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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.

read more

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

read more

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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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.

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

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

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

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

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

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

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

Engagement Resources:

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

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

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

Photo by Element5 Digital

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

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

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

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

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

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

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

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

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

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

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

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

Engagement Resources:

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

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

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

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

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

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

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

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

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

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

Engagement Resources:

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

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

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