Daily Archives: March 21, 2022

True representative democracy depends on making access to voting a realistic option for all.

The fundamental task for American democracy today is to create an inclusive political order.

An inclusive order includes everyone. It fundamentally entails creating a political and constitutional structure that takes seriously the right to vote and assures that right is not undermined for any group, whether on the basis of race, ideology, or geography. The future of voting rights law and policy should focus on developing a new political and legal consensus in which voting is regarded as a universal and fundamental right, made available to all.

Throughout U.S. history, race and political power have long been interrelated. Structural political inequality and structural racial inequality have been mutually reinforcing, so solving racial discrimination in voting will require a vigorous commitment to resolving political inequalityand vice versa. In other words, commitment to political equality must include a commitment to eradicating racial discrimination in voting. To eradicate discrimination in voting and achieve real political equality, election law must become centralized and nationalized. States should thus be precluded from regulatory practices that undermine inclusiveness and political equality.

In an inclusive political order, the current conception of state sovereignty in setting election rules has no role to play. That current conception holds that a state can effectively discriminate on the basis of race because the only way to stop the state is by proving it acted on the basis of a racial motivation.

In effect, election law today allows a state to engage in a kind of legal arbitrage in their election rules. If states can justify election rules on the basis of politics or political ideology, even though these two things can be interrelated with race, the Court will not say anything about what the state has done. This practice must change. State governments should not regulate the elections franchise in ways that keep it from being effective for anyone. The franchise should be effective for all, and state governments should not be allowed to change voting rules to make it harder for citizens to vote on the basis of race, party, or other ideological grounds or impose other barriers to political participation. Only then can the United States break free of the ways in which structural political inequality and structural racial inequality are intertwined

Perhaps no other U.S. Supreme Court case as vividly presents the important symbiotic relationship between structural political inequality and structural racial inequality as does Gomillion v. Lightfoot, decided in 1960. In that case, the Supreme Court struck down on Fifteenth Amendment grounds the Alabama legislatures decision radically redrawing the electoral district for the city of Tuskegee to exclude Black people from the voting pool. A quick look back at that case helps map out the possibilities for thinking about how to deal with racial discrimination today. This examination can reveal insights about what is needed in the wake of efforts by many recent state legislatures to regulate the voting process in ways that purport to be based on grounds other than race, but which serve only to reinforce structural racial inequality.

Gomillion posed an epistemic challenge for civil rights advocates. They had to prove that the redrawing of the boundaries of Tuskegee was a racial gerrymandera segregation of the racesand not a political gerrymander or simply a remapping of the municipal boundaries. A racial gerrymander would have been unconstitutional, but a political gerrymander, or a mere change in the municipal boundaries, was within the states sovereign power under the law of the time.

Although the state statute in Gomillion did not say anything about race, or really anything other than latitude and longitude of the electoral district for the city of Tuskegee, there was no doubt that the remapping of Tuskegee was a blatant racial gerrymander. Sam Engelhardt, the state senator who authored the statute in the Alabama legislature, was crystal clear about the statutes purpose. He said he wanted to exclude colored voters who might become the balance of power in Tuskegee city elections.

But according to the existing legal doctrine of the time, state legislators motivations, as long as they did not appear evident in the terms of the statute, were not a relevant consideration for ascertaining the constitutionality of the statute. So, unless the plaintiffs could convince a court and the Supreme Court to take motive into account, or that the redrawing of the lines was a racial gerrymander, the courts would defer to Alabama, as they did in both the district court and the U.S. Court of Appeals in Gomillion. These lower courts deferred to the states argument that, as long as the state was not expressly engaged in racial discrimination, its sovereign right to implement its own conception of political equality ought to be respected.

Although Gomillions lawyers did not have much admissible evidence showing racial motivations, they did have the redrawn map showing the new boundaries of Tuskegee. The map itself illustrated the egregiousness of the states racial discrimination. Look at the map, the civil rights lawyers urged when the case reached the U.S. Supreme Court. The lines of the map represented how Alabama removed almost every single registered Black voter from the City of Tuskegee but not a single white person, much less a white voter. The jagged lines of the map made clear that this was not a normal redrawing of the municipal boundaries. After being redrawn by the state legislature, Tuskegee had gone from basically a large square to a much smaller 28-sided town. The new map removed every single one but four or five Black registered voters from the confines of the city. The states exclusionary purpose and effect was revealed by the map.

