Schooled by the Electoral College

If the Electoral College was meant as a firewall against populism, it has failed, twice in this century, and twice for the worse.

Notice the pattern? The electoral vote amplified the differences in the popular vote, except when the race was close, when it reversed the outcome. A tight outcome is the condition you might expect when there’s a populist, heated race, driven by emotion. The two times when the electoral vote recently went against the popular vote, we ended up with a President that appealed more to fear, mistrust, and disorder than to unity and deliberation.

I’m not claiming that the Electoral College always reverses close outcomes, simply that it’s a destabilizing factor that can clearly err on the side of disenfranchising the will of the voters.

I wrote before on some problems with the Electoral College. It’s an undemocratic institution that’s skews our politics. It has not only outlived its usefulness, but it’s causing actual harm to our society. It’s undermining faith in our process of governing, it’s confusing, and it’s time for it to go.

Placebo against populism

Was the Electoral College even meant to prevent populism in the first place? Yes. Hamilton wrote in the Federalist Papers #68, “The Mode of Electing the President”:

It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.

It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief. The choice of SEVERAL, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of ONE who was himself to be the final object of the public wishes. And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.

In other words, the Founders wanted to have a select group of “discerning” leaders (ostensibly chosen by their fellow citizens e.g. land-owners) pick the President, on behalf of each state, to prevent a populist demagogue from riling up the citizenry and getting elected on a wave of emotion. They were to gather and vote in each individual state, separate from those from other states, to prevent collusion, group-think, and civic influence.

Let’s set aside for now that this is elitist; the problem I’m focusing on is that it’s ineffective.

The Electoral College was designed at a time when only 6% of the population (the land-owners) could vote, when communication between states was slow and difficult, and when the feedback loop between officials and the public was even slower. That has all changed. America needs to change with it.

Couldn’t the Electoral College still prevent Trump from becoming President?

Theoretically, yes. There are 26 states where the Electors are unbound; that is, where the Elector can vote for whomever they wish, regardless of how their state voted. 16 of those states (Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Missouri, North Dakota, South Dakota, Tennessee, Texas, Utah, and Wisconsin) voted for Trump. Any of those Electors could decide to vote for someone else, either someone more traditionally Republican, or one of the third-party candidates, or even Hillary or Bernie. There are 157 electoral votes in those 16 states, more than enough to change the outcome of the election. But will any of them change their vote? Highly unlikely.

Ironically, they would be accused of ignoring the will of the people, even though Clinton won the popular vote.

How do we get rid of the Electoral College?

Wouldn’t we need Congress to make an amendment to the Constitution? Wouldn’t that take forever, if it’s even possible? No. We can do this on our own, without a Constitutional Amendment. We can work in our individual states to enact the National Popular Vote Interstate Compact (NPVIC). Once it’s law in enough states to add up to 270 electoral votes, then we’ve effectively worked around the Electoral College, and it could be the harmless, doddering old ceremony that it should be.

Maybe the popular vote might still be bad. But it’s hard to imagine the outcome being worse than 2016.

Electoral Engineering

Remember, everyone in NC, a vote for Hillary Clinton tomorrow is a vote for me! 😛

As I posted on Twitter originally on 28 September:

NC Democratic Party called me today. I’m 1 of 15 Electors in NC’s Electoral College, if @HillaryClinton wins! I still want #ElectoralReform

And I followed up with more details posted on Facebook.

How I became an Elector

My friend Sheri Tindle asked how it happened.

I attended the NC Democratic convention, though I didn’t have a vote because I hadn’t figured out how to apply to be a delegate. When they were collecting nominees for the Electors, I tried to volunteer, but had no standing to do so… so one of the delegates sitting near me jumped up and put my name in. I think I won a slot because my county (Orange) is a Democratic hotbed in NC.

I was originally chosen as an Alternate Elector, but apparently the Primary Elector declined, so I got a promotion!

Can I vote for anyone I want?

The Supreme Court ruled that there’s no federal requirement for an Elector to vote as they’ve pledged. In principle, I could vote for whomever I wish.

An Elector who doesn’t vote for their party’s designated candidate is known as a “Faithless Elector”. There have been 157 faithless electors since the founding of the Electoral College. (71 of them changed their vote the candidate died in the interim… Republican VP Sherman in 1912, and Democratic Presidential candidate Greeley in 1872). But no Elector defection has ever changed the result of a Presidential election.

I’m a fan of the National Popular Vote Interstate Compact (NPVIC), which is a pledge among participating states that their Electors would vote for the winner of the national popular vote, rather than the state popular vote. This would effectively bypass the Electoral College if enough states someday enact it (that is, a set of states that total 270 electoral votes). However, it failed in committee in NC’s lower house (though the NC Sentate passed it in 2007), so that wouldn’t apply to me.

Still, I could vote my conscience. In North Carolina, I actually write down the name of my vote on a piece of paper, and I could write Bernie Sanders, Vermin Supreme, Pigasus, or in a passing moment of terrible judgment, Donald Trump. In practice, however, there is a NC law (NC Gen Statute §163-212) that makes it illegal for me (or other Democratic Party Elector) to cast a vote for anyone but Hillary Clinton and Tim Kaine; my vote would be stricken from the record, and I’d be expelled from the Electoral College and fined $500, as well as face censure from the Democratic Party.

Overall, probably not worth it. :) But still… let’s see those leaflets!

Incidentally, being an Elector is technically an elected office, and it’s exclusive in NC; you can’t hold any other elected office while acting as an Elector, and I’d have to resign any other position. That’s probably one reason I got the job… many other people in the party weren’t eligible.

NC §163-209 states, “A vote for the candidates named on the ballot shall be a vote for the electors of the party or unaffiliated candidate by which those candidates were nominated and whose names have been filed with the Secretary of State.” You read that right… in North Carolina, a vote for Hillary Clinton is a vote for Doug Schepers (and 14 other Electors)!

