Showing posts with label election. Show all posts
Showing posts with label election. Show all posts

Wednesday, November 11, 2020

FOIA scores among John Oliver's three favorite things

Of all the funny takes on an outraged voter's crashing of a Nevada election press conference, John Oliver's takes top honors for featuring government transparency through the Freedom of Information Act.

 

See the full segment on Election Results 2020 on HBO's Last Week Tonight with John Oliver, Nov. 8, 2020.

Monday, November 9, 2020

All politics is local

This Ayrshire Daily News, Scotland, headline refers to the Trump Turnberry Golf Courses.  The headline caught the attention of BBC's Andrew Marr Show and was shared with me by BBC viewer and friend of the blog, Siobhan Lavery.

Trump Golf operates two properties in Scotland and one in Ireland.  The club at Aberdeen lost a fight against a nearby windfarm in the UK Supreme Court in 2015.  The New York Times Trump tax revelation caused Business Insider to mark the clubs among Trump's "most failed businesses," while seeming over-valuation of the clubs figures in New York prosecutors' ongoing investigations of Trump financial disclosures (Politico).  The Scotland properties also garnered unwanted news coverage this year for their receipt of coronavirus government bailouts (Guardian).  Nevertheless, Aberdeen recently authorized construction of a second club (BoingBoing).

Sunday, November 1, 2020

Peace, power at stake in elections around the world

Pres. Ouattara
(s t CC BY 2.0)
With the U.S. election looming, it's easy to miss crucial elections going on elsewhere in the world, such as Ivory Coast and Moldova, with potential ramifications for global peace.

Votes are being counted now in the Ivory Coast presidential election.  Incumbent Alassane Ouattara is hoping for a third term despite vigorous opposition.  A 78-year-old economist, Ouattara has been president since 2011, after the disputed 2010 election resulted in civil war.  The Ivory Coast constitution limits a president to two terms, but the Ouattara side claims that a constitutional revision in 2016 reset the term clock.

The Sahel
(Munion CC BY-SA 3.0)


An especially sensitive issue in the West African context, the dispute over term limits gives Ouattara's run an uncomfortable overtone of authoritarianism.  Ivory Coast is a key commercial player in West Africa, so stability or instability there ripples throughout the region.  One way or the other, the influence of Ivory Coast's outcome could be especially impactful as Mali, Burkina Faso, Niger, and western Nigeria all struggle to get a grip on lawlessness and violence in the western Sahel.

Frmr. P.M. Sandu
(Accent TV 2015 CC BY 3.0)
Meanwhile, voters are at the polls today in Moldova to choose between starkly different visions for the country's future.  Former socialist party leader Igor Dodon, president since 2016, faces former prime minister Maia Sandu in the country's fourth election since 1991 independence.  Dodon carries the endorsement of Russian President Vladimir Putin and resolves to look eastward for Moldova's future.  Sandu thinks the best hope to pull Moldova out of chronic economic stagnation lies westward, in the European model of development.  

Pres. Dodon
(Russian Pres. Press & Info. Ofc. CC BY 3.0)
I wrote last year about my visit to the "breakaway state" of Transnistria, which embodies the depth of divide over Moldova's future.  Yet so much more is at stake; Moldova stands as a bellwether for the region, indicative of future European or Russian influence.  And with Brexit occurring on Europe's opposite border, the continental union's prospects for eastern growth might speak to the future of the union itself.

Both elections, in Ivory Coast and Moldova, are plagued with reports and denials of poll tampering and improper influence over voters.  And people in both countries fear for the peace in the wake of an outcome favoring any side.

Protestors in Algiers, March 2019
(Khirani Said CC BY-SA 4.0)
Even these elections are not the only ones in the world right now.  The "Georgian Dream" party looks to have won third-term control of Georgia's parliament, lengthening a long-term one-party rule there that opponents say has failed to deliver economic prosperity for working people.  And today, voters in Algeria, where I also visited in 2019, opine on anti-corruption constitutional reforms hoped to quell protests that persisted after the 2019 election of presidential challenger Abdelmadjid Tebboune failed to deliver the prompt changes that the street wanted.

The American election is only one among many in the world this fall in which prosperity and peace might hang in the balance.  I'm hoping that whatever happens here on November 3, we model order and rationality.

