Brief analysis of appellate court voting opinions

Here is one lawyer's take on what you are seeing out of the appellate courts in regards to ballet counting.* I think you will find this even-handed, but feel free to critique or set me straight on what the law says. (For the full argument you need to read the full post.)

As far as I can tell, the courts are consistently requiring states to follow state statute, (passed by both houses of a state's congress, and signed by the governor) and are not allowing state administrators or anyone else to make one-time changes based on Covid-19 or any other reason. That seems fair on its face.

They have also previously indicated that they are looking to enforce the status quo, and not allow last minute changes, which they have previously done in prior court cases as well. One can reasonably object that the court's intervention at the last minute is itself a late intervention, and I think that criticism has traction, but they would say they are putting the ball back on the line of scrimmage, after it was moved without permission.

These observations may also explain why we are likely to see different rules in different states. The courts are generally holding each state accountable to their own state statutes, and those statutes vary by state. This may result in a requirement that ballots be received by election day in one state, but merely postmarked by election day in another state.

Rather than looking at these rulings as benefiting Republicans or Democrats, or being handed down by judges appointed by Republicans or Democrats, (though it is hard not to notice the consistency of the prejudice by judges on both sides) we should look at the what state statutes, state constitutions, and the Constitution of the United States say.

On their face, most of the court's rulings appear to be largely fair, and simply an enforcement of each state's neutral election laws.

Here is why they are wrong.

In the context of a global pandemic, strictly enforcing state laws infringes on the right to vote. (The same could be true in the future, due to some other outside disruption, like a terrorist attack on the day of the election, especially one targeted at polling sites.)

This right was most clearly articulated by Chief Justice Earl Warren in Reynolds v. Sims 377 U.S. 533, 555 (1964), when he said, “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. [...] Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society."

The state statutes do this, without intent, because they fail to protect all citizen's right to vote in the context of a pandemic.

In addition, the impact of Covid-19 has a disproportionate impact on protected groups. Therefore in application, the law unintentionally violates these citizens right to vote in particular. This violates the equal protection clause of the 14th Amendment.

While the right to vote was not originally granted to citizens by the U.S. Constitution, the 26th Amendment extended the obvious, but as yet unwritten right to vote to all people over the age of 18. (Unwritten in the US Constitution.)

It would be a strange thing indeed then to say that the Constitution does not grant a right, which the 26th amendment grants to all adults, by prohibiting discrimination on the basis of age.

In fact, four of the fifteen post-Civil War constitutional amendments were ratified to extend voting rights to different groups of citizens. These extensions state that voting rights cannot be denied or abridged based on the following:

"Race, color, or previous condition of servitude" (Fifteenth Amendment, 1870)

"On account of sex" (Nineteenth Amendment, 1920)

"By reason of failure to pay any poll tax or other tax" for federal elections (Twenty-fourth Amendment, 1964)

"Who are eighteen years of age or older, to vote, shall not be denied or abridged by the United States or by any state on account of age" (Twenty-sixth Amendment, 1971)

(Hat-tip to Wikipedia for that last little bit)

Note that those who regularly make use of arguments based on what the text says, or what its original meaning was, rarely want to take a close look at the original intent of the various amendments. (Conservatives are especially allergic to the 14th Amendment's equal protection clause.) In the next few days you are likely to hear some talking heads state that the Constitution does not give anyone the right to vote. It does.

State law as recently applied by the courts, violates the equal protection clause of the Constitution, because even though they are written and intended to be neutral laws, as applied in our current context, the laws have a disproportionate impact on a number of protected groups, including women and people of color.

In other legal contexts, we have precedence for how to deal with instances where a law that was intended to be neutral, nonetheless has a disproportionate impact on one group or another. Some of these examples have to do with religious freedom. So it is strange fruit indeed, when one finds that a certain way of reading the law is employed one way in one instance, (to protect religious freedom) but is then entirely discarded later on, leaving the right to vote for so many, dangling from a tree. *I do not practice voting rights law, or constitutional law. Outside of law school, I have not studied these matters in-depth. Just as you should question doctors whose views seem questionable, so too should you question any given lawyer's views. A law degree does not make one smart or wise. To the contrary, many of us are dumb. : )

Why some of us Evangelicals will be voting for a Democrat come fall

In many circles it goes without saying that Evangelical Christians can vote for any reasonable candidate on either side of the aisle, and that this is a large and diverse group of people. However that truth is not understood everywhere. There are those both in the movement and outside of it who think of this branch of Christianity as a singular monolith. Because of that I want to put into writing an alternative perspective, an explanation as to why some Christians with Evangelical religious beliefs vote for Democrats.