Like almost all other states, NC is a winner-take-all election. If Hillary doesn’t win the popular vote in NC, then I don’t get to take a trip to Raleigh on December 19, and I don’t get the $44 a day and 17¢ per mile paid to Presidential electors (per NCGS §163-211.) Vote for Hillary… I need the money!

The Old Ceremony

I’m tickled pink that I might have the ceremonial role of electing the first woman President of the United States, but we still need to fix this broken system, and I’d like to help do that however I can. As I responded to my friend Eric Brown’s tongue-in-cheek question, “So what are you going to major in?”: “Electoral Engineering, of course.”

Why is the Electoral College a Bad Idea?

I joked on Twitter on 21 October, the first day of early voting in NC:

I just voted early in NC for Clinton/Kaine! I hope to vote for them again as an Electoral College member in December!

I don’t really get 2 votes. Because actually, there is no popular vote for President; there is a popular vote for Electors, per NC §163-209.

And while an Elector in NC cannot be a Faithless Elector, other states don’t have that restriction. In Georgia, a Republican Elector vowed not to vote for Donald Trump, the nominee of the Republican Party, which is most likely going to win Georgia. This would be fodder for the conspiracy-minded who think the elections are rigged. Luckily, that Faithless Elector resigned, but it could still happen this election with some other Elector.

As much as I want Trump to lose –and I want him to lose badly– I want him to lose fair-and-square.

The Electoral College also skews issues and campaigns to focus only on a few key states; the rest of the states are largely ignored, especially reliably Red or Blue states. You’d think that would actually mean that the candidates have to woo a set of centrist states, but it doesn’t work that way… they have to go to the extremes, especially the Republicans (as shown by the Tea Party and Trump), or to drift away from the Progressive view. That is, they have to maintain status quo or play to anxiety and fear.

Some claim that the Electoral College is the last firewall against a poorly-informed or emotionally-manipulated populace. To this, I draw attention to Exhibit A: Donald Trump. The Electoral College holds no succor there.

I have no deep insights about the negative effects of the Electoral College, other than the received wisdom of others who’ve looked at it. But it adds an unnecessary level of abstraction away from democracy, which raises real questions of the legitimacy of governance that we can scarce afford now. We need people to have faith that their voice matters, or they won’t bother to speak out at all.

Voting button with 538 / 2 + 1 = Winner

Phoning It In at the Voting Booth

Among the various controversies and confusions about voting in North Carolina, seemingly designed to impede voters from exercising their franchise, there’s some conventional wisdom about whether or not you can use your mobile phone at the polls.

Poll officials are instructed not to allow a voter to use their mobile phone in any way while in or around the voting area, citing NC General Statute 163 Article 14A. I’m not a lawyer, but my reading of this statute leads me to think this is misguided, wrong, and harmful. This interpretation of NC GS 163 should be challenged in court, since it exerts a chilling effect on voting.

I’ll run through my interpretation and how it applies to a few scenarios. I welcome comments, questions, and corrections.

Rationale for Prohibition

There are two primary reasons given for why mobile phones are not permitted at the polls, explained by Don Wright, general counsel for the State Board of Elections, in a 2012 WRAL article, “Smartphones not smart at the polls”:

Assistance Clause

Wright claims that it violates §163–165.1 to receive voting advice at the polls:

First, NC Statute 163-165.1 bans voters from receiving assistance at the ballot box except from a close family member or a few other exceptions that require prior arrangement with precinct officials.

NC Statute 163–165.1 says nothing about receiving assistance, and deals only with how ballots are handled:

§ 163-165.1. Scope and general rules.

  • (a) Scope. – This Article shall apply to all elections in this State.
  • (b) Requirements of Official Ballots in Voting. – In any election conducted under this Article:
    • (1) All voting shall be by official ballot.
    • (2) Only votes cast on an official ballot shall be counted.
    • (c) Compliance With This Article. – All ballots shall comply with the provisions of this Article.
    • (d) Other Uses Prohibited. – An official ballot shall not be used for any purpose not authorized by this Article.
    • (e) Voted ballots and paper and electronic records of individual voted ballots shall be treated as confidential, and no person other than elections officials performing their duties may have access to voted ballots or paper or electronic records of individual voted ballots except by court order or order of the appropriate board of elections as part of the resolution of an election protest or investigation of an alleged election irregularity or violation. Voted ballots and paper and electronic records of individual voted ballots shall not be disclosed to members of the public in such a way as to disclose how a particular voter voted, unless a court orders otherwise. Any person who has access to an official voted ballot or record and knowingly discloses in violation of this section how an individual has voted that ballot is guilty of a Class 1 misdemeanor. (2001-460, s. 3; 2002-159, s. 55(o); 2005-323, s. 1(f); 2007-391, s. 9(a).)

This is likely a simple misquote, and Wright probably meant §163–166.8. Wright continued in the article:

Wright says a voter on the phone could be talking or texting with someone working for a campaign. “There’s a presumption that operation of a cell phone in a voting booth is unlawful assistance.”

I’m not sure who is making this presumption, but the term “assistance” is used ambiguously here. “Assistance” could mean:

  1. Help in deciding who to vote for; or
  2. Help in the mechanical operations of voting, such as entering or leaving the polling booth, marking the ballot, or submitting the completed ballot.

The prohibitory interpretation conflates these, but the law itself distinguishes them:

§ 163-166.8. Assistance to voters.

