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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

 

Two New Twists In The Saga of The 2020 Census; October 2020

Brief #139—Civil Rights
By Rod Maggay
On October 13, 2020 the United States Supreme Court issued an order that stayed an order from the 9th U.S. Circuit Court of Appeals that upheld the suspension of the September 30, 2020 deadline for finishing the 2020 census count. And, on October 16, 2020 the Supreme Court announced that it had set for argument on November 30, 2020 to consider whether the census can exclude undocumented immigrants from the overall tally of persons.

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Two New Twists In The Saga of The 2020 Census; October 2020

Two New Twists In The Saga of The 2020 Census; October 2020

Policy Summary: On October 13, 2020 the United States Supreme Court issued an order that stayed an order from the 9th U.S. Circuit Court of Appeals that upheld the suspension of the September 30, 2020 deadline for finishing the 2020 census count. And, on October 16, 2020 the Supreme Court announced that it had set for argument on November 30, 2020 to consider whether the census can exclude undocumented immigrants from the overall tally of persons.

Article 1, Section 2 of the U.S. Constitution requires that enumeration of all persons shall be done every ten years which will then determine how congressional Representatives will be apportioned among the several States. However, on July 21, 2020 President Donald J. Trump issued a presidential memorandum that directed the Secretary of Commerce to exclude illegal aliens from being counted for the apportionment base following the 2020 census. In response to this directive multiple lawsuits were filed by a number of plaintiffs asking the court, among other things, to not exclude illegal aliens from the overall census tally and the Commerce Department to not transmit any citizenship or immigration status data to the President for apportionment purposes. The multiple lawsuits were consolidated and at trial Judge Lucy Koh of the United States District Court for the Northern District of California sided with the plaintiffs. She issued an injunction that suspended both the September 30 deadline for finishing the census and the December 31 deadline for reporting the final census tally to the President. A number of groups had advocated for an extension of time to continue with the census count as the process had been upended due to the COVID-19 pandemic. The injunction issued by Judge Koh helped to give more time to conduct a more thorough count as the deadline to report the numbers to the President was pushed back to April 2021.

The government’s argument has been more of a technical argument. The finalization and reporting deadlines are set in federal law. So, the government was merely arguing against an extension because it did not want to agree to an extension and then be accused of not following the law. Only Congress can change the deadlines which wasn’t going to happen.The injunction was appealed to the 9th U.S. Circuit Court of Appeals which upheld the injunction and extension of the reporting deadlines. The case was then appealed to the U.S. Supreme Court which issued an order overturning the trial court injunction. This in effect will allow the Commerce Department to end census operations by the September 30th deadline and report the final census tally by the December 31st deadline. LEARN MORE, LEARN MORE, LEARN MORE

Policy Analysis: The latest orders issued by the Supreme Court are just the latest twist in the ongoing saga of the 2020 decenniel census. The importance of this census is staggeringly high as an accurate tally of the American population and where persons are living in the country will be used to determine how many Congressional Representatives a state will have for the next ten years, how many electoral votes it will have in upcoming presidential elections and how federal monies will be divided and doled out to states to use.

The Supreme Court case that issued the order that permitted the government to cease census operations in order to comply with deadlines to finalize and report and send  the final tally numbers to the president is an erroneous decision. This is because it does not consider that accuracy and thoroughness is much more important than simply complying with the deadlines to report the data. Census operations were disrupted with the COVID-19 pandemic causing delays and even a temporary suspension of field data collection activities. Due to these unforeseen circumstances the Supreme Court should have upheld the injunction issued by the trial court, allowed the collection of information to continue and emphasized that accuracy and thoroughness of census data is preferable over submitting inaccurate and incomplete data just to meet a deadline.

