Roy Moore is very likely to be the next Senator from Alabama. He’s currently in a special election run-off to replace former Senator and current Attorney General Jeff Sessions. Sessions, as most people who follow politics know, has a well-documented history of racial insensitivity (at least); Moore, on the other hand, is a flat-out crazy theocrat.
Back in 2016, I wrote about Moore, who was then on the Alabama Supreme Court, after he ordered Alabama officials to ignore the U.S. Supreme Court’s decision on same-sex marriage.
For those of you who’ve been vacationing on the moon, Moore—who has long been a religious zealot with delusions of grandeur—is the Chief Justice of the Alabama Supreme Court, a position he regained after being removed for defying federal law and several court orders by erecting a five-ton replica of the Ten Commandments at the door to the Alabama courthouse. Most recently, Judge Moore issued an administrative order declaring that “Alabama probate judges have a ministerial duty not to issue any marriage licenses” to same-sex couples. The Supreme Court’s June Obergefell decision legalizing same-sex marriage involved a case from a different federal circuit, so it does not apply in Alabama, Moore argues. Legal experts say that is a patently wrong interpretation of American law.
Patently wrong indeed! Law students who took such a position would never pass a bar exam.
Read my lips, “Judge.” If you don’t like gay people, fine. Don’t invite them over for dinner. If you disapprove of same-sex marriage, don’t have one. If your version of God hates homosexuals, feel free to pray for their descent into the fiery pits (or whatever hell you people believe in).
But no matter how fervent your belief, no matter how wedded you are to your animus, you don’t get to overrule the Supreme Court. If you are incapable of following and applying the law, you need to be impeached or otherwise removed from a position that allows you to affect other people.
As the quoted language notes, the flap over same-sex marriage (and ethical Judicial behavior) wasn’t the first time Moore had insisted that his version of Christianity should take precedence over the Constitution and the rule of law.
Back in 2001, Moore, at the time the elected Chief Justice of the Alabama Supreme Court (a powerful argument against judicial elections), placed a 5,280-pound granite monument in the rotunda of Alabama’s Judicial Building in Montgomery. He had ordered the monument without the knowledge of the other justices on the court.
The monument depicted the Bible, open to two pages on which the stonemason had carved the King James version of the Ten Commandments. A private evangelical group, Coral Ridge Ministries, paid for it.
A Montgomery attorney sued to have the monument removed, and–predictably–Moore lost both at trial and on appeal. He was subsequently removed from the Court, but ran for his old seat in a subsequent election, and won. His refusal to follow the Supreme Court’s ruling in the same-sex marriage case was pretty convincing evidence that he hadn’t moderated his views, or his willingness to ignore laws inconsistent with his version of Biblical Truth.
Now he wants to represent Alabama in the United States Senate, and he is currently leading in the polls–despite (among other things) recently publicly reaffirming his “personal belief” that President Obama wasn’t born in the United States.
Just what America needs: another demented zealot determined to make America Godly (i.e., white, straight and Christian) Again.
No one who watched Mike Pence dramatically expand Indiana’s voucher program at the expense of the state’s public schools, and certainly no one who has followed the appointment and appalling performance of Secretary of Education Betsy DeVos, could come away thinking “Boy, those people really care about education!”
Despite their rhetoric, Pence, DeVos and a number of other proponents of “educational choice” have a decidedly religious agenda. DeVos has been quoted as saying that vouchers will usher in “God’s kingdom.” Pence’s voucher program hasn’t improved educational outcomes, but it has financially benefitted the religious schools that participate.
When it comes to school choice, options are more limited for Indiana’s LGBT students.
Lighthouse Christian Academy in Bloomington recently made headlines for promising students an excellent, “biblically integrated” education — unless they identify as lesbian, gay, bisexual or transgender. The school also received more than $650,000 in public funds last year through the state’s voucher program.
When the Lighthouse Academy issue emerged, Chalkbeat–an online news site devoted to educational reporting–decided to investigate the extent of anti-LGBT bias in the schools participating in Indiana’s voucher program.
In Indiana, over 34,299 students used vouchers to attend a private school last fall, making it the largest such program in the country. It’s also a program that U.S. Education Secretary Betsy DeVos has applauded — which means Indiana offers a helpful glimpse at how a DeVos-led national expansion of vouchers might shape up.
Our investigation found that roughly one in 10 of Indiana’s voucher schools publicly shares a policy suggesting or declaring that LGBT students are not welcome. Together, the 27 schools received over $16 million in public funds for participating last year.