  • (a) Any registered voter qualified to vote in the election shall be entitled to assistance with entering and exiting the voting booth and in preparing ballots in accordance with the following rules:
    • (1) Any voter is entitled to assistance from the voter’s spouse, brother, sister, parent, grandparent, child, grandchild, mother-in-law, father-in-law, daughter-in-law, son-in-law, stepparent, or stepchild, as chosen by the voter.
    • (2) A voter in any of the following four categories is entitled to assistance from a person of the voter’s choice, other than the voter’s employer or agent of that employer or an officer or agent of the voter’s union:
      • a. A voter who, on account of physical disability, is unable to enter the voting booth without assistance.
      • b. A voter who, on account of physical disability, is unable to mark a ballot without assistance.
      • c. A voter who, on account of illiteracy, is unable to mark a ballot without assistance.
      • d. A voter who, on account of blindness, is unable to enter the voting booth or mark a ballot without assistance.
  • (c) A person rendering assistance to a voter in an election shall be admitted to the voting booth with the voter being assisted. The State Board of Elections shall promulgate rules governing voter assistance, and those rules shall adhere to the following guidelines:
    • (1) The person rendering assistance shall not in any manner seek to persuade or induce any voter to cast any vote in any particular way.

So, a registered qualified voter may ask for assistance in the mechanical operations of voting (which is good), but the person helping them cannot force or even hint at how the voter should vote (which is also good). As an aside, the law doesn’t impose any expectation that the helper accurately represent the options or record the ballot according to the wishes of the voter, nor offer penalties if the helper doesn’t act in good faith, which seems a glaring omission.

This statute clearly prohibits the operational helper from offering advice, but it doesn’t stipulate that the voter can’t seek advice from anyone of their choosing at any time. I ask my wife for advice on local referenda, or to remind me of my own previous voting decisions. This seems to be allowed under any reasonable circumstance, and by my reading of §163–166.8, should apply even in the voting booth if my wife isn’t also providing me with operational assistance. §163–166.8 clearly applies to the conditions of operational assistance only.

If the NC General Assembly or State Board of Elections wants a different effect, they should pass a more specific law, not loosely interpret §163–166.8.

This means that I should be able to legally use my mobile device to seek advice from anyone I wish, even while in the voting booth. The law doesn’t prohibit me to text someone (but not call, because my conversation could be overheard and interpreted as campaigning), to search the Web, or to consult my own pre-written research which happens to be on my phone (as opposed to a piece of paper). Perhaps there’s some other statute I’m not aware of which prohibits that, but §163–166.8 does not, and shouldn’t be used that way.

Photography Clause

Wright also asserts that it’s illegal for you to photograph your own ballot:

Second, under NC Statute 163-166.3, it’s illegal to take photos of voters or completed ballots, “except with the permission of both the voter and the chief judge of the precinct.”

Banning people from photographing other people’s ballots is just common sense, Wright says. “It’s a violation of the secret ballot.”

If it’s your ballot, why can’t you take a photo of it?  Wright says it’s to partly protect the vote – and partly to protect you.

In another state several years ago, a criminal vote-buying scheme used such photos. Vote-sellers were given cell phones and told to take a picture of their completed ballots to prove they had earned their payment.

“We don’t have a lot of trouble with vote buying in NC,” Wright said. “But we don’t want to encourage it, either.”

He says the ban also protects voters from outside pressure. Several years ago in Italy, Wright says, members of the Mafia were told to bring back photos of their ballots to prove they voted for the candidates supported by their crime syndicate.

Wright says without the photo ban, an unscrupulous employer could exert the same type of pressure here in North Carolina.

This is a legitimate concern, and a plausible rationale. I might differ on whether this is the right solution to the real problem, but I don’t see this as a impediment to the voting process itself.

I’m unable to find a substantive report about vote-buyers passing out mobile phones for vote-sellers to take pictures in some unnamed state, and it makes me uncomfortable that interpretations of laws might rest on hearsay, though there are recently recorded cases of “vote buying” in Kentucky and elsewhere. The Washington Post published a 2012 article, “Selling votes is common type of election fraud” –with prices ranging from a tank of gas or half a pint of liquor all the way up to $800– but noted that “Voter fraud, by any method, is still rare.”

Absentee ballots are a far more reliable way to buy votes than ones cast at the polls. That’s partly because of it does seem to be illegal to photograph your own ballot in North Carolina, as Wright says:

§ 163-166.3. Limited access to the voting enclosure.

  • (b) Photographing Voters Prohibited. – No person shall photograph, videotape, or otherwise record the image of any voter within the voting enclosure, except with the permission of both the voter and the chief judge of the precinct. If the voter is a candidate, only the permission of the voter is required. This subsection shall also apply to one-stop sites under G.S. 163-227.2. This subsection does not apply to cameras used as a regular part of the security of the facility that is a voting place or one-stop site.
  • (c) Photographing Voted Ballot Prohibited. – No person shall photograph, videotape, or otherwise record the image of a voted official ballot for any purpose not otherwise permitted under law. (2001-460, s. 3; 2005-428, s. 1(b); 2007-391, s. 23; 2008-187, s. 33(a).)

If you can’t photograph your ballot, then a prospective vote-buyer can’t verify that you voted the way they wanted (of course, it’s no guarantee anyway: you could simply photograph your ballot with their chosen votes marked on it, then request a replacement ballot that you use to vote the way you actually want).

I’m not sure what “any purpose not otherwise permitted under law” means; what are the permitted purposes for photographing a ballot? I don’t know enough legal convention to track down the references at the end of the clause that might have shed light on that.

So, you can’t use a camera in the “voting enclosure”. Just what is the legal definition of a“voting enclosure”?

Where does this apply?

These voting statues are clear about the locational scoping for these provisions:

§ 163-165. Definitions.

  • (8) “Voting booth” means the private space in which a voter is to mark an official ballot.
  • (9) “Voting enclosure” means the room within the voting place that is used for voting.
  • (10) “Voting place” means the building or area of the building that contains the voting enclosure.

So, the voting enclosure referred to in §163–166.3 refers to the rooms set aside for voting, while the booth itself is where you mark your ballot.

FAQ

Can I take a photo of people intimidating others or otherwise suppressing voters?

Yes! You can take a photo of anyone outside the “voting enclosure”, and since it’s illegal to do campaigning inside or directly around the voting enclosure, or to be inside the voting enclosure except while voting, any photo you take of someone intimidating others in the area outside is legal.