While the Supreme Court’s decision seemed like it would be the last word on the 2020 Census, the Court stepped into the census fray again a few days later by agreeing to hear arguments on whether President Trump can exclude undocumented immigrants from the final 2020 census tally. President Trump’s plan is to collect two tallies – one for everyone in the U.S. and another that would leave out the number of undocumented immigrants in the U.S. He would then report the tally that excludes undocumented immigrants to Congress for apportionment purposes. This plan is completely flawed as it is settled American law that “persons” are to be counted and not just “citizens.” This has been borne out from the historical record as prior debates in Congress considered counting only “citizens” but those proposals were rejected in favor of counting all “persons” regardless of their citizenship. Additionally, since the usage of “persons” is established in Constitutional Amendments, President Trump’s efforts to try to unilaterally decide on his own to only count citizens is a clear violation of the separation of powers principle. Laws are made by Congress and the President can only execute the laws within the boundaries of those laws. President Trump cannot do what Congress has not authorized under law and for President Trump to decide to not count undocumented immigrants for purposes of the 2020 census is in violation of what Congress clearly intended – that all “persons” and not just “citizens” be counted. As it now heads to the highest court for review the Supreme Court should provide clarity on this issue and rein in President Trump’s actions in what look to be an end – around Congressional powers for political purposes. LEARN MORE, LEARN MORE, LEARN MORE 

Engagement Resources:

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org

How To Identify And Respond If Illegal Armed Militia Groups Show Up At Polling Booths To Act As “Election Observers

How To Identify And Respond If Illegal Armed Militia Groups Show Up At Polling Booths To Act As “Election Observers

Policy Summary: During the weekend of September 19, 2020, Fairfax County, Virginia was conducting an in – person early voting event when a large group of President Trump supporters arrived on the scene. A number of reports have said that the pro – Trump group was there to try and intimidate voters and create a climate of fear to persuade other voters to not come to the polling booth location.

On September 29, 2020 during the first presidential debate between President Trump and Democratic nominee Joe Biden, President Trump told supporters “to go into the polls and watch carefully.”

And in a number of other incidents, President Trump has praised armed caravans that clashed with protesters in Portland, Oregon, defended 17 year old Kyle Rittenhouse for the murder of two people and praised a number of armed vigilante groups, most recently a group that appeared in Idaho.

The U.S. election for President, congressional members and a number of state officials will be held on November 3, 2020.

Policy Analysis: Due to the frequency of incidents where the President has praised armed vigilante groups and statements that the 2020 election is ripe for fraud and calls for his supporters to “observe” the election, Georgetown University School of Law has compiled a fact sheet on the legality of armed militias in all fifty states and what can be done if a voter is confronted with an “armed observer” at an election site on Election Day.

First, the fact sheets from Georgetown definitively state according to the law in each state that armed militias are illegal in all fifty states. There is no exception despite the fact that certain segments of society believe that groups can collectively arm themselves and offer law enforcement services.

Militias were originally conceived as organized groups called forth by a state or federal authority to defend the state or the country. However, groups that have formed without the authority of a state or federal authority are considered an “unorganized militia” and are expressly prohibited by every state in the Union by their state laws. With the number of armed groups that have come forth and been in the news lately it is safe to say that they did not form with the authority of a state or federal government and are therefore illegal.

But that hasn’t stopped President Trump from publicly admiring these illegal groups from afar and giving them encouragement. Just the presence of the groups alone makes them in violation of the law but it is the encouragement from President Trump and his attempt to link their “protective activities” to the integrity of the upcoming election that is cause for high concern. The appearance of these “armed groups” will not make the conduct of any election or a polling booth any safer. On the contrary, roving bands of armed groups will only serve to suppress votes and intimidate voters into not coming to a polling booth because of fears of violence. Rep. Maxine Waters (D-CA) even stated that these groups are specifically targeting minority communities of color and low – income communities in order to suppress the votes from those voting blocs. The political tactics of encouraging these armed groups to “safeguard society” mirrors the techniques that were so often used in the racist Jim Crow South to prevent blacks from voting.