Everyone knew what the state was doing: preventing Black people from being able to register and to vote. Tuskegee was a racial oligarchy. Before the line redrawing, the majority population in Tuskegee was Black, outnumbering white people five to one. But white people held all the political power. No Black people held an elected position at any level in the city or county.

Legally, the challenge for the plaintiffs lawyers in Gomillion was getting around the states reliance on the theory of state sovereignty. That theory shielded the states voting discrimination against its Black citizens under the cloak of neutrality. The state argued that the redrawing of Tuskegees borders was just that: It was a map that drew new boundaries of a subsidiary of the state. It did not separate the races upon its face. Alabama even argued that lawsuits about political boundaries were nonjusticiable because they raised questions that the federal courts did not have the power to decide. The states arguments in Gomillion contained the seeds of what has become the modern legal framework, in which the Court declared in 2019 that challenges to gerrymandering are now nonjusticiable.

Gomillion vividly reveals the symbiotic relationship between structural political inequality and structural racial inequality. Alabamas plan to remove Black residents from Tuskegee was possible and submissible only because the Constitution allowed the states to create unequal political units. The Court had not been interpreting the Constitution to require states to create political units that weighed votes equally. Instead, the Court had allowed states to create oligarchies.

Alabama was thus subject to two different constitutional regimes: one that required it to grant its citizens equal suffrage rights on the basis of race, but another that allowed it to do whatever it wanted with citizens in its political units. In the first, the state was regulated, and, in the second, it was unregulated

Correspondingly, Black citizens were also subjected to two different types of legal regimes. If they were categorized on the basis of their race, they were entitled to equal suffrage rights. But if they were categorized by geography, political unit, or political party, they could then be treated unequally.

These different regimes presented Alabama with an arbitrage opportunity. The constitutional system would prevent Alabama from denying suffrage rights to Black people, but would not prevent Alabama from favoring one set of political units over another. Alabama could still achieve its racially discriminatory aimoppressing the voting rights of its Black citizens by placing them in disfavored political units. The state simply needed to convince the federal courts that the Constitution gave it the right to elect between two different regulatory regimes. And so long as Alabama could shield its racism behind the veil of state sovereignty, despite what everyone knew was going on, Alabama could maintain both its racial and political oligarchy

But racial oligarchy and political oligarchy are intertwined, and it is hard to have one without the other. In Gomillion, the question was whether the federal courts were willing to go along. They almost diduntil the case reached the Supreme Court. The Court ultimately rejected the approach taken in the lower courts and decided that the unconstitutional racial purpose was evident from the map itself. It held that the Fifteenth Amendment barred the redrawing of Tuskegees boundaries in a way that removed virtually all its Black voters.

Nevertheless, Gomillion demonstrates the challenge that plaintiffs face today when bringing voting equality claims because of the legal systems default presumption of plenary and legitimate state power. The law in many respects still views state authority as presumptively legitimate. When the state regulates on the basis of its authority to structure its local electoral process, the courts tend to defer. In part, they do so because claims of racial discrimination can raise significant epistemic uncertainties; the questions can be very complicated. Is a voter ID requirement a racially discriminatory device? Or is it simply the state deciding for itself what to do with its local system?

Gomillion presented a multifaceted puzzle that has long bedeviled the courts. How should constitutional law respond to the intersection of structural racial and political inequality? Law and politics jurisprudence has generally offered four approaches when confronted with structural political and racial subordination.

The first approach is pure and unquestioned judicial deference to the states supposed sovereign right to determine its voting rules and arrange its electoral institutions in any manner consistent with the states values. This total deference approach rarely acknowledges either racial inequality or political inequality.

The second response is to acknowledge racial inequality but nevertheless defer to the state on plenary power grounds.

The third approach defers to the state on the theory that any racial inequality claim is, at bottom, a claim about political power and therefore indistinguishable from a claim of unequal political power.

