October 30, 2020

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. : )

September 11, 2020

Appropriate

fuck appropriate
appropriate is for niceties
but no niceties are here

here in this place
a place broken and hurting
hurt people hurting others
 
others striving ceaselessly
ceaseless in their efforts for more
more money more broken more power
 
power to kill and destroy
destroyed, they destroy others
because these others failed to be appropriate
 
but the other appropriately turns to honesty
honesty and truth
truth like it is with and without blemishes
 
blemishes inevitably leading toward replenishment
the replenished now seeking to heal
healing and giving life
 
life more abundant than ever before
before time. runs. out.
fuck

April 29, 2016

Rain

Rain interrupts us.
Slows us down and causes pause.
Plays with perception.

April 17, 2016

Tire store ambience

The stains run down the front of the garbage can, suggesting a stench. Next to the can sits an untouchable carafe, while on the television, a bear dismembers a salmon.

The "free" wifi doesn't work, and the extension cord is covered in paint.

But the tires smell wonderful. And the marketing images evoke a sense of confidence.

At an auto-body shop we wouldn't have it any other way.

April 10, 2016

Truth Like Water



put away old things
then rediscover and take
back what was before

chase truth like water.
poet comedians before
liars for hire

March 26, 2016

Holy Saturday

holy Saturday
dawns with indifference for most
myself included

we sit in the cold
next to a fire warmed
freezing and burned

our back to the one
our face to the other one
unsure which is which

we long for the holy
and profanity in spades
unsure which is which

God from Nazareth
have mercy me a sinner
lost and searching here

March 03, 2016

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.