With the information compiled by the Georgetown University Law School on illegal armed militias and possible voter intimidation tactics in the coming election, voters now have at their fingertips info into how to spot these groups and what steps can be taken if these groups appear at a polling site. Some situations listed in the fact sheet to watch for are non – law enforcement people acting like law enforcement, questioning voters and even turning some people away. Armed people who are not law enforcement officers cannot do this and are simply trying to instill fear into voters, as was the case with the group of Trump supporters in Fairfax County, Virginia last month. This does not have to happen and with the state – by – state information provided by Georgetown Law School the tactics used by these illegal groups and encouraged by President Trump can be prevented from having a role in the upcoming election. LEARN MORE, LEARN MORE

Engagement Resources:

  • Georgetown University School of Law – infopage on danger of private paramilitary group with link to state – by – state factsheet on how to identify and report on illegal armed groups on election day.
  • Election Law Blog – blog on voting rights and voter intimidation issues.

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

Debunking Republican Arguments To Speed Up Vote On Supreme Court Nominee In A Presidential Election Year

Debunking Republican Arguments To Speed Up Vote On Supreme Court Nominee In A Presidential Election Year

Policy Summary: On September 18, 2020 Supreme Court Justice Ruth Bader Ginsburg passed away at the age of eighty-seven. She had served on the Court as the second woman appointed to the Court since August 1993 after being appointed by then President William J. Clinton. The death of Justice Ginsburg has set off a political battle for control of the nomination and confirmation of the justice who will replace Ginsburg on the Court.

Article II, Section 2, Clause 2 of the U.S. Constitution states, “…and [the President] shall nominate, and by and with the Advice and Consent of the Senate…judges of the supreme Court…” With a 53 – 47 Republican majority advantage in the Senate and only a majority required to confirm a nominee, Republicans appear to have the votes to confirm a successor. However, the political battle to confirm a successor after Justice Antonin Scalia’s death in 2016 is influencing whether the chamber will even vote on a nominee. After Justice Scalia’s unexpected death, Senate Majority Leader Mitch McConnell (R-KY) refused to hold a hearing on President Obama’s nominee, Judge Merrick Garland, on partisan grounds. No vote was ever taken on President Obama’s nominee and the Supreme Court spent 2016 with only eight members on the court. After the election of Republican Donald Trump as President, he nominated Judge Neil Gorsuch in 2017 and the Senate voted to confirm him. LEARN MORE

Policy Analysis: With the 2020 U.S. Presidential election a little more than a month away, most Republicans in the Senate are eager to rush a vote on Justice Ginsburg’s replacement on the Supreme Court. However, the rationales to speed up the process and schedule a hearing and vote in the Senate has caused many voters to cry “hypocrites.”  Many of those cries are directed at Senate Majority Leader Mitch McConnell who famously blocked Judge Merrick Garland’s nomination from even having a hearing.

The main rationales being used by Republicans today to vote on an upcoming nominee before Election Day are [1] that since the 1880’s no Senate has confirmed an “opposite party” President’s nominee during an election year and so refusal to confirm an “opposite party” nominee in 2016 and vote on a “same party” nominee in 2020 is ok and [2] that a justice on the Supreme Court is needed in case the 2020 election is close and a decision from the Supreme Court is required. Neither of these rationalizations has any merit.

While many Republicans have adopted the talking point that since the 1880’s no Senate has confirmed an “opposite party” Presidential Supreme Court nominee during an election year vacancy, closer inspection of the historical record shows that this is false. During the 1988 election year, the Democratic controlled Senate confirmed Republican President Ronald Reagan’s nominee to the court, Justice Anthony Kennedy. Not only was he approved but he was approved unanimously 97 – 0. And in the 1956 election year, Republican President Dwight Eisenhower was successful in having Justice Brennan appointed to the Supreme Court as a recess appointment, which was later approved by the Democratic Senate in 1957. So, the argument by today’s Republicans about an “opposite party” Presidential nominee not getting confirmed by the Senate is just plain wrong and a distortion of historical fact.