In addition, I think this explanation is in order because, while there has been a necessary outcry about Donald Trump, others have reasonably pushed back and said, but what about the Democratic candidates and their support of abortion? Aren't they just as immoral as Donald Trump if not more so?  That is a fare question, assuming abortion is immoral. 

Here is our answer.

We have become disillusioned with the notion of a Christian candidate. We no longer believe what we have come to see as amoral conservative propaganda, peddled in and around church.

We are not under the illusion that a vote for Secretary Clinton or Senator Sanders is a vote for God's candidate, but we are concerned about those that think a vote for any candidate that calls himself a Christian or an Evangelical is, even if they are authentically evangelical. Effective public policy is not directly tied to ones beliefs about God.

Because like all evangelicals, we read Scripture, understand Christ's value for life, and refuse to check our values at the door, we value all policies that tend to create life, and disagree with all policies that tend to cause death. Because of this we are pro-creation, anti-death penalty, anti-war, pro-criminal justice reform, and in favor of a strong social safety net including access to healthcare that tends to reduce abortion.

We don't think "pro-life" rhetoric is enough. We think that Christ's parable about the brother who said he would not, and then did, vs the brother who said he would, and then did not, matters.

If a vote for a Republican directly caused all abortion to cease, we might vote for a Republican, but it does not.

In short, those of us who were raised steeped in an evangelical culture that wraps the cross with the flag no longer believe that narrative. However having seen that failure, we are not about to bless the DNC. 

We may vote for a Democrat. We may not. But we are fundamentally opposed to the unholy alliance between the Evangelical church and the state as defined by the GOP.

As someone who continues to hold on to my faith in Christ, I mourn for my friends who have jettisoned the faith all together because they see the church's support of a singular party as deeply immoral. 

We believe the church should stand apart from the state, while holding her accountable. (This is different than individual Christians who of course may be involved in politics, and may have a unique calling there.) We believe that good Christians can disagree, but that no one party is synonymous with an Evangelical perspective. 

It may be that in some cases a more conservative market oriented approach to solving a specific problem proves to be the most effective approach. But we don't believe that such a position is fundamentally Biblical or inherently right in all circumstances. We don't believe that less government causes people to flourish, in fact, we think it is often the opposite. We believe there are a host of a priori assumptions that go into being conservative that are not necessarily true, and certainly not Biblical. For this reason, we won't be voting for a conservative candidate, and we might be voting for a Democrat.

My apologies that this comes across a little strong. I say this respectfully but forcefully to counter a level of certainty we have come to expect from conservative evangelicals.

To be clear, who one votes for is not the most important thing to me. Statistically, one's vote is irrelevant, so I don't think who one votes for is a pressing moral issue. I think a number of policies are pressing issues, I just don't see the act of voting as pressing. But I wanted to take a few minutes to defend my fellow evangelicals who are openly (or secretly) voting for a Democratic candidate and who in some circles, may be getting peppered with questions as to why.

Thoughts on Integrating Faith, Politics, and Public Policy

There are two things one does not talk about in polite company, religion and politics.  I happen to have a passion for both, and to various degrees, my professional life has moved in both circles.  Integrating these passions well then, is something I care about, and that leads to the question of how that should be done.

My goal here is not to set out a treatise for all people at all times.  Rather, I just want to share some thoughts based on my journey.

On the one hand, I do not think there should be a separation of church and state that extends to one’s own soul.  Nor do I see the state as the primary vehicle for extending Christ’s reign on earth. How then should a Christian live an integrated life when it comes to religion and politics?  And if I don’t see the state as the primary vehicle for extending Christ’s reign on earth, why care about it all?  I think the prophet Jeremiah gave a beautiful answer to this question, when he addressed the Jews who had been carried away into exile. He said, “seek the peace and prosperity of the city to which I have carried you into exile. Pray to the Lord for it, because if it prospers, you too will prosper.”

Scripture on Judging Others

There is a tension in scripture on the use of the word "judge."

For example, John 7:24, and many other similar passages say things like, "Stop judging by mere appearances, but instead judge correctly.”
 