Lastly, there is the approach of race exceptionalism, which is the argument that racial discrimination is an exception to the states plenary powers. A states officials can do whatever they want, and the courts will defer to themexcept when they are engaged in racial discrimination. This is the approach taken in Gomillion, where the Supreme Court decided that clear racial discrimination violates the Constitution even where the state has the right to structure its political framework in a manner it sees fit.

There is, though, still a fifth possible approach. But this approach has rarely found support in the courts. It concedes that structural racial inequality and political oligarchy are mutually symbiotic. Both types of inequality grow from each other, and the harm caused by one type is compounded by the other. Precisely because the harms caused by both types are compounded by their co-occurrence, they both require congressional or judicial oversight of state electoral policies. This approach is the one I recommend.

It is also an approach reflected in the Voting Rights Act (VRA), which was itself influenced by this idea that political equality and racial inequality are intertwined. For 50 years, the VRA provided the regulatory framework that placed the question of voting inequality at its center. Even though the Fifteenth Amendment was nominally the fundamental law of the land, the VRA gave promise and life to the Fifteenth and the Fourteenth Amendments and began to deliver on the implicit guarantees of self-rule under the Fourth Amendment. The VRA brought the South into the fold of representative democracy and signaled to the nation that a new era of both racial and political equality was at hand.

That regime ended in 2013 with the Supreme Courts decision in Shelby County v. Holder, in which the Court struck down Section 4(b) of the VRA, the provision that identified the jurisdictions required to obtain preclearance, and also sidelined Section 5 of the VRA, the provision that required preclearance. Section 5 of the VRA said that any state or locality subject to Section 4 had to preclear changes related to voting. The Courts decision in Shelby County, although not a surprise to voting rights experts, ended a regulatory framework in which racial discrimination was placed front and center in the regulatory firmament. From the Courts perspective, the VRA violated the conception of state sovereignty, the same basic idea that it had earlier rejected in Gomillion.

Shelby County thus effectively ended a regulatory regime that aimed for political inclusiveness, and its aftermath led to the current deregulatory world. The question, then, is where the United States ought to go from here?

The future of voting rights law should be grounded on full inclusivity and equality. Everyones right to vote must be taken seriouslyand conceptions of state sovereignty have no role to play in such a future. Neither the public nor the legal system should allow the government to regulate the franchise in ways that diminish its efficacy.

We need to mobilize today around the vision of inclusivity in much the same way that protest movements mobilized to bring about the VRA. Black activists saw the VRA as a means to remake the racial order by remaking the political order. That protest movement changed not only politics but also constitutional law. The task in the post-VRA world is to take the lessons learnednamely, that there is a strong relationship between racial hierarchy and political oligarchyand move forward toward a vision of a new world of equality.

What does this new world look like? It looks like two new statutes that have been proposed in Congress: the For the People Act and the Freedom to Vote Act. If you look at the Freedom to Vote Act, for example, it takes voting seriously as a fundamental right. It attempts to articulate best practices in organizing inclusive elections and then nationalizes those practices. It undermines the conception of state sovereignty in which the state has the right to create its political structure as it sees fit. It recognizes that the right to vote belongs to citizens, so it makes certain that everyone has access to practices such as early voting, mail voting, and no-excuse absentee balloting. It prevents partisan gerrymandering, provides remedies for vote certification, and modernizes voter registration. It recognizes the fundamental goal of making voting and political participation an important aspect of democracy.

To move forward in the 21st century, society must recognize that political equality and racial equality are mutually reinforcing and one cannot exist without the other. Admittedly, the U.S. public is extremely divided today and too many states are still engaged in discrimination on the basis of votingwhether on the basis of partisanship, race, or a combination of the two. And with current patterns of gerrymandering and redistricting in todays deregulatory environment, there are certainly reasons to be pessimistic.

But on the other hand, for the first time in a long time, a strong segment of the population wants to tackle not just voting equality questions, but also questions of electoral structures: the Electoral College, the composition of the Senate, different ways of organizing an alternative voting system. Today, all these issues are on the table. In addition, many jurisdictions have adopted same-day registration, early voting, and other best practices that make it easier for people to participate in elections. As a result, even though there are surely reasons for despair today, thinking about how far the United States has come in terms of political participation and anticipating where it might be five, ten, or fifteen years down the road, well, who knows? There is possibility for hope.