Sunday, October 25, 2020

'Right to repair' of Mass. Question 1 would close loophole, aid consumers; industry opposition misleads

Teen mechanic in Philippines, 2014
(Rojessa Tiamson-Saceda, USAID, via Pixnio CC0)
Massachusetts has a right-to-repair initiative (Question 1) on the ballot this Election Day.

Voter information explains: "Under the proposed law, manufacturers would not be allowed to require authorization before owners or repair facilities could access mechanical data stored in a motor vehicle’s on-board diagnostic system, except through an authorization process standardized across all makes and models and administered by an entity unaffiliated with the manufacturer."

Passing this initiative should be a no-brainer.  The provision is in fact only an update to an existing law that voters approved in 2012.  Extending the right to repair to "telematic" data, the new law would close a right-to-repair loophole, through which carmakers can shield vehicle data against access by transmitting data out from the vehicle to a proprietary server.  The only source of controversy here should be how we let corporations continuously try to exploit law and technology to evade accountability to consumers and line their pockets with monopolistic product strategies.

The initiative is opposed by the "Coalition for Safe and Secure Data."  The organization's tack is that if you vote yes on Question 1, you'll facilitate domestic violence, because vehicle information can be misused by violent ne'er-do-wells.  The threat is a repulsive red herring, especially considering that telematic data about consumers already are being relocated without subject sign-off.  The Coalition for Safe and Secure Data is not the sheep of consumer privacy advocacy it pretends to be, but a wolf of a trade group, funded to the tune of $25m by the motor vehicle industry to shut down Question 1, according to Commonwealth Magazine.

Tuesday, April 21, 2020

Amid pandemic, ballot access restrictions yield to right to run for office, state supreme court rules

Because of the coronavirus pandemic, political candidates will have to produce only half the usual number of voter signatures to see their names on the state primary ballot, the Massachusetts Supreme Judicial Court ruled Friday.  One justice in concurrence chastised the Massachusetts government for dropping the ball in technology to respond to the crisis.

Massachusetts primary ballots in 2016 (GPA Photo Archive CC BY-SA 2.0)
A primary election in the United States occurs at the state level before the nationwide Election Day in early November.  Voters in a primary election choose which candidates from each party will qualify for the final ballot on Election Day.  The Commonwealth of Massachusetts held its primary election for the U.S. Presidency on March 3; the primary election for state candidates to state and federal offices is set for September 1.  Candidates will vie for a U.S. Senate seat, nine U.S. House seats, 40 state senate seats, and 160 state house seats.  Some states with earlier scheduled elections postponed their primaries.  For example, Rhode Island postponed its same-day presidential and state primary election from April 28 to June 2.  The later timetable in Massachusetts leaves no room for postponement if officials are to prepare ballots timely for Election Day.

Declared on March 10, a state of emergency arose in Massachusetts at a crucial time for political candidates to collect signatures to qualify for ballots in the state primary election.  Party candidates were expected to submit signatures to state officials by April 28, for state offices, and by May 5, for federal offices.  The requisite number of signatures ranges from 150, for a state house seat, to 10,000, for a U.S. Senate seat.  Procured signatures in Massachusetts must be “wet,” that is, given live, in ink; there is not yet a legal process to collect, nor a technical capacity to certify, electronic signatures.

Customers line up at social distance to enter my local grocery store.
Photo in Barrington, R.I., Apr. 5, 2020, by RJ Peltz-Steele CC BY-SA 4.0.
Naturally the coronavirus lockdown has complicated the collection of wet signatures.  Candidates and their supporters ordinarily canvass voters door to door and at places where people congregate, such as shopping malls.  Social distancing restrictions came into effect just after the halfway point in the time window for collecting signatures.  Candidates sought relief from the executive and legislative branches of Massachusetts government.  Executive election officials said they were powerless to change statutory deadlines, and bills to relax signature requirements stalled in the legislature.  I note, it’s hardly in the interest of incumbents and their well-oiled politicking machines to facilitate the raising up of rivals.

Written or not, the right to seek representative office must be, to some degree, a civil, or human, right in a democracy.  In Massachusetts, the right is written.  Article 9 of the Massachusetts Declaration of Rights states, “All elections ought to be free; and all the inhabitants of this commonwealth, having such qualifications as they shall establish by their frame of government, have an equal right to elect officers, and to be elected, for public employments.”