Many private, religious schools are also accredited by a group that provides advice about how to turn away LGBT students. Given that nearly 20 percent of schools do not publicize their admissions policies, the true number of schools with anti-LGBT policies is unclear.
Of the 27 schools with explicitly anti-LGBT policies, 14 were accredited by the Association of Christian Schools International, a pro school-choice group that provides its members with a handbook titled “Steps Your School Can Take When Dealing With Homosexual Issues.”
The Chalkbeat article quotes religious school officials who stress the importance of respecting the religious views of schools operated by different denominations. I have no quarrel with respecting their right to teach their beliefs; I do have a quarrel with their right to have those beliefs subsidized with my tax dollars.
In Zelman v. Simmons-Harris, the Supreme Court ruled that vouchers to religious schools did not violate the religion clauses of the First Amendment, because the vouchers (theoretically) went to the parents, who were free to use them at either religious or secular schools. The problem with this approach is the same as the problem facing gay children in Indiana: the “choice” is illusory, because virtually all of the participating schools are religious.
Charter schools–which are still public schools– manage to operate while being subject to the same constitutional and civil rights constraints that apply to traditional public schools. There’s no reason that private schools–religious or not– that benefit from voucher dollars shouldn’t be required to do likewise.
Of course, at some point, Hoosiers are going to have to face up to the fact that although vouchers do not improve student’s test scores, they certainly do improve the bottom lines of participating religious schools.
Despite being marketed as a way to give parents a “choice” to enroll their children in “better” schools, Indiana’s vouchers are simply a financial windfall for religious schools at the expense of our public schools. And if a few LGBTQ kids face discrimination, well that’s just too bad.
There are multiple reasons to be horrified by Trump’s pre-emptive pardon of the despicable Joe Arpaio.
There’s his usual display of legal and constitutional ignorance: By disdaining the process for determining the propriety of issuing a Presidential pardon and by displaying, once again, contempt for the Separation of Powers that is a foundation of our legal system, Trump has again illustrated that he is the perfect Dunning-Krueger model–an ignoramus who doesn’t know what he doesn’t know.
Traditionally, Presidential pardons are issued after a person has served some part of his sentence and shown remorse, or alternatively, to correct a miscarriage of justice. There’s a thorough vetting process by the justice department to assess these factors. Trump, of course, ignored these criteria.
If that were the extent of the damage, this typically Trumpian fit of pique would simply be another entry in the extensive list of “reasons we shouldn’t elect people who don’t know what government is or does.” But it’s actually the least significant of the issues involved.
To understand those issues, you need to know some things about Arpaio. From the Guardian, we learn
Arpaio, the self-styled “toughest sheriff” in America, systematically abused his powers during his two decades in office before being voted out last November. Most notoriously, Arpaio commanded his police to detain people solely on the suspicion that they were illegal immigrants, even in cases where the “suspects” had violated no state law. This amounted to a blanket invitation to terrorize the domestic population through egregious practices of racial-profiling.
In 2011, a federal district court judge, a Republican appointee, ordered Arpaio to stop a practice that constituted a flagrant violation of constitutional rights. Rather than submit to the federal court order, Arpaio acted in open defiance, placing himself above the federal judiciary and the rule of law. Last month, he was properly convicted of criminal contempt for his defiance. He faced a maximum of six months in jail, but all that is now moot thanks to the president’s pardon.
From the Boston Globe, we learn this behavior was nothing new.
In 1997, a few years after Arpaio assumed office, the US Department of Justice sued him after an investigation found rampant mistreatment of inmates in his jails and a pattern of excessive force by the sheriff’s staff. Officers hog-tied inmates and used stun guns on them while they were handcuffed or in restraining chairs. The lawsuit was dismissed in a settlement, but Arpaio’s methods of abuse didn’t change at all.
As a result, many prisoners died at an alarming rate without explanation. According to the Phoenix New Times, taxpayers in Maricopa have paid more than $140 million to litigate and settle countless claims of brutality while Arpaio was sheriff.
By the mid-2000s, Arpaio had found another target to terrorize and criminalize: unauthorized immigrants (much like Trump did during the presidential campaign.) Arpaio became obsessed with enforcing federal immigration law, conducting workplace raids and immigration patrols where his staff stopped people who looked Hispanic and arrested those who were illegally in the country.
This history is well known, both to the populations Arpaio targeted and to the White Supremacists, neo-Nazis and Klan members who supported his behaviors. Trump’s pardon sent a clear message to both groups– especially to the bigots in his base who might have worried about Trump’s continued commitment to their “cause” in the wake of Bannon’s departure from the White House.