§ 163-166.4. Limitation on activity in the voting place and in a buffer zone around it.

  • (a) Buffer Zone. – No person or group of persons shall hinder access, harass others, distribute campaign literature, place political advertising, solicit votes, or otherwise engage in election-related activity in the voting place or in a buffer zone which shall be prescribed by the county board of elections around the voting place. In determining the dimensions of that buffer zone for each voting place, the county board of elections shall, where practical, set the limit at 50 feet from the door of entrance to the voting place, measured when that door is closed, but in no event shall it set the limit at more than 50 feet or at less than 25 feet.

In fact, taking photos is exactly what you should be doing, to help document any problems for later law suits. There is a meme circulating that advises you to do just that:

Election Protection Hotline: 888-OUR-VOTE | 888-687-8683

I’ve been trained as a non-partisan Voter Protection poll watcher, and I plan to go to a smaller town in NC to help ensure fairness at the polls. I took extra training to help deal with possible organized voter intimidation, and one of the main takeaways was not to confront anyone or try to de-escalate the situation, but simply to document it and call the Election Protection Hotline: 888-OUR-VOTE | 888-687-8683.

So, take photographs of anything suspicious, but protect yourself and be safe.

Caveat: There may be voter suppression happening in the voting enclosure, though we hope it’s rare. The poll workers might not be dealing with it properly, or the intimidation or suppression may be coming from the poll workers themselves (e.g. turning away voters that don’t have photo IDs, not offering provisional ballots, etc.). It’s still illegal for you to photograph incidents of voter suppression inside the voting enclosure! Don’t do it. You can ask names, take notes, or record information in other ways, but you can’t take photographs. Immediately call the Election Protection Hotline (888-OUR-VOTE | 888-687-8683) and report the incident.

Can I take a photo of my completed ballot in North Carolina? Can I post a ballot-selfie on socials?

No. That’s still illegal in North Carolina and many other states. This has been changing in some states, though, so it might also change in North Carolina.

The Washington Post has an up-to-date list of the legal status of taking ballot-photos for all the states.

US map of the legal status of taking ballot photos in all 50 states

Can I use my phone to look up my voting choices?

Yes. There seems to be some gray area here, so you might want to be discreet –getting your vote cast is the most important thing– but this seems to be legal. There have been incidents in NC of poll judges saying this is illegal, or even posting signs saying it’s illegal. I’ve seen this happen myself even in the progressive stronghold of Chapel Hill. I think this is due to bad training of poll officials.

Even though this should be legal, you might be confronted by poll officials telling you to turn off your phone. If this happens, ask them to let you step outside the voting enclosure and write down your voting choices (or prepare a paper list in advance).

This ambiguity is insidious, because it largely targets younger voters, who are more likely to rely on smartphones for this as they do for other tasks, and who are less likely to vote. We should reduce barriers to younger voters, not put up walls against democracy.

Can I use my phone to text others for advice? Can I access voter guides on the Web?

I don’t know. My opinion is that you should be able to, but that’s not a legal opinion, and it’s not based on any reading of any specific statute.

My advice is to get a sample ballot outside while you’re waiting in line (there are likely to be partisans handing these out), and do any phone calls or texts or web browsing for advice before you enter the voting enclosure. This also decreases the wait time for others in line, ensuring everyone has an equal chance to vote.

Topic of Cancer

I’m now officially a cancer survivor! Achievement unlocked!

A couple weeks ago, on July 27th, during a routine colonoscopy, they found a mass in my ascending colon which turned out to have some cancer cells.

I immediately went to UNC Hospital, a world-class local teaching hospital, and they did a CT scan on me. There are no signs that the cancer has spread. I was asymptomatic, so they caught it very early. The only reason I did the colonoscopy is that there’s a history of colon cancer in my family.

Yesterday, I had surgery to remove my ascending colon (an operation they call a “right colectomy”). They used a robot (named da Vinci!) operated by their chief GI oncology surgeon, and made 5 small incisions: 4 on the left side of my belly to cut out that part of the right colon; and a slightly larger one below my belly to remove the tissue (ruining my bikini line).

Everything went fine (I made sure in advance that this was a good robot and not a killer robot that might pull a gun on me), and I’m recovering well. I walked three times today so far, and even drank some clear liquids. I’ll probably be back on my feet and at home sometime this weekend. Visitors are welcome!

There are very few long-term negative effects from this surgery, if any.

They still don’t know for certain what stage the cancer was at, or if it’s spread to my lymph nodes; they’ll be doing a biopsy on my removed colon and lymph nodes to determine if I have to do chemotherapy. As of right now, they are optimistic that it has not spread, and even if it has, the chemo for this kind of cancer is typically pretty mild. If it hasn’t spread (or “metastasized”), then I’m already cured by having the tumor removed. In either case, I’m going to recover quickly.

My Dad had colon cancer, and came through fine. My eldest sister also had colon cancer over a decade ago, and it had even metastasized, and her chemo went fine… and cancer treatments have greatly improved in the past few years.

So, nobody should worry. I didn’t mention it widely, because I didn’t want to cause needless grief to anyone until after the operation was done. Cancer is such a scary word, and I don’t think this is going to be as serious as it might otherwise sound.

I’ll be seeing a geneticist in the coming weeks to determine exactly what signature of cancer I have, so I know what I’m dealing with. And I want to give more information to my family, because this runs in our genes, and if I’d gotten a colonoscopy a few years ago, they could have removed the polyp in the early stages and I’d have never developed cancer. (And because I’m otherwise healthy, I probably wouldn’t have gotten the colonoscopy if I hadn’t had insurance, which I probably wouldn’t have had if Obamacare didn’t mandate it. Thanks, Obama!)

Yay, science!

Future Plans

So, the cliché here is for me to say that this has opened my eyes to the ephemerality and immediacy of life, and that I’m planning to make major decisions in my life that prioritize what I truly value, based on my experience with cancer.

