Microsoft suspending sales while being more vocal in calling for federal legislation to regulate the technology.

On the surface these are steps in the right direction but any of these companies could have taken these steps the last couple of years. They refused. It was only because of the eruption of police reform protests that finally got the companies to change their tune. Amazon’s decision is only for one year which implies that they will simply go back to selling their product once the protests have simmered down. In addition, Amazon’s announcement states that their product is still being sold to groups that are not traditional law enforcement such as missing children’s groups. A moratorium on sales of Rekognition to law enforcement does not change the fact that other groups are still using the software. This action also does not mention how Amazon’s Ring service will be affected. Ring is a doorbell monitor that allows users and third – parties to view remotely video of a user’s front door. Even though controversial, Amazon and Ring have recently partnered with local law enforcement to give those police departments access to videos from the app which can be used to bypass search warrant requirements and again raises issues of privacy.

If these big tech companies want to implement more meaningful change in the controversial realm of smart policing, they need to look at all aspects of the field instead of simply halting sales for a limited time. Some of the best suggestions include making the software more available for independent third party testing, court approval before police can use it and a ban on use if a constitutional right such as free speech or a protest is in progress. What these tech companies have announced is a move in the right direction but there is more that can be done. 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.

The Qualified Immunity Doctrine Stands In The Way of Real Police Reform

The Qualified Immunity Doctrine Stands In The Way of Real Police Reform

Policy Summary: In 1967 the United States Supreme Court decided the case Pierson v. Ray which decreed for the first time that police officers had “qualified immunity.” That doctrine states that police officers are immune from civil liability unless they deprive under color of law another person of his or her civil rights. In 1982 the Supreme Court issued an updated interpretation of the “qualified immunity” doctrine in Harlow v. Fitzgerald by stating that now the legal standard is that “government officials…are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known.”

On June 4, 2020, Representatives Justin Amash (L-MI) and Ayanna Pressley (D-MA) introduced the Ending Qualified Immunity Act in the U.S. House of Representatives.  The bill seeks to simply do away with the legal doctrine put forth by the U.S. Supreme Court. On June 8, 2020 Senators Kamala Harris (D-CA) and Cory Booker (D-NJ) introduced bill S.3912 which seeks to also eliminate qualified immunity and permit law enforcement officers to be held civilly liable for misconduct while in the performance of their duties.

Additionally in 2020, the Supreme Court had thirteen different petitions before the court that deal with qualified immunity. Many of the petitions had either been rescheduled or distributed for conference on the same day in the future, which indicates that a significant decision on qualified immunity may have been forthcoming. However, the Supreme Court on June 15, 2020 declined to hear the cases although Justice Clarence Thomas issued a brief dissent signaling that he was open to re-examining the doctrine.  LEARN MORE, LEARN MORE

Policy Analysis: In the aftermath of the killings of George Floyd, Breonna Taylor and others and the protests that have erupted across the United States the last month the issue of police reform has been on the minds of countless Americans. Reviving federal oversight of local law enforcement with DOJ consent decrees have been discussed as well as defunding police departments. But only the issue of “qualified immunity” has gotten the attention of all three branches of the federal government.

The issue has become notable because calls for reform of the doctrine have come from people on both the right and the left of the political spectrum. While the Supreme Court surprisingly declined to hear cases during this term two justices have indicated their unease with the doctrine. Justice Clarence Thomas has become an advocate for reforming the doctrine because he sees it as having no roots in common law and is another example of judicial activism. And Justice Sonia Sotomayor sees the doctrine as an absolute shield for police officers to “shoot first and think later.”

The doctrine is controversial in the courts because when the legal standard is applied in civil cases, the bar is nearly impossible for plaintiffs to meet. From a legal standpoint, plaintiffs who have brought police brutality cases against individual officers must show that the officers conduct is against “clearly established statutory or Constitutional” rights. But since there a very few prior cases that match exactly the offensive conduct committed by the officers courts have been reluctant to side with the plaintiffs and their lawsuits almost always fail. The end result of this anomaly in the criminal justice system is that cops are never held accountable for their actions and case law holding police officers accountable which could be used in the future rarely gets decided.

Examples of police officers who have eluded accountability for their actions because of the legal doctrine are numerous. In Jessop v. City of Fresno, police officers stole $225,000 in cash and rare coins while executing a warrant but could not be sued because they were held to be civilly immune for their actions. In West v. Winfield, a woman gave law enforcement permission to search her home for a suspect only to see law enforcement destroy her home with tear gas grenades. She then found out the officers were immune to a civil suit for the destruction they caused. And in Corbitt v. Vickers, which has garnered national headlines and a petition from a number of high – profile professional athletes, police shot a ten – year old boy and his dog even though they posed no threat to the police officer. The police in that case claimed immunity in a civil case against them. These cases show that the qualified immunity doctrine has gone too far and that police officers are manipulating the doctrine to shield themselves from civil liability for illegal and egregious behavior.