Article 9 of the 1780 Massachusetts Constitution
(Massachusetts Historical Society Collection)
The provision dates, unaltered, to the original 1780 Massachusetts Constitution (Papers of John Adams, vol. 8) and gave candidates now seeking access to the Massachusetts primary a plain hook to plead for judicial intervention.  On April 8, three representative plaintiffs, including two Democrats and one Republican, two seeking federal office and one seeking state office, filed an emergency petition for declaratory relief.

The Massachusetts Supreme Judicial Court has long recognized that the state constitutional right to run for office may confer judicial protection against overreaching legislative or executive restrictions on access to the ballot.  The provision was used to support women’s suffrage in 1922, if only after the 19th Amendment (1920).  The Court rejected a ballot access challenge to statute by Libertarian candidates in 2012; however, in dictum the Court reiterated its competence to adjudicate an article 9 claim and even cited article 9 in tandem with the inherent judicial power, as articulated in the landmark same-sex marriage decision in 2003, to extend Massachusetts civil rights beyond the scope of the U.S. Constitution.  Notwithstanding the power of judicial review, the Court’s experience in examining ballot access law under article 9 has before now resulted entirely in the approval of “reasonable” or “legitimate” qualifications for office.

Structurally, the Massachusetts Constitution, like the U.S. Constitution, disfavors judicial intervention in the electoral process.  “As a general matter, the principle of separation of powers … prevents the ‘judiciary [from] substituting its notions of correct policy for that of a popularly elected Legislature,’” the Court wrote in the instant case, quoting precedent.  The plaintiffs’ challenge here called for “policy judgments that, in ordinary times would be best left to the Legislature.”

"Signing a Petition" by Elizabeth Jenkins CC BY-NC-SA 2.0
Yet, the Court wrote, “[n]o fair-minded person can dispute that the fundamental right to run for elective office has been unconstitutionally burdened or interfered with by the need to obtain the required ‘wet’ signatures in the midst of this pandemic.”  Had the legislature passed a law similarly burdening ballot access in the absence of the pandemic, the Court reasoned, surely it would be ripe for judicial review under article 9.  Thus, “where fundamental constitutional rights are violated, and where the Legislature fails to remedy the constitutional deficiencies after having had the opportunity to do so, and where an aggrieved litigant files suit seeking remedial relief for the constitutional violation, the judiciary must provide such a remedy.”

The Court struggled with the appropriate level of judicial scrutiny, an issue that similarly has confounded the U.S. Supreme Court in its case law over free speech and campaign finance regulation.  U.S. constitutional law tends to approach civil rights problems from a formalist framework of tiered judicial scrutiny, its intensity ranging from zero, or minimal “rational basis” analysis, to presumptive unconstitutionality and stringent “strict scrutiny.”  This framework at first glance contrasts with the much more flexible European approach that functionalizes construction of “necessary in a democratic society,” though critics fairly allege that the U.S. Supreme Court’s tiered scrutiny has flexed functionally in application.

"Magnifying Glass" by Tall Chris CC BY 2.0
Like the U.S. Supreme Court, the Massachusetts Supreme Judicial Court has employed the language of both strict scrutiny and rational, or “legitimate” basis, in article 9 jurisprudence.  The Court explained: “When we evaluate the constitutionality of a restriction on access to the ballot, we apply a ‘sliding scale approach, … through which [we] weigh the character and magnitude of the burden the State’s rule imposes on the plaintiffs’ rights against the interests the State contends justify that burden, and consider the extent to which the State’s concerns make the burden necessary.’”  In other words, the degree of scrutiny is elevated as a function of the degree of burden.  Critics such as me contend that setting the appropriate degree of scrutiny only after purporting to observe the degree of burden invites the tail to wag the dog.  But that’s not important just now.  The Court found the burden here to be high enough, whatever language might be used to describe it, to demand strict scrutiny.

Though signature requirements might be modest and legitimate burdens on ballot access in the best of times, the Court opined that the signature requirements are excessively burdensome amid the present pandemic.  To reach that conclusion, the Court equated evolving social context with emergency electoral context:
[A]s we have recognized, statutory requirements that were once considered constitutionally permissible may later be found to interfere significantly with a fundamental right as societal conditions and technology change [indirectly citing the aforementioned same-sex marriage case]…. And similarly, statutory requirements that in ordinary times impose only modest burdens on prospective candidates for public office may significantly interfere with the fundamental right to run for political office in a time of pandemic.
Observers may opine whether, or when, that equation holds.  Though maybe not surprising when articulated by a progressive state court, the declaration simultaneously authorizes judicial aggrandizement in the expansion of human rights relative to time and in the constriction of human rights relative to exigency.  Potential implications abound, for example, in reconciling personal privacy with free speech, or climate change mitigation with free markets. For present purposes, the Court concluded that the signature requirements as applied could not withstand strict scrutiny.