The question then becomes: How does the United States move beyond the present deregulatory posture of federal law and build a social movement for the purposes of making the legal change needed to ensure full democratic inclusiveness? I see that we need to build a new movement worthy of the civil rights movement that led in the mid-1960s to the Civil Rights Act and the Voting Rights Act. It is ultimately up to us to make that happen. It is up to us to move the ball forward to make political power and representative democracy true for everyone and for all of us.

This essay is based on remarks delivered at the Annual Distinguished Lecture on Regulation at the University of Pennsylvania Law School on November 2, 2021.

View original post here:
Creating an Inclusive Political Order - The Regulatory Review

Kim Davis, the previous Rowan County in Kentucky, violated the constitutional rights of two same-sex couples by denying them the license needed for marriage. The marriage of same-sex couples was made legal by a declaration in the Supreme Court of the U.S. in 2015.

It is still under discussion whether Kim Davis would have to pay a fine in the form of damages to those couples who were denied the right to marry. Though the judgment in the landmark case of Obergefell v. Hodges stated that same-sex couples can marry in 2015, still Kim Davis did not allow that in her Court. Thus, she was charged with contempt of court for this six-year ago mistake.

This Friday a ruling was given by David Bunning, the Judge of District Court of the U.S. that marriage is a fundamental right and will be included as per the Fourth Amendment in the Constitution of the U.S. Thus, Kim Davis violated the fundamental rights of David Moore and David Ermold and Will Smith and James Yates.

As per Bunning, Kim Davis cannot get past her violation with the defense of her own constitutional rights which allows her to perform her tasks as an official elected in the judiciary. The same-sex couples are demanding compensation, damages, and even money for legal fees that they spent in huge amounts in this lengthy court fight.

In the words of Ermold, the couple demanded compensation due to their horrible experience and humiliation for having different sexual orientations. The second couple also said that the damages would compensate them for all the negative publicity and threats they received for their argument with Kim Davis.

The Court has already decided that Davis has indeed violated the constitutional rights and the amount of damage is only left to be decided.

Here is the original post:
Judgement Passed Against Kim Davis For Violating Constitutional Rights - The Union Journal

By Lisa Macpherson and John BergmayerMarch 21, 2022

You know the old proverb about new wine in old bottles? Derived from a biblical parable, it refers to an existing concept or idea being offered as though it were a new one.

In our view, the EARN IT Act of 2022 is justold. Despite overwhelming objections to the original version based on how it would threaten free expression and jeopardize access to encrypted services, its sponsors have brought back the act with virtually every one of its flaws still intact. And it still will not accomplish its stated goal: to encourage digital platforms to report and remove more child sexual abuse material, or CSAM, by threatening their Section 230 protections for hosting it.

First, some background: The EARN IT Acts of both 2020 and 2022 establish a national commission to develop best practices for interactive computer services to moderate material that sexually exploits children, including CSAM. The original EARN IT Act conditioned Section 230 liability protections to platforms that follow these best practices. We warned how this bill could threaten user privacy and security when it was originally introduced back in 2020 (fact sheet here, and blog posts here, and here). The new EARN IT Act simply eliminates Section 230 protections for any interactive computer services provider facing a claim derived from child exploitation law.

Heres the truth about the bill as it was reintroduced last month:

The best practices of the national commission are still likely to result in discouraging platforms from using privacy-protecting technologies such as encryption. End-to-end encryption is one of the best technological tools to protect user privacy and safety. It ensures that no one except the sender of a communication and its recipient or recipients can read it. Combined with device security, end-to-end encryption protects users from bad actors and cybersecurity threats. It benefits journalists, activists, domestic violence survivors, military personnel, and children. However, one of the bills principal sponsors, Senator Lindsay Graham, has been an outspoken critic of tech companies use of encryption; another sponsor, Senator Richard Blumenthal, has argued that technology companies might use a blanket exemption for encryption as a get out of jail free card when it comes to platforms monitoring what users say to each other; members of the Judiciary Committee have held multiple hearings emphasizing the challenges encryption creates for law enforcement; and the national commission will be dominated by law enforcement leaders. It seems highly unlikely that its recommendations will still allow for end-to-end encryption. Its also possible the commission may institute a best practice that requires platforms to monitor content, and encryption will de facto mean the platform is in breach of that duty.

