Archive for "civil liberties"
Imagine this: You’re at work one day long after law school has ended. One of your clients comes in for a meeting and asks you to assist him with his latest project: writing the basic rules for his new country. You’re a little skeptical about this because you work in family law, but it’s been a slow week and he’s paying in cash.
A week passes. You’ve dotted your “Is,” crossed your “Ts” and everything looks great. Your client asked for democratically elected leaders, so you gave everyone the right to vote. And that’s what he calls you about, the next day, in a panic, saying, “Well, you know, I’d like to make sure my friends and I stay in power. Can you do that for me?” You now find yourself with two choices: Refuse on ethical grounds and take the money that he owes you, or make the changes because you knew he wasn’t serious to begin with (despite reading that 1,500 law students got together somewhere and bought an island). History shows that our leaders have asked, “how do I stay in power” from the beginning. Current events show us they still do.
There are two, and only two steps to winning an election: (1) convince people to vote for you, and (2) prevent people from voting for your opponent. Step (1) is fairly straightforward. The candidate presents himself (or herself) to the people via TV commercials, in-person appearances, debates, and The View in an effort to convince voters that he (or she) will be a good elected official. When we think of step (2), most of us probably think about attack ads and unsavory former acquaintances that either push candidates out of the race or make voters think twice about the candidate. However, our politicians have been far more creative than that:
- During the Constitutional Convention, the Southern States gave the Northern States a choice: write protections for slavery into the Constitution, or have more than one country. The North took the first choice. Among these protections were the creation of the House of Representatives and the Electoral College. Population determined representation in both. Free persons were counted as one person and slaves as 3/5 of a person. Therefore, any state with slaves received extra votes in the House and the Electoral College. The result: 10 of the first 15 U.S. Presidents were slaveholders. (Which may partially explain why the number of slaves tripled by 1845.)
- After the Civil War and the passage of the Thirteenth and Fourteenth Amendments, the former Confederate States found themselves with zero slaves, and a lot of new citizens. These new citizens outnumbered their former masters in Mississippi, Louisiana, and South Carolina, and made up a sizeable chunk of the citizens in the other Confederate States. The elected officials, legitimately concerned with the possibility that former slaves were likely to vote former slaveholders out of office, invented ways to prevent them from exercising their right to vote. Among these were poll taxes, threats, and intimidation. There were also tests. Voters would be asked questions such as, “how many bubbles are in a bar of soap?” Amazingly, none of the black voters could answer this question correctly, but all of the white voters could.
- Poll taxes were eliminated in 1964. The Voting Rights Act was signed in 1965, ending official race-based discrimination. President Nixon began the “War on Drugs” began in 1970. How does this correlate? The Fourteenth Amendment provides that the right to vote cannot be denied for a citizen over the age of 21, but that it may be denied if the person has participated in a rebellion or “other crime.” The U.S. prison population was near 500,000 in 1970. Today it is 2.2 million. Another 3 million people are on parole, probation, or otherwise subject to the jurisdiction of the penal system. In 2009, 12% (1.6 million) of all arrests were for drug abuse violations. Almost all of these people cannot vote. The prisoners? Disproportionately minority and disproportionately poor. Before 2008, only two states allowed all of their citizens the right to vote: Maine and Vermont. Kentucky and Virginia bar people with felony convictions from voting for life. The rest of the states fall somewhere in the middle.
Since 2008, the Republican Party has made no secret of its desire to see President Obama voted out of office in November. What has been less obvious until recently are some of the steps being taken to accomplish this goal:
- In June 2011, Maine’s Republican-led Legislature passed a measure ending Election Day voting registration. In November, the citizens of Maine voted to overturn the new law.
- Nine states introduced bills to reduce early voting periods. These bills [pdf] became law in Florida, Georgia, Ohio, Tennessee, and West Virginia. Florida’s law specifically ends early voting on the Sunday before the election – a day historically known for its high turnout of Black voters.
- An Arizona law requiring voters to show proof of citizenship was struck down. Kansas Secretary of State Kris Kobach is trying to make a similar measure effective before November. In all, 12 states have introduced proof of citizenship legislation [pdf]. Only two states previously had such laws.
- Florida and Iowa used to end felons voting rights for life. Within the last few years, both restored the voting rights of their former prisoners. Recently, these restorations were overturned, affecting 200,000 former prisoners.
- Before 2011, only two states required photo IDs to vote. However, 34 states introduced legislation requiring photo ID to vote. Seven of these bills are now law. 21 million citizens do not possess a government-issued photo ID.
All of these measures are more likely to affect people voting for Democrats.
Our elected officials tell us that they introduced these bills to protect us against voter fraud. In the words of Stephen Colbert, “What fraud?” Voter fraud happens .00004% of the time. This means that if all 300 million U.S. citizens (including babies) voted, only 12,000 of these votes would be fraudulent.
Voting is not simply a way to choose leaders. Voting provides people a chance to directly impact how their government is run and express an opinion that might not otherwise be heard. Regardless of whether you consider voting a privilege or a right, one thing is clear: our elected officials want to win, and the voices of people who don’t vote, can’t vote, or are less likely to vote simply don’t matter.