But the fact is, I’ve already been doing that recently, and while the cancer underscores this, I’ve already been making big plans for the future. I’ll post soon about some exciting new projects I’m trying to get underway, things that are far outside my comfort zone for which I’ll need to transform myself (you know, in a not-cancerous sort of way). I’ve already reduced my hours at W3C to 50%, and I’m looking at changing my role and remaining time there; I love the mission of W3C, which I see as a valuable kind of public service, so no matter what, I’ll probably stay involved there in some capacity for the foreseeable future. But I feel myself pulled toward building software and social systems, not just specifications. Stay tuned for more soon!

I’m optimistic and excited, not just about leaving behind this roadbump of cancer, but of new possibilities and new missions to change the world for the better in my own small ways.

Update:

Today (Friday, 26 August), I got the results of my biopsy from my oncologist, and I’m pleased to announce that I have no more colon cancer! The results were that the cancer was “well-differentiated, no activity in lymph nodes”, meaning that there was no metastasis, and I’m cured. This whole “adventure” emerged, played out, and concluded in just a month: I heard there was a tumor, was diagnosed with cancer, consulted an oncologist, had surgery, recovered, and got my cancer-free results all in 30 days. It felt much longer!

In Praise of HB2

North Carolina House Bill 2 (aka, “HB2”, or the “Public Facilities Privacy & Security Act”, or simply “the Bathroom Bill”), which  among other things prohibits transgender people from using the bathroom designated to the sex of their identity, is going to force another step forward in civil liberties.

Four years ago, in the 2012 gubernatorial election season, the North Carolina General Assembly, controlled by Republicans, passed North Carolina Amendment 1 (aka, “SB514”, or “An Act to Amend the Constitution to Provide That Marriage Between One Man and One Woman is the Only Domestic Legal Union That Shall Be Valid or Recognized in This State”), which called for a public referendum on the issue of constitutionally banning same-sex marriage.

From its inception, this bill was doomed to have no long-term relevance; it was cast in the mold of the polemical 2008 California Proposition 8. Already, the battle lines were being drawn for the national legalization of same-sex marriage: the military’s restrictive “Don’t ask, don’t tell” policy had been repealed, and the Department of Defense was permitting military chaplains to perform same-sex marriage ceremonies; President Obama had announced his support for marriage equality; challenges to Prop 8 were wending their way to the Supreme Court; and public polling indicated that a slender-but-growing majority of Americans approved of same-sex marriage. Predictably, in July 2014, the 4th Circuit U.S. Court of Appeals overturned an equivalent bill in Virginia, declaring it unconstitutional, thus nullifying NC’s Amendment 1. Why did NC legislators waste so much time, money, and energy on a bill they had to know wouldn’t last?

Because this was about more than just the bill itself. It was a dog whistle, or maybe a bullhorn, to rally conservatives around the state to come to the polls. A well-funded campaign of anti-marriage-equality groups spread across rural NC, especially conservative Christian groups, from the famous evangelical pastor Reverend Billy Graham, to two NC Roman Catholic bishops, to the Christian-funded Vote for Marriage NC, to the pulpit activism of ministers around the state. The message wasn’t just “vote for Amendment 1”, it was “vote for conservatives”; Representative Mark Hilton (R-Catawba) said, “One of the issues [conservative groups] have come to me about is the marriage amendment. It’s important to the conservative groups that we get this passed this year because they need that to be able to get their ground game working to get the maximum effect to get out the vote.” It was a heavily divisive issue, one that played to the deepest emotions of conservatives, and the public debate energized the voters, and helped usher in a new conservative Republican governor, Pat McCrory, after 20 years of fairly progressive Democratic governors (and a longer history of less-progressive Democratic governors before that).

So, is it really a coincidence that 4 years later, in the 2016 gubernatorial election season, the North Carolina General Assembly, controlled by Republicans, passed a bill that limits the rights of a gender minority? Or that some of them are calling for a public referendum? Or that they diverted $500K from the state’s Emergency Response and Disaster Relief fund to defend the fore-doomed HB2 in court against the U.S. Department of Justice, maintaining the controversy and the press for the next several months until the November election? I don’t think it will have the saving grace for Pat McCrory that it did last time, however; it’s already cost the state millions of dollars in revenue, and it’s made us an international laughing-stock.

Like Amendment 1 before it, HB2 is destined to be overturned, a footnote in history. But in the meantime, it’s causing real harm to real people; phone calls to Trans Lifeline, the nonprofit transgender crisis hotline, doubled after the passage of HB2; and some bigots feel emboldened to mock or even harm transgender people in the name of this law. This must have been profoundly disappointing for the human rights activists in Charlotte who’ve spent years working to make NC more inclusive, and who scored a victory with the Charlotte City Council with the passage of Charlotte Ordinance 7056 (aka, “An Ordinance Amending Chapter 2 of the Charlotte City Code Entitled “Administration”, Chapter 12 Entitled “Human Relations”, and Chapter 22 Entitled “Vehicles for Hire””), only to have it struck down at the state level by HB2. So, why am I praising HB2, rather than Charlotte Ordinance 7056?

Because, as good as the intention was behind Charlotte Ordinance 7056, if left unopposed, it would have had minor and purely local effect, rather than the transformative societal effect of HB2.

California’s Prop 8, banning same-sex marriage, was the critical event that made same-sex marriage legal across the entire US, in three notable ways:

  1. The public debate forced people to form an opinion on the issue, and when pressed on it, most people decided that either they were in support of marriage equality or that it simply wasn’t their business to dictate what other adults did;
  2. It inspired contrary legislation in several other states, legalizing same-sex marriage there;
  3. It forced the issue to be resolved in the courts, rather than the timid Congress.