By the time it reached remedy, the Court had painted itself into a corner.  The existing signature regime could not stand, yet the executive and the legislature refuse to solve the problem.  Plaintiffs invited the Court to simply void the signature requirement on this go-around.  But the state cried caution, fairly fearing that throwing open the doors of ballot access would result in incomprehensible ballot chaos for voters.  I would be inclined to find the state’s position paternalistic, but I remember hanging chads.

By Maklay62 at Pixabay
Admittedly loath to parse numbers, the Court invoked a Solomonic solution.  Observing that the emergency arose at about the halfway point of signature collection, the Court cut signature requirements by 50%.  The state had suggested that the requirement be cut only for offices requiring 1,000 or more signatures, presumably because of the chaos-will-reign concern, not the incumbency-will-be-threatened concern.  The bills stalled in the legislature would have taken that approach, too, reducing signatures from whatever number over 1,000 by half or two-thirds.  But the Court found itself without a sufficient basis to adopt the 1,000-signature cut-off, so applied the 50% rule across the board.

The Court issued two further declarations of equitable relief.  It extended the deadlines for candidates to submit signatures for state certification from April 28 to May 5, for state offices, and from May 5 to June 2, for federal offices, taking into account the pleadings of the state as to the minimal time needed to prepare ballots.  Second, the Court ordered state election officials to find a way to accept and certify electronic rather than wet signatures.  These additional measures the Court calculated in recognition of the difficulty, but not impossibility, of continuing to collect voter signatures during the lockdown.

Justice Kafker (Mass.gov)
Only one judge wrote a separate opinion.  In concurrence, Associate Justice Scott L. Kafker chastised the state for falling behind the curve in electoral technology:
In this “high tech” era, and in the midst of a global pandemic that severely restricts close personal contact, the failure to be able to solve manageable technological problems on the eve of an election is confounding and distressing. At a time when we need to be fundamentally rethinking what must be done in person and what can instead be done electronically, our electoral process seems dangerously unequipped to adapt to a new paradigm.
Justice Kafker pointed with approval to the electronic voter registration system adopted in Arizona.  The Court opinion in a footnote had pointed to Arizona similarly, as well as to technological adaptations in electoral process in New Jersey and Florida in response to the pandemic.

Justice Kafker concluded:
I feel compelled to emphasize that those responsible for our election process must have the necessary tools to quickly adapt to the current pandemic and the future crises to follow. Absent such technological adaptability, our elections will be imperiled and our election laws may themselves have to be rewritten in the midst of a crisis, as was done here. That is an invitation to conflict and confusion that must be avoided.
Voters line up in Boxborough, Mass., in the 2016 primary.
To read between those lines an entreaty to the legislature for funding would not, I think, be too speculative.  Lawyers and judges especially are aware of how badly Massachusetts has lagged behind other states in digitizing legal practice and public access to court records.

It would not be a stretch moreover to suppose that Justice Kafker was especially pained to meddle with the specific numeric qualifications for ballot access.  He was appointed to the Supreme Judicial Court in 2017 by Governor Charlie Baker, a Republican.  In the course of his career, Justice Kafker served as deputy legal counsel to Governor Bill Weld.  A past Libertarian candidate for Vice President and outsider Republican candidate for President, Weld was challenging President Donald Trump for the 2020 Republican nomination until Weld suspended his campaign on March 18. Republicans identify with formalism in constitutional interpretation, and Libertarians identify with judicial restraint in rule making, if also, practically, with relaxation of ballot access restrictions.

At the same time, Justice Kafker’s conclusion might readily be understood to voice widespread American anxiety over electoral integrity in general, especially in the crosscurrents of equivocal Washington reaction to Russian tampering.

The case is Goldstein v. Secretary of the Commonwealth, No. SJC-12931 (Mass. Apr. 17, 2020).  Chief Justice Ralph D. Gants authored the unanimous opinion.