Finally, the argument that the Supreme Court needs a justice to bring the membership of the court back up to nine in order to avoid tie votes is one that has been floated by Sen. Ted Cruz (R-TX). He has been emphatic that there is a possibility that a close result in the 2020 Presidential election might end up before the Supreme Court and so it is important that the Court be able to resolve cases definitively instead of having cases end in a 4 – 4 tie. However, that argument is undercut because of how Mitch McConell blocked the Garland nomination in 2016. With Justice Scalia’s death in February 2016 and McConell stubbornly refusing to even hold a hearing on the Garland nomination the Senate in 2016 allowed the Supreme Court to remain at eight members for nearly all of 2016. In total, the Supreme Court remained at eight members for fourteen months. It even included the October, November and December months of the 2016 election season. If Sen. Cruz and his Republican colleagues are worried about having Supreme Court cases end in 4 – 4 ties then why did they leave the Court with only eight members during all of 2016 and through the 2016 election season? This argument being put forth by Republicans now in 2020 has no merit and based on their obstructionist actions in 2016 is easily dismissible as Republicans playing a partisan game for control of the Supreme Court.

Sen. McConell and the Republicans in the Senate said in 2016 that they would not hold a vote on a Supreme Court nominee during an election year because they wanted the American people to have a voice in who a potential Supreme Court nominee should be by their vote for President. But based on their rush to hold a vote on a potential Supreme Court nominee about a month before the election the Republicans have shown that their words are meaningless and that their self – serving arguments are nothing more than falsehoods and contradictions in service of their partisan interests. Senate Republicans should follow their own words and not hold a vote on a Supreme Court nominee until the results of the November 2020 Presidential election are in. 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.

Judge Issues Ruling On Use of Ballot Drop Boxes In Ohio’s Eighty – Eight Counties

Judge Issues Ruling On Use of Ballot Drop Boxes In Ohio’s Eighty – Eight Counties

Policy Summary: On September 15, 2020 Judge Richard A. Frey of the Court of Common Pleas of Franklin County, Ohio issued an opinion in the case Ohio Democratic Party v. LaRose. That case was brought in response to the use of “ballot drop boxes” in each Ohio county.

Frank LaRose is the Ohio Secretary of State which puts him in charge of the conduct of elections in the State of Ohio. According to state law each Ohio county is required to provide one secure receptacle for the receipt of absentee ballots in each county. The ballot boxes are designed to only receive ballots and not other pieces of mail. The law also requires that the ballot boxes be monitored 24/7 and that ballots are to be retrieved jointly with at least one Republican and one Democratic board of elections member daily. With this framework of state law in place, Secretary of State LaRose issued Directive 2020-16 on August 12, 2020. The Directive was sent to every Ohio county board of elections and included a statement that read, “Boards of elections are prohibited from installing a drop box at any other location other than the board of elections.” The result of this directive was that each county in Ohio was limited to only having one ballot drop box per county. After the issuance of the directive the Ohio Democratic Party and a coalition of voting rights groups sued Secretary LaRose to challenge his directive that limited each county to only one ballot drop box. In his opinion Judge Frey struck down Directive 2020-16 and called the order limiting each county to one ballot drop box “arbitrary and unreasonable.” LEARN MORE

Policy Analysis: The situation in Ohio is yet another feature in the ongoing national discussion about the use of absentee ballots to vote in the November 2020 election. While the discussion on the use of absentee ballots had been focused on claims of fraud, the accepted legal excuse to vote absentee and the technical requirements for a valid absentee ballot (use of affidavits, residency requirements for college students) this case is one that is focusing on the use of ballot drop boxes.