My proposition: give all citizens over 18 the right to vote, without restriction. Allow your favorite politicians to take losses if they aren’t good enough at their jobs to get re-elected. Give them little incentive to win by displacing the competition or scaring us with false information. After all, I bet that most of us prefer our elected officials be honest with us rather than having us realize that their logic is insane.
I admit that you don’t have to go along with my proposition. But, you can petition your elected officials on the state and federal level, and ask them to consider ways to make sure the 2012 election is as fair as possible. For example:
- Don’t discriminate against equally valid forms of ID. The Texas ID law makes concealed carry permits acceptable, but student IDs unacceptable. Both are government issued IDs (at least in the case of public schools). However, the students are more likely to vote Democrat and the gun carriers are more likely to vote Republican, helping one party at the expense of the other.
- Make the proof of citizenship laws go into effect after November. Otherwise, the government is asking its citizens to (1) learn about the law, (2) locate birth certificates and naturalization papers, (3) in the case of married women, change their birth certificates and passports to match the married name, and/or (4) obtain a U.S. passport, which requires several proofs of its own all in nine months! Not only do these actions take time and money (harder to get for poorer people, who generally vote Democratic), only 30% of U.S. citizens have passportsbecause there is no reason to get a passport unless you leave the country.
- If voter fraud is the basis of the new law, request a stronger factual basis for the existence of rampant voter fraud, instead of telling us 31 people in Florida voted fraudulently. After all, the last time we agreed to something with scant evidence, the U.S. military ended up in Iraq for ten years.
Granted, your elected officials may not listen to requests that are against their own interests. Further, you may actually prefer that fewer members of the other party vote because it gives your guy a better chance of winning. (Of course, this means you can’t complain if the party you dislike does the same thing in the future.) But, if you choose to contact your representatives, they will know a potential vote is paying attention to their actions, and that check on their power is what democracy is supposed to be all about anyway.
Alternatively, I just heard of an island for sale…
In the ten years since 9/11, the American government’s willingness to sacrifice civil liberties to preserve security has provoked fierce debate. On September 15, just a few days after nationwide ceremonies commemorated the tenth anniversary of the attacks, a panel of Brooklyn Law School faculty gathered at the Subotnick Center to discuss what freedoms Americans had lost in the war on terror. At the same time, the discussion celebrated the publication of Professor Susan Herman’s new book, Taking Liberties: The War on Terror and the Erosion of American Democracy (Oxford University Press, 2011).
Professor Herman, who is also the president of the American Civil Liberties Union, began the discussion by sharing excerpts from her book, illustrating the dramatic impact this legislation has had on the day-to-day lives of Americans. “We started all this change in law after 9/11 without debate or discussion. There are lots of reasons to ask questions … and now is the time to start doing that.”
Professor Derek Bambauer shared his thoughts on the impact 9/11 has had on the Internet: “The Internet before 9/11 was the domain of Pets.com, and after 9/11 one of WikiLeaks.” And the ripple effect goes far beyond our Internet domains. As Professor Maryellen Fullerton explained, in commenting on a controversial provision in the Patriot Act that outlaws providing “material support” to a terrorist organization, “the standards of material support have defined terrorist organizations so broadly that almost any group may fall into that category.” Prof. Fullerton remarked that regardless of the immense impact these “material support” laws have had on immigration and the funding of non-profit groups worldwide, unfortunately, “Congress has shown no interest in narrowing the law.”
Professor Nelson Tebbe acted as moderator and discussed the effects of anti-terrorist legislation on the free exercise of religion: “How easy is it to tell if government is targeting terrorists or Muslims? … The power of [Professor Herman’s] book is that she shows through stories of real people … how difficult it is to [distinguish] between these two things.”
The well-attended discussion sparked a stimulating conversation between panel members as well as members of the audience. “It was a great mix of perspectives on a topic we’ve already heard so much about,” said Jason Stewart, ’13.
Sean Hymowitz, ’12, asked the panelists to comment on the TSA Secure Flights program. “Is it going to get better? Because I don’t like taking my shoes off,” he said, generating laughs from the audience. Prof. Herman responded by pointing out that she covered that topic in her book, and referred specifically to one story of one twenty-two year old who was interrogated for five hours by a TSA official because he carried Arabic-English flashcards onto the plane.
As the discussion drew to a close, Interim Dean Michael Gerber asked a poignant question: is there any optimistic outlook we can take from the current trend? The panelists looked to one another before Professor Bambauer spoke up: “It’s hard to tell anything but a pessimistic story … but perhaps our lens is not broad enough yet.” To this Professor Herman added, “if we can’t change these laws while we have a former Constitutional Law professor in office… it’s not going to happen. This doesn’t mean change isn’t possible [but] politicians are not going to do it. It’s up to us.”
Listen to a podcast with Prof. Herman about her new book, courtesy of the BLS Library Blog.