While in contrast, Romans 14:4 says, "Who are you to judge someone else’s servant? To their own master, servants stand or fall. And they will stand, for the Lord is able to make them stand... You, then, why do you judge your brother or sister? Or why do you treat them with contempt? For we will all stand before God’s judgment seat."

And yet, 1 Corinthians 6:2 says: "Do you not know that the Lord’s people will judge the world? And if you are to judge the world, are you not competent to judge trivial cases?"

This all seems like it could be a problem.  Taking a look at the full context of each of those passages helps, and I think the Apostle James offers further assistance. Judging rightly is closely related to teaching, admonishing, and loving others well, and James has this to say about teachers: "Not many of you should become teachers (which inevitably involves making judgements), because you know that we who teach will be judged more strictly. [Remember] we all stumble in many ways." James 3.

And Paul says this: "Do nothing out of selfish ambition or vain conceit. Rather, in humility value others above yourselves, not looking to your own interests but each of you to the interests of the others." Philippians 2:1-4

In my judgement, many Christians are like this blogger, who writes at length on why it is ok to judge others, without looking at the tension in scripture, or talking about how to do so well.  (He lists nearly every passage that says judge, but never looks at Romans 14.)

Exercising discernment, care, concern, teaching, or judgement without humility is an effort doomed to fail, and too often, that is exactly what happens. (For me in particular.)  That is one of the reasons non-Christians, and former Christians, and Christians who often don't identify as Christians, and our culture in general disdains judgement so much; they rarely experience it combined with humility and graciousness.

Reflections on the Affordable Care Act

The problems with Obamacare are well documented.  And they are real.  People have a right to be upset with the roll-out of the ACA.  But the fundamental premise that all Americans should have access to healthcare is being addressed, and it reflects a value for life and justice and generosity.

This article in the New York Times details some of the promises and ongoing problems of the ACA.

In some cases, those most vociferous on the problems are those that have done everything they can to derail it.  They are like a neighborhood bully who, having just rammed a stick through the spokes of a little boys bike says, "see I told you you would crash."

And then there are those who say, "we aren't opposed to access, we are just opposed to this approach."  But were were these people for the 20 or 30 years that this problem developed?  Obamacare addresses problems that were well documented and not being addressed.  Those problems could have been addressed in some other way in the years prior to Obama being elected.  If churches and non-profits should be at the forefront of this effort, why weren't they? Or why wasn't their effort adequate?  Why wasn't their enough of them?  Or did they do the best they could and the inadequacy of the effort prior to Obamacare just illustrates the limits of this approach?  (I'm not judging the efforts of those who were involved in non-profit healthcare prior to the ACA, I'm talking about the systemics of it.)

Finally there are criticisms of cost.  Several things are happening here.  First, American's are being asked to pay the real cost of their healthcare. (Or something closer to that number.)  In some cases, people were getting more than they were paying for.  Second, people are getting an insurance contract that is fundementally better than it was for many in the past.  The situation is similar to regulations on automobiles.  In some parts of the world, you can get a new car for substantially less than you can here in the States, but the workmanship, safety and efficiency all suffer.  You take your life in your hands driving these cars.   In the same way, people who use to have low-cost insurance plans, more than likely did not realize the extent of the exclusions and limitations on those plans.  In some cases they were paying for an insurance contract that was not worth the paper it was written on.  Having said this, this is one area I could see agreeing with conservatives.  Maybe American's should be free to buy bad insurance contracts.  I could see offering a super low-cost insurance contract that came with the equivalent of a Surgeon General's warning.  "Warning!  This contract does not comply with the requirements of the ACA and contains significant limitations, including..."

Having said all this, the problems at present are real.  Good intentions are not enough.  President Obama and his deputies need to deliver on the promises they made because those promises reflect a concern for life, and justice, and generosity.

On the correlation between justice and the gospel

I was once asked if a concern for social justice is a distraction from the Gospel.  Far from being a distraction, justice, both in my personal interactions, and in the community (i.e. social justice) is a part of the good news or gospel of the coming reign of Christ.  And like the Kingdom of God, justice is for both the now and the future.

The gospel or good news of Christ is that the Kingdom of God has come.  We are each individually and collectively invited to participate in and submit to the reign of Christ.  We do this by confessing our sins, both those of an individual nature, and those that we participate in collectively.  We must also invite Christ to have the preeminence in our lives.  We ask him to enable us to live according to his values. In turn Christ's values demand that we order our lives and our communities in ways that are just.