One argument on having more ballot drop boxes installed is because Ohio’s eighty – eight counties are different and only having one ballot drop box per county does not take into consideration population differences and distances that might have to be traveled just to reach the one ballot drop box. A rural county could probably handle having only one ballot drop box but larger urban areas might need more than one to handle absentee ballots that might come close to numbering in the millions. This is a very real possibility in the midst of an ongoing pandemic where people have been sheltering at home. And having only one ballot drop box might require some voters to commute as long as two hours just to drop their ballot in the designated drop box. By not installing more ballot drop boxes, Secretary LaRose’s Directive has made it burdensome and onerous for some voters to vote with their absentee ballot.

Voting should not be so cumbersome or complex but unfortunately this situation came down to partisan politics. Ohio has been and will likely be a swing state this November and that partisan divide was exposed over the issue of ballot drop boxes. Secretary LaRose is a Republican and his actions have been seen as voter suppression tactics despite claiming otherwise in a number of public pronouncements. He has claimed to not have legal authority to add additional boxes. Yet when the Attorney General of Ohio did not take a side on the state law the Secretary decided to stay with one ballot box per county when he could have issued the order for more ballot drop boxes. When the Cuyahoga County Board of Elections tried to install six more ballot boxes on their own in their county Secretary LaRose decided to step in and ordered the county to cease installing more ballot boxes. These actions gave the impression of a partisan motivation to help Republicans and their candidates in the state rather than helping all voters cast their ballots regardless of their political preference. With the issuance of Judge Frey’s order in the case it seems likely that Ohio can now proceed and help voters have their absentee ballots counted come November 2020. Although the issue might not be over as a lawsuit in federal district court in Pennsylvania has been placed on hold and a case in federal district court in Ohio is also ongoing. LEARN MORE, LEARN MORE

Engagement Resources:

NPR’s 2020 Election: Secure Your Vote Series – latest article on usage of ballot drop boxes from National Public Radio’s special 2020 Voting Rights series.

Election Assistance Commission (EAC) – infopage on guidelines the Election Assistance Commission recommends on the use of ballot drop boxes.

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.

Eleventh Circuit Court of Appeals Sides With Florida Republican Lawmakers In Restoration of Vote To Felons Case

Eleventh Circuit Court of Appeals Sides With Florida Republican Lawmakers In Restoration of Vote To Felons Case

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

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

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

The battle then moved to the court system. The Florida Supreme Court ruled that the law was constitutional. However, another suit was brought in federal district court in Florida which ruled that the additional requirements of SB 7066 violated the U.S. Constitution and therefore 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.

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 barring full implementation of the law and 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 and she brings 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  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. LEARN MORE, LEARN MORE

Update # 2: The current poll tax situation and the restoration of the right to vote to Florida felons has had a long and convoluted procedural history through both the Florida and federal court systems but it looks like a definitive answer has been issued from the Eleventh Circuit Court of Appeals. The Eleventh Circuit issued on September 11, 2020 its opinion in Jones v. Governor of Florida and the appeals court sided with the Republican Governor and Republican lawmakers in the state in a 6 – 4 decision.

In the case the court interpreted the term “all terms of a sentence” to include not just serving the complete term of incarceration but all other requirements that were imposed as part of the sentence. This includes any outstanding fees, fines and other financial obligations that could still be outstanding even though the person may have completed a prison sentence. The majority opinion addressed the issue of Florida’s requirements and if it could be consistent with the U.S. Constitution’s Twenty – Fourth Amendment’s prohibition against poll taxes as a requirement to vote. Chief Judge William Pryor wrote that the financial obligations required in Florida’s laws does not violate the Twenty – Fourth Amendment because the fines and fees in this case are not a “tax.” The key distinction Chief Judge Pryor made was that the court costs and fees are penalties for actions undertaken by the defendant and so are properly classified as a penalty rather than a tax. While this is a significant legal point the majority opinion struggles to address a significant feature of this entire saga – that the ballot initiative to restore voting to rights to felons was overwhelmingly approved by Florida voters by a nearly two to one (2 – 1) margin. The only reason Amendment 4 was challenged in the Florida and federal courts was because Republican lawmakers in the state wanted to suppress the nearly 1,000,000 votes that were not likely to vote Republican. With a history of razor thin margins in elections, having nearly 1,000,000 new voters could have tipped the upcoming 2020 elections further to the left. Now, because of their political considerations and their decision to ignore the will of the Florida electorate Republicans with this disappointing Circuit Court of Appeals decision have succeeded in suppressing a significant number of votes for the 2020 election. 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.