The “qualified immunity” doctrine appears to be on the verge of significant reform if not outright elimination. With the doctrine at the forefront of discussion among lawmakers and members of the judiciary it is clear that changes are coming and it will be interesting to see what form those changes will look like. LEARN MORE, LEARN MORE, LEARN MORE

 

Resistance Resources:

American Civil Liberties Union (ACLU) – blog post on the background of “qualified immunity.”

National Police Accountability Project (NPAP) – project’s letter to Congress to eliminate the “qualified immunity” doctrine.

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 Engages in  Free Speech Fight with Twitter

President Trump Engages in Free Speech Fight with Twitter

Policy Summary: The Communications and Decency Act (CDA) was passed in 1996 and provides that an “interactive computer service” is immune from civil liability if they publish information from third – party users.

On May 28, 2020 President Donald J. Trump signed an executive order titled “Preventing Online Censorship.” The executive order was prompted by Twitter’s decision earlier in the week to place labels on tweets emanating from President Trump’s verified Twitter account. On a May 26, 2020 tweet from the President about perceived mail – in ballot fraud, Twitter for the first time added a link at the bottom of the tweet that said “Get the facts about mail – in ballots” which was preceded by an exclamation mark in an oval. That signaled that there were other facts to the issue that were not mentioned in the President’s tweet.

In Section 2, subsection (b) of the executive order, the President directs all executive departments and agencies to examine whether Section 230 of the Communications Decency Act is properly applied in a manner to ensure that a social media platform cannot enjoy immunity from civil liability while engaging in acts of censorship of a third – party user’s views. Additionally, President Trump ordered further rule – making to clarify the instances of when a social media platform is engaging in acts of censorship. LEARN MORE

Policy Analysis: Twitter’s announcement that they would append labels to tweets from President Donald J. Trump’s Twitter account is unique in that it is believed to be the first time that Twitter has sought a way to combat the numerous falsehoods that have become a feature of the President’s tweets. Brad Parscale, President Trump’s campaign manager, called the move by Twitter “biased” and a way to “obstruct and interfere with President Trump getting his message through to voters.”

But the executive order and the statement from Mr. Pascale have misconstrued the situation. There is no obstruction and interference or an issue with free speech because Twitter has in no way placed limits on what President Trump wants to write or tweet out. The President still has control over the message he chooses to type out and put up on his Twitter feed. Twitter has not altered his tweets in any way to change the message contained in his tweets. What they have merely done is added a hyperlink on the bottom of the tweet, separate from what the President has typed out, that encourages readers to “get the facts” and additional info. Readers can still read the President’s tweets in their original form intended by the President while also having the option of further researching the issue and coming to their own conclusion after comparing other available evidence. President Trump has a long history of spewing out outright falsehoods and debunked conspiracy theories and it appears that Twitter has become fed up with the political vitriol that have roots in President Trump’s tweets. But this executive order will do nothing to help create an environment where free speech can flourish and all viewpoints are welcome. By directing his executive order at Section 230 of the DCA and the issue of civil liability the President and his team are avoiding the issue of whether their tweets have merit and may simply be angry that their tweets can be contradicted with opposing and established facts. If the President’s tweets are not being altered or blocked from view in any meaningful way then there is no free speech violation.

Finally, the President’s executive order is another incident in a trend where President Trump falsely believes that he has the power to amend the law. The President of the United States has no power to change existing law. Only Congress has the power to do that. The President only has the power to execute laws that have already been passed and can only direct federal agencies to administer the law as it currently exists. His executive order cannot override the requirements of Section 230 of the DCA. Two Internet legal scholars – Eugene Volokh at UCLA and Eric Goldman at Santa Clara University – state that Congress has already rejected the model that websites are civilly liable for a third – party user’s speech that they publish. Since Congress has already decided this issue, President Trump cannot unilaterally change it or have it be modified in a significant way by federal agencies.

This situation is the direct result of President Trump’s Twitter behavior. Had the President been more thoughtful about his tweets than Twitter likely would not have had to take the action that they did this week. But the President’s actions in response to Twitter’s move illustrates that his views on free speech and presidential power are not rooted in the established concepts of the First Amendment and what the White House can do to affect meaningful change. 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 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.

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