Federal laws are made in two ways in the USA; either they are enacted by Congress; or they are decided as interpretations of the Constitution by the Supreme Court (or its lower district courts). Though same-sex marriage was trending upward in favorability among Americans, it would likely have been decades before Congress would have acted on that; members of Congress are too afraid of strong action on contentious issues, lest it endanger their reelection; and no single party is likely to have a clear mandate to act unilaterally for the next several elections. (A cynical view might assert that controversial issues –like same-sex marriage, gun control, health care, and abortion– are kept unresolved so the parties have strong, emotional differentiators to garner voters, but I prefer to ascribe it to simple inability.) So, the courts brought in marriage equality at least a decade, and probably much longer, than would have been possible from Congress. And this has been a huge step forward in civil rights, positively affecting hundreds of thousands of lives, and giving millions of people their dignity.

And these laws do more than just determine how people are treated by the government. They set a normative expectation among the public. Same-sex marriage is enjoying more popular support now not only because the law reflects how people feel… people feel differently because of the law itself. At their best, laws are a reflection and reinforcement and declaration of shared social values.

So ask yourself, and be honest: Were you concerned about the rights of transgender people a year ago? Were you inspired to march in the streets, attend rallies, or even post on social media about it?

I wasn’t. Sure, if you’d asked me, I would have said truthfully that I thought transgender people should have the same rights as others. But I wouldn’t have felt that strongly about it.

And then HB2 happened. In my state. And I was forced to form an opinion.

And I took to the streets.

Because, who are we, as a state? Who am I, as a citizen? I’ll tell you, clearly, in the face of legal claims by representatives of my state government: “We are not this.”

We are not punching down. We are not petty. We are not oppressive. We are not exclusionary.

Still, if same-sex marriage was yet decades away, how long in the future were transgender rights? How many years and how many lives until we cared?

But now, around the country, around the world, people are defiantly defining themselves by what they are not, on an issue that had not even been on their radar: “We are not this.”

I may not know much about law, but I know what I don’t like.

“We are not this.”

I can’t predict if HB2, this bigoted bill, will help conservatives maintain control of the North Carolina state government for another term. But I do know its one inevitable effect: however hurtful it will be for transgender people in its short life, and though some of those affected may not live to see the long-term benefits, it will give transgender people their legal dignity ever after.

So, self-styled “social conservatives”, keep bringing us hateful, hurtful laws. Keep pushing against the tide of history. Keep forcing us to form an opinion. Please.

Justice in the End

Some of my international friends have asked what the recent death of Supreme Court Justice Antonin Scalia means for America, for our process, and for the election. I couldn’t fit it into a tweet, so I thought I’d share my understanding and opinions here. I don’t have any great insights or expertise, but I hope this is useful for those who haven’t delved into the peculiarities of US government and law.

The death of Justice Scalia leaves a seat open in the Supreme Court of the United States (SCOTUS), the third branch of government (the Judicial branch); the other two branches are Congress (the Legislative branch, comprised of the House and Senate), and the Presidency (the Executive branch).

The Supreme Court has 9 Justices, appointed for life. This means that whomever is appointed as a replacement for Scalia will likely affect the tone of American justice for decades after the President who appointed them has left. Scalia was appointed in 1986, by President Reagan, and has been a consistently conservative voice for 30 years, frequently writing scathing and sarcastic dissenting opinions (“minority reports”) for decisions he did not agree with, including the legalization of same-sex marriage, Obamacare, women’s rights to abortion, civil rights, and many other progressive issues. Though he was intelligent, witty, and well-versed in the law, he was not kind in his judgments.

When Scalia was alive, the Supreme Court was almost evenly split between conservatives and progressives, with Chief Justice John Roberts, Clarence Thomas, Samuel Alito, and Antonin Scalia on the strongly conservative side, and Ruth Bader Ginsburg, Elena Kagan, Stephen Breyer, and Sonia Sotomayor on the moderate to strongly progressive side; the deciding vote has usually been the generally fair-minded, moderately conservative Anthony Kennedy. The death of Justice Scalia changes that balance. It’s expected that President Obama would nominate a progressive as Scalia’s replacement, and though he hasn’t yet named a candidate, conservative politicians have already attempted to block Obama’s appointment (in the true spirit of ♫whatever it is, I’m against it♫ ), leaving it to the next President to decide.

The Justices of the Supreme Court

It’s the duty and right of the sitting President to name replacement nominees to the Supreme Court (and Obama does intend to do so), and the duty and right of the Senate (not all of Congress) to approve these nominations. This has been highly politicized in the past few years, with more and more attempts by both conservatives and (to a lesser extent) progressives to block Supreme Court appointments, drawing out the debate, so there’s some wisdom in nominating a moderate Justice, in hopes of a speedy and non-contentious approval by the Senate. Notably, the nominee doesn’t have to be a current judge, or even a lawyer, but in reality, the Senate would be unlikely to approve anyone who isn’t a law professional (with good reason).

The nominee must get a simple majority in the Senate; currently, with 2 Senators from each of the 50 States, that means 51 approval votes.

The Republicans control the Senate, with 54 senators; the Democrats have only 44 senators; Independents make up the balance, with 2 senators (Bernie Sanders of Vermont and Angus King of Maine), who typically vote with the Democrats. While there are a few conservative Democratic senators, it’s likely that all Democratic and Independent senators will vote to appoint Obama’s nominee, whomever that might be. That’s only 46 votes, meaning at least 4 Republican senators will need to cross party lines to vote for the appointee… in an election year. That could be a tough sell for Obama.

But Obama has 342 days left in office, and the longest Supreme Court confirmation process, from nomination to resolution, was 125 days, back in 1916, when nominee Louis Brandeis “frightened the Establishment” by being “a militant crusader for social justice”. (Thanks, Rachel Schnepper!) In today’s sharply divided and fractured political system, I expect that we will set a new record for how long it takes to confirm a Supreme Court Justice, if it happens in the Obama administration at all.

If you did the math, you’ll have noticed that 46 + 4 = 50, not 51; luckily, if there’s a split vote in the Senate, the Vice President casts the deciding vote, and Joe Biden is closely aligned with President Obama.