History And The Law Are Against President Trump’s Proposal For Law Enforcement Officers At Polling Booths

History And The Law Are Against President Trump’s Proposal For Law Enforcement Officers At Polling Booths

Policy Summary: On August 20, 2020 President Donald J. Trump said in an interview that he would send law enforcement officials to polling stations around the country. The intent was to protect against voter fraud in the upcoming November 2020 election. In his interview with Sean Hannity of Fox News the President said, “We’re going to have sheriffs, and we’re going to have law enforcement, and we’re going to have, hopefully, U.S. attorneys, and we’re going to have everybody and attorney generals.”

The idea floated by President Trump has its roots at a February 2020 conference in Orange County, CA sponsored by the Council for National Policy, a right – wing religious group. Other groups in attendance at the meeting, such as the group True the Vote, have advocated for more voting restrictions and for aggressively challenging a voter’s credentials at the polls.

Despite the President’s announcement, no plan or details have been revealed thus far to implement the President’s proposal. LEARN MORE

Policy Analysis: The President’s announcement was met with widespread disapproval. Dale Ho of the American Civil Liberties Union’s (ACLU) Voting Rights Project dismissed President Trump’s suggestion by saying the President neither had the power to order a local sheriff to do something nor had the power to send federal forces into polling places. Wendy Weiser, Director of the Democracy Program at the Brennan Center for Justice cleverly pointed out that a number of states and local jurisdictions have laws against law enforcement officers being in polling places. A number of state Secretaries of State pushed back on Trump with Colorado Secretary of State Jena Griswold calling the proposal “voter intimidation” reminiscent of “tactics used against Black voters in the Jim Crow South.” The common themes that could be found in the pushback against the President are of a President trying to exert non – existent powers and an attempt to intimidate potential voters and suppress the vote.

While comparing President Trump’s proposal to old Jim Crow tactics is a useful analogy an incident from New Jersey in 1981 best illustrates why armed law enforcement officers at polling booths is easily one of the worst ideas. That year the Republican National Committee (RNC) decided to create the National Ballot Security Task Force. The RNC hired two hundred (200) off – duty police officers and private security officers to maintain a presence at polling booths while carrying visible firearms and walkie – talkies. They also wore armbands with the name “Task Force.” The members of the group were deployed to polling booths in predominately Black and Latino neighborhoods in New Jersey during a heated election for Governor that year. On Election Day, members of this group tried to intimidate voters by asking for voter registration cards from Blacks. They also chased many Latinos away from the polls. Eventually, the RNC was sued which resulted in a consent decree where the RNC agreed to not engage in poll watching without prior court approval. That consent decree was in effect for nearly four decades before it expired in 2018. What that incident in New Jersey showed was that poll monitors employed by the RNC were nothing more than a way to intimidate voters of color from voting. Now, with President Trump suggesting that armed law enforcement officers be stationed at polling booths, it is clear that the Republicans might again be on the verge of trying to intimidate voters, specifically voters of color, with agents visibly displaying weapons. While that consent decree was helpful in reigning in Republican voter suppression tactics it can no longer be relied on since it has expired. What is needed now is a concerted effort to employ all local, state and federal laws that prohibit law enforcement officers from polling booths. There also is a need for  a campaign to inform and warn the citizenry that President Trump’s proposal is not a proposal for election integrity but nothing more than a discredited old tactic used by racists from the Jim Crow era. The United States of America does not need an armed law enforcement presence to conduct a national election. LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources:

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

New Jersey Supreme Court Issues Opinion Seen As A Blow To Digital & Cellphone Privacy

New Jersey Supreme Court Issues Opinion Seen As A Blow To Digital & Cellphone Privacy

Policy Summary: On August 10, 2020 the New Jersey Supreme Court decided the case New Jersey v. Andrews. The case is notable because of the decision by the court that criminal defendants can be compelled to turn over cell phone passcodes to law enforcement authorities to enable them access to the contents of a person’s cell phone.