This pardon goes well beyond the “dog whistles” and “winks” employed by many Republicans to let bigots know they remain welcome in the Grand Old Party. It is a flat-out endorsement of racism, and I’m sure it comforted Trump’s White Nationalist supporters.
The spectacle of a United States President openly siding with enemies of everything America purports to stand for is nauseating, but even that is not the worst implication of this pardon.
Allow me to explain.
The Bill of Rights protects individual rights against government infringement. When a government agent–that is, someone acting on behalf of the government–violates the constitutional rights of an individual, both that agent and the government are answerable for that infringement. Our legal system punishes people who misuse the power of the state.
This pardon voids that guarantee of accountability. It guts the rule of law that anchors our constitutional system. It is telling government officials who abuse their authority that this President has their back, that they won’t be held to account for their misconduct–so long as their misconduct is consistent with the President’s own “priorities” and interests.
That’s how a constitutional democracy becomes an autocracy.
If this isn’t a constitutional crisis, I don’t know what is.
This week, the Supreme Court will hear oral arguments in an important gerrymandering case on appeal from Wisconsin. Regular readers are undoubtedly tired of my posts about gerrymandering, but this seems an apt time to share remarks I recently made to the Washington Township Democratic Club, summarizing the issues.
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I’ve always believed that gerrymandering is a frontal assault on democracy, but a recent electoral analysis from the Cook Report really brought home the extent of that assault: one out of twenty Americans currently lives in a competitive Congressional District.
Think about that for a minute.
How did we get to a place where—as Common Cause puts it—legislators are choosing their voters rather than the other way around? And what can we do about it?
Let me address three aspects of our current situation: first, a brief recap of the effects of partisan redistricting; second, an even briefer reference to the academic literature on the subject; and finally, the possibility that an upcoming Supreme Court case will provide a legal remedy.
First, a recap:
As we all know, whichever party holds a majority in the statehouse in the year following the census wins the privilege of drawing maps that will control the political agenda for the state for the ensuing ten years.
1) the goal is to draw as many “safe” seats as possible–more for the party in charge, of course, but also for the minority party, because in order to retain control, the winners need to cram as many of the losers into as few districts as possible, and those districts are also safe. This process is sometimes called “cracking” and “packing.” We have engaged in this effort since the time of Vice-President Gerry, for whom the process is named –and he signed the Declaration of Independence!– but computers have made the process far, far more efficient.
2) Neighborhoods, cities, towns, townships–even precincts–are evaluated solely on the basis of voting history, and then broken up to meet the political needs of mapmakers. Numbers are what drive the results–not compactness of districts, not communities of interest, and certainly not democratic competitiveness. (I will point out that the numbers used for these calculations are previous votes—if we could get a significant number of people who haven’t previously voted to the polls, there would be far fewer safe seats.)
Some of the results of this partisan process are obvious:
1) The interests of cities, neighborhoods, etc., are less likely to be represented.
2) Safe districts create sloppy legislators: if you are guaranteed victory every election, it is hard to be motivated and interested, easy to become lazy and arrogant.
3) Party preoccupation with gerrymandering consumes an enormous amount of money and energy that could arguably be better directed.
4) Safe seats allow politicians to scuttle popular measures without fear of retribution: Milo Smith, for example, occupies a safe seat in Bartholomew County, and felt perfectly free to single-handedly kill redistricting reform last year.
5) Lack of competitiveness also makes it very difficult to trace campaign donations, since unopposed candidates send their unneeded money to those running in competitive districts. So when the folks with “Family Friendly Libraries” send a check to Rep. Censor, who is unopposed, he then sends it to Sen. MeToo, who is in a hot race; but Sen. MeToo’s campaign report shows only a contribution from Rep. Censor.
These are just a few of the more obvious effects of gerrymandering, and they are all worrisome. But there are two other consequences that deserve special attention, because they undermine the very foundations of democracy.
First, the lack of competitiveness breeds voter apathy and reduced political participation. Why get involved when the result is foreordained? Why donate to a sure loser? For that matter, unless you are trying to buy political influence for some reason, why donate to a sure winner? Why volunteer or vote?
It isn’t only voters who lack incentives for participation: it is very difficult to recruit credible candidates to run on the ticket of the “sure loser” party. As a result, in many of these races, even when there are competing candidates on the general election ballot, the reality is usually a “choice” between a heavily favored incumbent and a marginal candidate who offers no new ideas, no energy, and no genuine challenge. And in increasing numbers of statehouse districts, the incumbent or his chosen successor is unopposed even by a token candidate. Of the 100 seats in the Indiana House last November, all of which were on the ballot, 32 candidates ran unopposed.