(For more on the definition of justice see Tim Keller's article What is Biblical Justice, or this good conversation starter on justice from a friend working to stop sex trafficking.)

While my own identity is a moving target, I grew up as an evangelical, and continue to own many aspects of that identity in the broad sense of the word as defined here.  For evangelicals, there are three key principles that help support the connections between justice, the Kingdom of God, and the Gospel.

The Correlation Between Gay Rights and Religious Liberty

I grew up in a conservative Evangelical home, attending a conservative Evangelical church.  While my tribal allegiance is a moving target, I am a person of faith who values both religious freedom and gay rights, and I think there is a correlation between the two.

Our present notion of religious liberty was not a foregone conclusion when the Founding Fathers met in the State House of Philadelphia in 1787.  For the most part, the tradition of forcing morality on dissenters was common place.  The established churches of Europe forced out the Puritans, and then they forced out people that they disagreed with; people like RogerWilliams who championed religious freedom and fidelity to conscience. It was Williams who insisted on buying land from the Native Americans rather than simply taking it, and who in contrast to the Puritans, embraced religious diversity when he founded Rhode Island.

When the law is not what it seems

Last year I read a case in my property textbook that has stuck with me.  It illustrates the ways that seemingly generic laws are used to empower the powerful at the expense of the weak.

Suppose Landlord has a piece of property. Tenant A is currently in possession and will be moving out, and Tenant B has signed a lease to takeover the premises. If Tenant A does not move out, who should be responsible for taking the time and trouble to evict Tenant A? The Landlord, or Tenant B who has already signed a lease and has the legal rights to the use of the property?

On its face it is a strait forward question. There are pros and cons on both sides. We simply need to pick a rule and apply it consistently so that the market will know what to expect. For some, as long as the rules are followed, that is justice. Which rule we use is not a question of justice. This is not a particularly moral question.

There is a certain logic to requiring the person who now wants to use the land, and who has the legal right to the land, the lease holder, to get rid of the person who has overstayed their lease. But who is more than likely to know that Tenant A will not be moving out, and is in fact three months behind on their rent. Would Tenant B know anything about this? In fact, it is quite possible that the Landlord might rent the property to Tenant B so he could get paid knowing full well that Tenant A was not going anywhere without a fight. Meanwhile, the Landlord is trying to collect rent from both parties, and has shifted this problem to the unwitting Tenant B who had no idea what was going on prior to him leasing the land.

Approaches to faith and politics.

According to Jackson, whose video appears below, "It is time [for the black church] to end the slavish devotion to the Democratic Party. [Because] They have insulted us, used us, and manipulated us.  [And] They have saturated the black community with ridiculous lies..."

For some time I have been caught in a tension.  On the one hand I feel compelled to raise a similar prophetic voice on the churches syncretism with the Republican Party.  I want to name the injustices I feel they implicitly or explicitly condone and sometimes even advocate for.  But at the same time I recognize that true reconciliation can only be found by people willing to dialog with respect and nuance.

Even while I have moved to the left, I continue to see the wisdom in some aspects of a more conservative approach.

This tension was illustrated for me when I watched the Jackson's video which was posted by a friend on facebook yesterday.  When I initially watched it I thought it was one-sided and manipulative.  It looked to me like Jackson was using his position as a pastor and his spiritual authority for political gains.  That is immoral.  I still think the video is possibly manipulative, but some friends pointed out that the man probably has the spiritual and relational authority to say what he said, at least for the audience he knows best, his black church.  If placed in the proper context, his words seem somewhat acceptable.

At the same time I thought, what if you flipped the script?  Does the tenor of what he said still hold true from an anti right-wing perspective?  Does what he said become appropriate if it comports with my personal politics?   Or does both a right wing critique and a left wing critique of this type fall flat?

With that in mind, I carefully listened to the video word by word and wrote a left-wing mirror image of what was said. It appears below.

I both do and do not agree with what I have written.  I am torn.  Do I embrace a radicle version of the Christian faith that leans well to the left?  I have certainly rejected much in Christian culture that leans to the right.  But for some reason I can't quite embrace the left.  I would like to think that I prefer to take a more nuanced road, a more respectful road.  But is that just a lack of commitment?  An inability to sacrifice?  Might what I have to say below be true?

What bothers and intrigues me is that I am compelled both to fight and make peace.  For those that take a partisan approach, I have some partisan answers.  For those that use Bible verses to judge others, I have some Bible verses in mind.  But I know that when I do, it is not quite right. Often, because I lack humility.