The new version of EARN IT still holds the same perils for online safety. It includes a specious new carve-out for encryption that was designed to address the overwhelming pushback from digital rights organizations, activists, and academics about the likely impact of the bill. But read closely: It notes that the use of encryption cant serve as an independent basis for liability. That means a platforms use of end-to-end encryption (or its inability to decrypt their users communications) can still be used as evidence against them in court, and if a plaintiff or a judge can find just one more little thing to support it, the carve out no longer applies. This will have the same effect as the 2020 version: targeting platforms that use end-to-end encryption to protect the content and communications of their users.

This risk still extends to both federal and state civil cases. Federal criminal law already requires platforms to report any CSAM they discover. It bears repeating: Section 230 has never protected platforms from federal criminal law related to CSAM. However, without Section 230, state criminal, and state and federal civil law, could impose new duties on platforms not just to report CSAM they discover, but also to more actively scan and monitor their users to uncover more. Platforms could be liable if they have designed their services with privacy in mind, so the bill encourages platforms to drop such user privacy and security features.

In sum, the true primary goal of the EARN IT Act of 2022 is still to encourage digital platforms to more actively monitor user communications, even if that means that they may no longer offer secure, encrypted communications for users. It happens to accomplish that goal by removing their Section 230 protections for CSAM. What the standard of liability would be for a provider without Section 230 for this material, and what role the best practices play (if any), is necessarily uncertain, as the bill simply removes a liability protection. The best practices themselves are not legally binding. The law does not specify what the new standard of liability would be, and it could vary state by state and over time as new laws are passed. Nevertheless, a clear goal of this legislation is to incentivize, with the threat of massive liability, platforms to change how they are designed and how user communications are monitored changes that would necessarily affect all users all the time.

We had, and have, other concerns about the EARN IT Act relative to the principles we have articulated to ensure proposals for Section 230 reform protect free expression online. You can see these on our Section 230 Principles scorecard for this bill (although the goal of EARN IT has more to do with law enforcement than content moderation).

Lastly, others have made cases for the unconstitutionality of the EARN IT Act on the basis of either the First or Fourth Amendment or both.

A Lesson in Unanticipated Consequences

As we write this, Congress has also just reintroduced a bill calling for an assessment of the unintended impacts of SESTA-FOSTA, the combined package of the Stop Enabling Sex Traffickers Act (SESTA) and the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) that passed Congress in early 2018. SESTA-FOSTA holds websites liable for user-generated content that facilitates sex trafficking, but overwhelming evidence indicates that it has had profoundly negative effects on the health and safety of sex workers and people engaged in consensual, transactional sex. It should serve as a proof point and a lesson that in the face of uncertainty about what legal standards will apply to their content moderation and business practices, platforms will necessarily over-moderate, silence protected speech, and shut down accounts and pages in order to minimize legal and financial exposure. In the meantime, the bad actors move to offshore sites and the dark web, making enforcement even more difficult.

We do not have to sacrifice the privacy and security of our online communications to stop the exploitation of children. There are ways that Congress can truly address the scourge of CSAM, like providing more enforcement resources and victim assistance or addressing the poverty and housing instability that make children more vulnerable. They can also adopt and pass the various bills designed to directly address real-life violence and abuse of women and children. Unfortunately, the new EARN IT Act still distracts from achieving that result and instead harms CSAM victims by giving the broader public the impression that EARN IT will actually do something to help them and future victims.

Any way you look at it, the new EARN IT Act is an old idea. Dont buy it.

Read more from the original source:
Is the new EARN IT Act new wine in an old bottle? Whatever it is, we're not buying it. - Public Knowledge

SAN ANTONIO A federal trial is scheduled to start today in a controversial 2015 case in which two Bexar County sheriffs deputies fatally shot a domestic violence suspect who raised his hands in apparent surrender.

The shooting came near the end of a 12-minute encounter with varying angles captured by witnesses videos.

Deputies Robert Sanchez and Greg Vasquez shot Gilbert Flores on Aug. 28, 2015, outside his parents home in north Bexar County, arguing that he still had a knife in his hand. They had been called to the home by his mother, who told dispatchers that Flores had assaulted his wife and their infant daughter, that there was blood everywhere, that he had a knife and was acting crazy. Flores, 41, is heard on the 911 tape saying he planned to commit suicide by cop.