We hear a lot about voter apathy, as if it were a moral deficiency of the voters. Allow me to suggest that it may be a highly rational response to noncompetitive politics. Watch those same “apathetic” folks at a local zoning hearing when a liquor store wants to go in down the street! Rational people save their efforts for places where those efforts count, and thanks to the increasing lack of competitiveness, those places often do not include the voting booth.
Second, and even more pernicious, gerrymandering has contributed to the polarization of American politics, and our current gridlock. When a district is safe for one party, the only way to oppose an incumbent is in the primary–and that almost always means that the challenge will come from the “flank” or extreme. When the primary is effectively the general election, the battle takes place among the party faithful, who also tend to be the most ideological of voters. So Republican incumbents will be challenged by the Right and Democratic incumbents will be attacked from the Left. Even where those challenges fail, they leave a powerful incentive for the incumbent to toe the line– to placate the most rigid elements of the party. Instead of the system working as intended, with both parties nominating folks they think will be most likely to attract support from a broad constituency, we get nominees who have been chosen by the most extreme voters on each side of the philosophical divide. Then we wonder why they can’t compromise and get the people’s business accomplished!
Until and unless we eliminate gerrymandering, whoever we send to Washington will by stymied by the intransigence and gridlock that is an inevitable consequence of the current system. And–perhaps even worse– reduced voter participation has significant implications for the legitimacy of government action. Is a Representative truly representative when he/she is elected by 10% or 20% of the voters in the district?
Eliminating gerrymandering won’t magically make all districts competitive. (Big Sort) But when I was doing research for an academic article on redistricting, I was stunned by the number of scholars who simply dismissed the role of redistricting in the creation of safe districts—they attributed the well-documented incumbency advantages to things like better fundraising and weak opponents. I hate to be snarky, but that’s what you get from people whose understanding of politics is entirely abstract, and divorced from real-world experience. Of course incumbents raise more money and have weak opponents—it’s because they have safe seats. File under “duh.” (Reading those articles reminded me of Lee Hamilton’s remark—I think it was in the wake of Citizens United –to the effect that the Supreme Court could do with fewer Harvard Law graduates and more Justices who had once been county sheriffs….)
Interestingly, I found one of the best and most complete reviews of recent scholarly literature on the effects of partisan redistricting in an amicusbrief filed by Thomas Mann and Norman Orenstein in the case of Harris v. Arizona Redistricting Commission. Mann is a Democrat and Orenstein is—or at least was—a Republican; they are both political scientists and they’ve written extensively about redistricting. In the brief, they cited to studies that tied redistricting to the advantages of incumbency, and they also made an interesting point that I’d not previously considered: the reliance by House candidates upon maps drawn by state-level politicians operates to reinforce what they described as “partisan rigidity.” (If you want to see how that works, I recommend Ratfucked, a recent and very informative book that documents the Republicans’ nationwide gerrymander in 2010.)
Mann and Orenstein also cited to a really interesting article in which researchers investigated whether representatives elected from districts drawn by independent commissions are less partisan. This matters, because redistricting reform is unlikely to change state-level party dominance. We all know that even if Indiana reforms its redistricting practices, Republicans will continue to control the state, albeit probably not with today’s Super-Majority. This will still be a Red State. Would the Republicans elected from non-gerrymandered districts suddenly become less partisan? Surprisingly, the answer is yes. Here’s the conclusion of the scholars who researched that question.
“Contrary to the initial expectations of the authors, the evidence reviewed here suggests that politically independent redistricting seems to reduce partisanship in the voting behavior of congressional delegations from affected states in statistically significant ways.”
Changing redistricting practices through the political system is a pretty daunting task, as we’ve seen here in Indiana. So let me just conclude by addressing the prospects for a court-imposed solution.
As most of you know, the Court has refused to allow racially discriminatory redistricting. But it has declined to intervene in the handful of cases it has heard alleging partisan redistricting, for a couple of reasons.
In fact, the Court only narrowly held that claims of partisan gerrymandering are justiciable under the 14th Amendment’s Equal Protection Clause—four Justices would have ruled that gerrymandering is a “political question” and the Court shouldn’t even hear such challenges. Even the five Justices who agreed that the Court could properly intervene concluded that a discrepancy between the percentage of votes garnered by a political party and the number of seats that party ultimately won was insufficient to demonstrate both partisan purpose and effect.