Robert Andrews was a former New Jersey Essex County sheriff’s officer who was accused of collaborating with a drug dealer who was being investigated for narcotics trafficking. In the course of the investigation into the drug dealer’s activities the dealer revealed to investigators that a sheriff’s officer – Robert Andrews – was providing him with information on the status of the investigation. Additionally, Officer Andrews was also providing information as to how the drug dealer could do things to avoid further criminal exposure – by checking if his car had a tracking device, by warning him that his phone calls were likely being monitored and which officers were following him. As a result of this information from the dealer, law enforcement authorities executed a warrant on the cell phones of Officer Andrews and the dealer and found a total of one hundred fourteen (114) cell phone calls and text messages between the two men during the period of the narcotics investigation into the dealer. In order to corroborate information that the dealer provided to law enforcement, prosecutors requested Officer Andrew’s cell phone passcode in order to view information contained in his cell phone. Officer Andrews refused on the grounds that he had a right against self – incrimination. The trial court denied Officer Andrew’s refusal and ordered him to reveal his cell phone passcode. The case was then appealed to the New Jersey Appellate Division which ruled against Officer Andrews again. Another appeal ensued and the case went up to the New Jersey Supreme Court.

The New Jersey high court ruled 4 – 3 that “Neither federal nor state protections against compelled disclosures shield Andrew’s passcodes.” LEARN MORE

Policy Analysis: The decision from the New Jersey Supreme Court is one of the first state high court decisions to issue a ruling on the issue of whether a person can be compelled to open up the contents of their cell phones to law enforcement authorities. The issue has its roots near the U.S. border where a 2018 Customs and Border Protection policy was instituted to search electronic devices of persons attempting to cross into the U.S. However this case was different because the law enforcement officers in New Jersey were basing their search of a cell phone on the fact that they could compel a person to reveal his passcode. Because this was a criminal case against the officer, the Fifth Amendment right against self – incrimination came into play. That Amendment allows a person to not say anything or make any communication that will incriminate himself. The majority opinion in this case reasons that the act of not providing the passcode is not permissible because there has been no showing thus far that anything incriminating is on the cell phone. Only with knowledge that there is something criminally incriminating on the phone can the officer invoke the Fifth Amendment right. This is a difficult position because Andrews can only prevail in invoking the right if he first opens his cellphone to law enforcement authorities which may reveal incriminating information against him before he can invoke his Fifth Amendment right.

The minority opinion written by Justice Jaynee LaVecchia charts a different course and one that presents the best argument against forced compulsion. In her opinion, she highlights that this case illustrates how a person is being forced to disclose the mental contents of their mind. This is a severe violation of a person’s privacy and is in direct opposition to the principles and rationales of the Fifth Amendment – a protection against being forced to incriminate oneself. In it’s simplest form, there is a right to remain silent yet this court has now shifted in the direction that a person can be compelled to say something that exists only in their minds with the consequences that they could be incarcerated. Justice LaVecchia continues by showing that there is no U.S. Supreme Court case or other case authorities that require this kind of forced compulsion by law enforcement authorities against a person. This places the New Jersey Supreme Court opinion a step away from the accepted investigative techniques used by law enforcement. Justice Lavecchia’s opinion is the opinion most consistent with Fifth Amendment case law and rationales and should be the one future courts look at when examining and deciding this unique privacy issue scenario. 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.

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.

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