U.S. District Judge Robert Pitman in 2017 dismissed Bexar County from the lawsuit filed by Flores family, but he determined Deputies Sanchez and Vasquez should stand a civil trial. The deputies appealed, but their arguments to toss the case failed.

Today a jury is scheduled to be picked for the trial before Senior U.S. District Judge Royce Lamberth.

A witness cellphone video of the shooting was first broadcast by a local TV station the day of the incident and went viral. A second one recorded by a neighbor from a closer angle emerged months later. The trial could include both recordings, testimony about the whole encounter, and what led to deputies being called to the home of Flores parents in the 24000 block of Walnut Pass, near Scenic Loop Road.

The familys lawyers, with the Thomas J. Henry law firm, and the deputies attorney, Charles Frigerio, filed trial briefs last week arguing what should, and should not, be put in front of jurors.

In the appelate file, justices noted that during the time his family called police, Flores can be heard on a 911 call saying: I got a knife and Im going to suicide by cop, so bring a SWAT team, or uh uh uh or whoever is going to be ready to pull the trigger because Im going to die today.

The familys lawyers argue the deputies unreasonably used deadly force in violation of Flores constitutional rights. They argue that one deputy turned to the other in a sign that they would not let the incident drag on and that they were going to follow a supervisors commands to do whatever you have to do.

The deputies agreed on ending this and opened fire, one after the other, just as Flores who earlier had tried to stab them, took away a police Taser, and came close to getting a deputys AR-15 rifle had seemed to stop his erratic behavior and raised his hands above his head in what appeared to be surrender, the family lawyers filings said.

In the deputies filings, Frigerio said the totality of the circumstances have to be taken into account, not just the final moments. Throughout the confrontation, Flores kept yelling and taunting the deputies to shoot him because he did not want to go back to prison, and at times used the knife to stab at deputies.

Frigerio argues that nonlethal attempts to de-escalate the situation were unsuccessful. He argues the deputies used lethal force after being instructed by supervisors to keep Flores from getting back into the house, where he could further assault family members, and to prevent him from taking a patrol car or grabbing the AR-15 after he opened the vehicle door once.

Court documents said the videos showed Flores in the driveway, about 30 feet away from the deputies with his arms in the air. Frigerio argues Flores still had the knife in one hand and posed a threat.

In October 2017, Judge Pitman dismissed the county from the case, but found there are factual disputes that need to be decided by a jury to determine whether the deputies are shielded by a long-standing legal principle called qualified immunity.

While agreeing with the deputies that their conduct should be judged based on the circumstances, Pitman saw a big problem with the final actions they took shooting Flores when he did not appear to be an imminent threat.

Based on the circumstances facing Vasquez and Sanchez right before they shot Flores and construing the facts in favor of plaintiffs, the court finds that a reasonable officer would have concluded that Flores, who was stationary for several seconds and put his hands in the air while remaining otherwise motionless, was no longer resisting and had signaled surrender, Pitman wrote. Therefore, the deputies use of deadly force was not reasonable.

The deputies appealed to the U.S. 5th Circuit Court of Appeals in New Orleans. That court agreed with Pitmans determination that a jury needs to hash out the dispute and dismissed the appeal.

Flores had a knife, not a gun; was several feet away from the officers, the house, and the vehicle; had his hands in the air in a surrender position; and stood stationary in the officers line of sight, the 5th Circuit wrote. Under these facts taken in the light most favorable to Plaintiffs, we conclude that the district court correctly identified material factual disputes as to whether the officers violated Floress Fourth Amendment rights.

The deputies filed a petition for the U.S. Supreme Court to review the case, and several police and municipal organizations filed a brief supporting their request.

Records show the Supreme Court, without comment, denied the petition in March 2021.

In December 2015, a Bexar County grand jury declined to indict the deputies on criminal charges. Bexar County officials have said that the countys insurer may have to pay if the deputies lose and the jury assesses damages.

guillermo.contreras@express-news.net | Twitter: @gmaninfedland

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Im going to die today: Trial begins in controversial 2015 killing by Bexar deputies; man was holding his hands up - San Antonio Express-News