The problem the Court identified was lack of a reliable standard or formula for determining when a district had been intentionally gerrymandered. The Court has held that plaintiffs must prove both discriminatory intent and discriminatory effect, and that “unconstitutional discrimination occurs only when an electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole.” Proving that requires a test that the Court can apply, and as of the last challenge heard by the Court, no such test had been developed.
Until now.
In “Partisan Gerrymandering and the Efficiency Gap,” two political science professors from the University of Chicago proposed a standard they call the “efficiency gap,” using the concept of “wasted votes.” The efficiency gap is the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast. “Wasted” votes are ballots that don’t contribute to victory for candidates; they may be lost votes cast for candidates who are defeated, or surplusvotes cast for winning candidates in excess of what they needed to win. When a party gerrymanders a state, it tries to maximize the wasted votes for the opposing party while minimizing its own, and that produces an efficiency gap. In a state with perfect partisan symmetry and no gerrymandering, both parties would have the same number of wasted votes. As a matter of simple arithmetic, the efficiency gap is equal to a party’s undeserved seat share.
in Gill v.Whitford, Democrats are relying on the efficiency gap test to demonstrate gerrymandering in Wisconsin. The state has appealed from a judgment by a three-judge federal panel that applied the test, ruled that the maps were an unconstitutional gerrymander, and ordered the Wisconsin Legislature to redraw them.
If the Supreme Court agrees with that three-judge panel, we may finally have a tool to force State Legislatures to reform their redistricting practices. We shouldn’t kid ourselves that it will be easy; elected officials aren’t going to cheerfully relinquish the tools that have given them power. It will take civic pressure, political will and probably additional litigation.
But eventually, we might live in a country where more than one in twenty Americans has an actual legislative choice at the ballot box.
Approximately 133,000 LGBT workers in Indiana are not explicitly protected from discrimination under state law. Discrimination against LGBT employees in Indiana has been documented in court cases, administrative complaints, and other sources. Many corporate employers and public opinion in Indiana support protections for LGBT people in the workplace. If sexual orientation and gender identity were added to existing statewide non-discrimination laws, 61 additional complaints of discrimination would be filed with the Indiana Civil Rights Commission each year. Adding these characteristics to existing law would not be costly or burdensome for the state to enforce.
Recent polling discloses that 73% of Indiana residents support the inclusion of sexual orientation as a protected class under Indiana’s existing civil rights law. That’s 73% in Very Red Indiana.
Major employers in the state have worked with civil rights and civil liberties organizations in an effort to add “four little words” to the list of categories protected under the state’s civil rights statute: sexual orientation and gender identity. So far, the legislature has exhibited zero interest in doing so.
I still remember a discussion in my undergraduate Law and Policy class a few years ago–at a time when the state was embroiled in debate over Mike Pence’s infamous effort to ensure that Hoosiers have the “religious freedom” to discriminate against their LGBTQ neighbors. An African-American student was stunned to learn that, in Indiana, an employer could legally fire someone simply for being gay.
Shaking her head, she said “Black people often don’t get justice, but at least there’s a law on the books! At least there’s an official position that discrimination against us is wrong!”
The public outrage over Pence’s RFRA led to a subsequent “clarification” (cough cough) that the measure would not override provisions of local Human Rights Ordinances that do proscribe discrimination on the basis of sexual orientation. A number of city councils around the state promptly added those protections to their Ordinances, which was gratifying.
The problem, as the research points out, is twofold: municipal ordinances in Indiana don’t have much in the way of “teeth.” They are more symbolic than legally effective. Worse, for LGBTQ folks who don’t live in one of those municipalities, there are no protections at all.
The result: Only 36% of Indiana’s workforce is covered by local non-discrimination laws or executive orders that prohibit discrimination based on sexual orientation and gender identity. And that discrimination occurs with depressing regularity.
– In response to the National Transgender Discrimination Survey, 75 percent of respondents from Indiana reported experiencing harassment or mistreatment at work, 30 percent reported losing a job, 21 percent reported being denied a promotion, and 48% reported not being hired because of their gender identity or expression at some point in their lives.
– Several recent instances of employment discrimination against LGBT people in Indiana have been documented in court cases and administrative complaints, including reports from public and private sector workers.
– Census data show that in Indiana, the median income of men in same-sex couples is 34 percent lower than that of men married to different-sex partners.
– Aggregated data from two large public opinion polls found that 79 percent of Indiana residents think that LGBT people experience a moderate amount to a lot of discrimination in the state.