If Obama can’t get the votes he needs for his nominee (a real possibility), he could wait until Congress adjourns for the year, and make a recess appointment, meaning a judicial selection while Congress is not in session; but this appointment would be temporary, less than 2 years, and the next President would certainly be the one to make the permanent appointment.

I’m reasonably confident (though not certain) that the next Supreme Court Justice will be a progressive, and will be appointed by President Obama, not the next President. But that wouldn’t mean that the implications of this for the 2016 Presidential election are any less notable! Other Justices (including the beloved Notorious RBG and “Swing Vote” Kennedy) may step down or even die during the term of the next President, meaning that the balance might shift yet again. We can’t ignore the fact that Bernie Sanders, a sitting Independent senator, will have a vote in the current Supreme Court nomination, while Hillary won’t, which will likely raise Bernie’s profile (for good or ill). And while the nomination process is underway, all the candidates will talk about who they’d appoint to the Supreme Court (keeping in mind that Obama probably doesn’t want the job), though I dearly hope they don’t get the chance. Finally, there’s the tiny chance that in a close race, the Supreme Court may decide who the next President is…

The Impact of the Supreme Court

It’s easy to underestimate the power the Supreme Court has on America’s domestic policy, and on people’s lives. What is legal or not is often (perhaps usually) decided not by Congress (the Legislative branch, which drafts, proposes, and votes on new federal laws) or the President (the Executive branch, which approves, implements, enforces, and administers those federal laws), but by the Supreme Court (the Judicial branch, which decides if federal laws adhere to the Constitution, and which acts as the final say on the application of federal laws, and on how state laws are affected by federal laws and the Constitution).

Some landmark policies that the average person associates generally with the US government were specifically decided by the Supreme Court:

  • the legality of a woman’s right to abortion (in the famous court case Roe v Wade)
  • whether states had the right to keep their schools segregated between black students and white students (and much earlier, whether African American slaves were entitled to citizenship)
  • whether same-sex couples can get married (and earlier, whether interracial couples could get married)
  • whether there is any limit on how much money a corporation or union can spend in elections (under the aegis of free speech)
  • the legality of some aspects of Obamacare (aka the Affordable Care Act), which determined if the law as a whole could be implemented
  • whether Florida could recount the ballots in the contested 2000 election between George Bush and Al Gore (though this is a rare instance… that usually doesn’t happen)

Some of these are issues that could have specific federal laws about them, but which Congress did not address. For example, Congress has never made a federal law that makes same-sex marriage legal, and it probably would have been decades before that would ever have happened, if it ever did (politicians typically play it safe, because they have to try to get re-elected); but based on the Supreme Court’s hearing of lower (state and district) courts’ rulings on state laws to determine if state laws were legal through the lens of the federal Constitution, and on the Supreme Court’s decision around some federal laws, it became legal for same-sex couples to get married. Congress could still make a law on this, one way or another, to settle details or try to overturn the Supreme Court’s decision (for example, by changing the Constitution itself), but for the foreseeable future, the Supreme court made same-sex marriage legal in every state of the Union, and has all the federal benefits of marriage.

The Supreme Court decides which cases it will try. On average, SCOTUS tries 60-75 oral arguments (what we think of as a court case) per year, and reviews another 50-60 more cases on paper.

Every year, tens of millions of civil and criminal court cases are tried in US state courts; hundreds of thousands of those decisions are appealed to a higher state court; tens of thousands of those are appealed to a federal district court, if the matter is applicable to federal law rather than state law, and district courts are further organized into 11 federal circuits; thousands of these cases are appealed to the Supreme Court, of which they accept a mere 1–2%. In addition, there are court cases of major federal or interstate crimes, and cases of disputes between state governments or between a state government and the federal government, or maritime laws where no state has jurisdiction, or cases of bankruptcy or ambassadorial issues.

So, the chance that the Supreme Court will hear any particular case is very slim, and is typically only the most important cases, but when they do rule on a case, it sets the precedent for the rest of the country, at a state and federal level, and is rarely overturned.

Scalia’s Legacy

While it’s not polite to speak ill of the dead, and while I can mourn Scalia’s death as a person, I’ve long held a very low opinion of him, and I admit that I’m glad of any opportunity to shift the character of the Supreme Court to a more progressive, compassionate, and modern constituency.

Many have painted Scalia as a patriot who’s made America better; here’s my dissenting opinion.

Scalia was clever, and I think it’s even more important for clever people to also strive to be good people; even more so if they are in a position of power. He may have been a good person to his friends and family, but he did not carry that over into how he served this country.

His writings struck me as insincere, and his claim to adhere to “Constitutional originalism” was belied by his whimsical interpretations of the US Constitution, such as his very modern stance that the 2nd Amendment ensured private ownership of guns, rather than the original emphasis on militias for national defense, and the absurd notion that “The Constitution is not a living document”, when the Constitution itself defines how to amend it.

And while he’s perhaps most famous for his dissenting opinions, it’s his majority rulings that have caused the most damage to America and Americans. And even beyond that, he’s used his Judicial authority to step into decisions on lower courts. For example, in 2000’s Presidential election, it was Scalia who personally intervened in the Florida court decision to halt the recount, and later the Supreme Court ruled not to let the votes be recounted, handing the election to George W. Bush.

Beyond his own rulings, his influence and legacy is in giving voice, authority, and credibility to a radical conservatism that influenced a generation of legal thought, carried on in Alito and Roberts, which holds that interpreting the text of the law is more important than the applicability to modern society and technology. In other words, it claims that trying to imagine (in a ridiculous fantasy) the opinions of a person living over two centuries ago, when this country was yet unformed, is more relevant than a view informed by the country as it has since developed. Generously, this is truly “conservative”, preserving the prejudices and ignorance of bygone eras along with any wisdom; more pointedly, this was a convenient way to appear impartial while twisting the result to his own backwards ideological view.