As Pastor Tim Keller discusses here, Jesus refuses political complacency, political simplicity, and political primacy.  We should too, and that is the approach I prefer, except when I don't.

I will say that if we are going to go down the road outlined in the video, there is a corollary to what was stated.  When I hear someone like Jackson make those type of statements, I am not inclined to back down from the fight.  I am inclined to double down.  The question is, should I.
 
Below is a near verbatim transcript of Jackson's video with a few changes.  The best way to read what follows is while listening to the video.  Judge for yourself if what either Jackson or I said ring true.

Reflecting on Trayvon's tragedy and our ongoing need for racial reconciliation

In our national racial dialog, I think we need to distinguish between the systemics of injustice and the facts in any given case.  Yesterday, CNN published some new allegations on the Trayvon tragedy which raised some questions for me. (Note I did not say new facts.  We just don't know what all the facts are.)

In the systemics of prejudice and injustice we have so far to go.  Those that know me, know I am deeply concerned about injustice and prejudice...  individually and collectively.  The reaction to the Trayvon tragedy is completely understandable.  Everyday, children of color go missing, and too often the media doesn't give a damn, something in contrast to when a cheerleaderesq white girl disappears. This time the media did give it some attention, and that is a good thing.

But the fact is, we just don't know exactly what actually happened on the evening of February 26.  And until we do, a rush to judgement doesn't advance our national dialog on race.  Too many black men have been falsely accused for us to forget the consequences of a rush to judgement.

However, what we do know is that typically, the death of a white child is given a significant amount of resources, whereas in this case it appears the police did not give the case the investigative resources it deserved, begging the question, why?

If they did indeed fail to give Trayvon's death the attention it deserved, that is a grave injustice.  And one that ought to be protested vehemently.  Trayvon was not killed because he was wearing a hoodie.

However, acknowledging our collective failure to achieve an equal common good for all.  Acknowledging that we are not doing enough to solve this problem.  Acknowledging that police do not investigate every homicide equally and that racial stereotypes play a role.  None-the-less we have to stop and ask, is that what happened here?  I'm not sure we can know that; yet.

When we do, as the prophet Micah said, may there be justice, mercy, and humility.  And if the facts support the outrage, may there be protests.  May the perpetrators both of the actions and the inactions be brought to justice.  But more importantly, may there be solutions and dialog, honesty and truth telling, forgiveness and efforts toward our ongoing need for racial reconciliation; for reconciliation is not just an event, but an ongoing life-long process.

Vanderbilt and the Catholic Church - Organizations limiting religious freedom

Introduction
Father Araujo suggests in his piece, What is Freedom, that the distinction between who is pursuing a self-serving course of action and who is pursuing the other-serving course of action is clear. I agree. The Catholic Churches decision to limit the religious freedom of the people it serves as an employer when it acts as public employer is perceived by many as being self-serving. The freedom that faith affiliated public institutions want in relationship to the federal government is the same freedom they are denying to their employees who have a different faith or no faith at all. While freedom of religion is paramount, and I will argue on behalf of religious freedom momentarily, public employers that hire a plurality of people with unique views have unique responsibilities to their employees. In this pluralistic context, religious views should not allow the employer to impinge on the freedom, often the religious freedom of the employee. While people should have the freedom to associate, that freedom should not hinder the freedom of people in the minority at public institutions or private organizations that are free and open to the public, such as a faith based public hospitals.

To be clear, I would like to draw a sharp distinction between distinctively faith-based organizations such as churches, and those that choose to be open to the public. When they become public employers, employing people of a variety of faiths or no faith at all, public organization take on special responsibilities to the community and to individuals, among them, the responsibility not to infringe on the liberty of their employees.

Vanderbilt and the Catholic Church
A similar example of this can be seen in the recent Vanderbilt University case. In that case, a private organization that is open to the public, has taken the position that no student organization can discriminate against any student that wants to be a member of, or even an officer of a student organization, based on race, religion, sex, etc… The result is that it is possible for a person of Jewish faith to hold the position of treasurer in an Islamic affiliated organization, or an atheist to head a Christian organization. As a result, the Christian Legal Society (CLS) has advocated against this position because their constitution states that one has to be a Christian to be an officer of the Christian Legal Society.

The irony is that Vanderbilt’s position corresponds to the Catholic Churches position.