Scalia’s rulings were often specious and inhumane, mere clever arguments based on selective interpretation of the wording of laws and the Constitution rather than attempts at applying justice. In dissenting on a ruling for reopening a death-penalty case, where most of the original witnesses had recanted their testimonies, Scalia said, “Mere factual innocence is no reason not to carry out a death sentence properly reached.” For Scalia, it seems, the law was not a way to achieve social or personal fairness, but a pro-forma game whose rules were both strict and meaningless.

It’s hard to imagine someone as retrograde as Scalia getting nominated or confirmed, so I’m hopeful that we’ll have a more reasonable, just, and progressive Supreme Court in the next few months. This is how the Founding Fathers wanted this country to work… with each generation forging its own vision of a more perfect union, renewing the government to meet their own needs and desires, with the consistent thread of life, liberty, and the pursuit of happiness. And, in the end, justice.

Bordering on Factual

Yesterday, a cool-looking map showed up on my Facebook feed, shared by a friend; it depicts the North American continent with the historical political boundaries of the native Americans. It listed clear boundaries for separate states of the First Nations: Anasazi, Apache Empire, Arawak, Aztec Empire, Beothuk Empire, Cherokee Soverignty, Cheyenne, Chickasaw, Chilcotin, Chinook, Chumash, Comanche, Cree Federation, Creek, Crow, Dogrib, Flathead, Great Sioux Nation, Haida Gwai, Hopi, Huron Supremacy, Inuit, Iroquois Confederacy, Mayan Empire, Mi’kmaq, Mohican, Navajo, Ojibwa, Olmec Kingdom, Pawnee, Pequot, Pomo, Powhatan, Salish, Shuswap, Slavey, Tlingit, and Ute.

Facebook post of Native American map

I’d never before seen such a clear depiction of the geopolitical boundaries of pre-Columbian America, and it was a stark reminder of how we, as a people, systematically invaded and destroyed a continent of cultured peoples. We wiped away their cultures, their languages, their history, and even the memory of them, leaving only scraps behind, and we protect our current borders of land they used to live on. The American Indian Wars ended in 1924, less than a hundred years ago, but it’s not even part of the American political dialog. And we’ve whitewashed our pogroms against Native Americans, in the same way we’re presently sugar-coating slavery in history courses.

The original person who posted the picture on Facebook also included this commentary,

America before colonization…. I’ve never seen this map in my entire 25 years of formal education. Not in one history book or one lesson. This is not a mistake… Representation matters!!! #NativeHistory #BeforeAmerica

Well said. And others agreed… the post has over 150,000 shares as I write this!

But something smelled wrong to me about the map itself.

Continue reading “Bordering on Factual”

You’re drunk FCC, go home

I just chimed in to the FCC to request that they stop the merger of Comcast and Time-Warner Cable. I don’t know if my voice will make a difference, but I do know that saying nothing will definitely not make a difference.

Here was my statement to the FCC (flawed, I’m sure, but I hope the intent and sentiment is conveyed):

Allowing the merger of Comcast and Time-Warner Cable will dramatically decrease consumer benefits and choice.

Some mergers can be good, allowing struggling companies to reduce losses; in this case, neither Comcast nor Time-Warner Cable is in a situation that needs this merger for financial stability; both companies are currently thriving in the marketplace.

Innovation and an open market for goods and services is in the best interest of the American people. This was clearly shown when the Bell System was broken up January 8, leading to the emergence of advanced competitive services, including cellular phone service, and lower prices. The FCC should take that as a model, and decrease the monopolistic merger of competitors, which decreases this innovation, price competition, and customer choice. Customer service is already notoriously poor at both companies, and decreasing customer choice is likely to make it harder for customers to receive adequate service.

Without competition, Internet providers have little incentive to provide either improved service or lower prices. The US is already widely regarded as having relatively expensive and slow Internet service compared to other industrial nations, and this merger threatens to make that worse.

In addition to the loss of benefits to the consumer, this merger threatens American jobs. When a merger occurs, service departments also merge, and workers lose their jobs. This is especially true when the mergers are in similar industries; some studies have shown an average of 19% job loss, far above the norm of 7.9% when the industries are unrelated. Comcast currently employs 136,000 people; Time-Warner Cable currently employs 51,600 people; if the average job loss takes place, that could mean approximately 35,644 jobs lost, or more conservatively 14,820 jobs, in a still-struggling employment market; many of these will be unskilled labor, which is even harder to resolve. While no laws in the US take into account the effect of job loss on mergers, this is still a factor that can be taken into account by the FCC; laws are only necessary when systemic problems arise in the behavior of key industry players and regulators, and allowing this merger could necessitate the creation of a law that would otherwise be avoided.

Please take the necessary steps to block this merger.

If you are a US citizen, you have until August 25th, 2014 to file a comment. The FCC seems to have gone out of its way to make this difficult, so here are some step-by-step instructions:

  1. Fill out the Free Press petition first just in case. Then, if you want to register your opposition independently…
  2. Go to the FCC  Electronic Comment Filing System page
  3. Enter “14-57” in the Proceeding Number field; you’ll get no immediate confirmation, but this is the code for the “Applications of Comcast Corporation and Time Warner Cable Inc. for Consent to Assign or Transfer Control of Licenses and Applications”. (Note: this is not arcane at all. That’s just an illusion.)
  4. Fill in all required personal information
  5. Ensure that the Type of Filing field is set to “Comment” (the default)
  6. Write a text document explaining why this is such a bad idea; crib mine if you like, or find a much better rationale, but be sure to be clear in your opposition (or support, if you’re a masochist).
  7. Upload your document using the Choose File button. (That’s right, you can’t just leave a comment in a text area, you have to write a separate document. The FCC seems to accept at least .txt and .doc files.) Add your optional description of the file in the Custom Description, so they know your sentiment even if they don’t open your file (which is pretty likely); I labeled mine “Block Comcast-TWC merger”.

Yay! You live in an arguably democratic country!