Real Political Reform–and Improvement–in Virginia.
A redistricting commission is only the first step. Real, meaningful political reform means placing the interests of the voters before those of incumbents. This means changing legislative terms, using a better electoral system, and looking to enforce the spirit as well as the letter of the Voting Rights Act.
Congress is the Problem–not SCOTUS
Congressional calls to repair the Supreme Court are, at best, the product of myopia and, at worst, outright attempts to distract the public from the dysfunction that characterizes the US Congress. From the Richmond Times: https://richmond.com/opinion/columnists/mark-rush-column-congress-not-the-supreme-court-is-the-problem/article_6cdea361-2f21-5688-85b0-305d24a19f67.html
A Reflection on one of the Red Herrings of the 2020 election Puerto Rico and Packing the Senate
It is too bad that members of both parties have sunk to such a septic level of partisanship. In the wake of the ACB appointment and the election, calls went out for Dems to pack the Senate and the Court. Alas, there is nothing wrong with the Court and Everything Wrong with the Senate (and Congress more generally. More on that in the next blog post) . For now, a comment on disingenuous apportionment politics: https://www.jurist.org/commentary/tag/author-mark-rush/
Honest assessment of the Gerrymandering issue
Thanks to Fox News for publishing my op-ed. The main-streamers don’t want to hear this. But there is a clear, easy solution to the gerrymandering problem.
It would take care of 99% of the problems we now face with blowout or uncompetitive elections, unbeatable incumbents, minority voters with no choice, poor turnout, etc.. But, the so-called reformers are not interested. Incumbents don’t want competitive elections. Consultants and litigants won’t profit from solving the gerrymandering problem. They profit from managing but never quite solving it. So, all involved–incumbents, litigants, consultants, reformers, protect the single-member district instead of militating to get rid of it.
Wanna see a real soution? Check out Fairvote.org. Meanwhile, my piece is available here.
The Law Needs to Catch up to the Cyber World
I don’t blog much. Some would say that’s a good thing. But, after reading Shoshanna Zuboff’s The Age of Surveillance Capitalism, my head has been spinning—almost as much as it spun after I read Cathy O’Neil’s Weapons of Math Destruction. In fact, my head may still be spinning from reading Cathy’s awesome book. Regardless, there is not much I’m going to offer here that goes beyond the exhaustive analysis and discussion that Bryan Alexander and Friends provide on his site here.
But, let me offer these several, unorganized thoughts. First, I think perhaps the best summary of what is my principal quibble with Zuboff’s analysis is that she overlooks the obvious: people are willing to sacrifice privacy in exchange for the many benefits they receive from going online, using apps, etc. Bryan cites Nicholas Carr’s point in his review in the Los Angeles Review of Books:
While Zuboff’s assessment of the costs that people incur under surveillance capitalism is exhaustive, she largely ignores the benefits people receive in return — convenience, customization, savings, entertainment, social connection, and so on. The benefits can’t be dismissed as illusory, and the public can no longer claim ignorance about what’s sacrificed in exchange for them.
But, I agree with this conclusion only to a point. Whether we like it or not, access to the digital world has become almost an unavoidable necessity. Heck, in 2016, the UN declared that web access ought to be regarded as a human right. See how long you can go WITHOUT engaging someone or something online. Even if you take a wad of cash and try to flee to live somewhere near the Arctic Circle, you will probably be scanned driving through a toll booth.
BUT, while the public cannot “claim ignorance about what’s sacrificed,” there is also little question that the sacrifice is made because the web remains a wild west with little in the way of enforceable rules. Private actors—Google, Yahoo!, Facebook, etc., all operate in a digital universe with no Hobbesian leviathan around to keep them in line. Our only recourse is to threaten to abandon one provider or platform for a better deal offered by another. But, seriously…what does Verizon care if you jump ship to Sprint?
The problem as I see it is that right now, the law has not been able to evolve fast enough to be relevant in the digital universe.
For starters, we lack a good legal metaphor for life in the digital world. Let’s start by saying it’s a “market.” Well, OK. That makes sense. We enter markets voluntarily. Markets are public entities full of private actors that have rights. But, those rights are not inviolable. Merchants can’t discriminate—for the most part. Civil Rights law prohibits discriminating on the basis of race, gender, etc. in public accommodations. But, if you play the religion card, you might be able to discriminate against customers you don’t like.
We can leave it to customers to pick and choose the merchants they will support. But, if all the merchants can somehow discriminate against you, the market can be as open as restaurants and hotels were prior to the Civil Rights Acts. Go ahead and boycott. See if the powerful merchants care…
So, merchants are free to operate so long as they abide by market rules against discrimination, monopolies, etc. But what about those privacy rights we willingly (or have no choice but to) sacrifice when we enter the digital world? The powers of surveillance and the permanence of digital footprints make privacy claims much less enforceable in the digital world than in the terrestrial world. In the digital world, we really can’t pretend to be naked emperors. Our enemy is not some truthtelling child. Instead, it is ourselves since we cannot help but be seen… by everyone.
Still, there are two things wrong with this. First, there is no question that it can be argued that we “agree” to sign away our rights every time we click “accept” or, simply, log on to Google. In essence, we contractually agree to fork over our rights. But, there is such a thing as an unconscionable contract. (OK. I ran home to mom and cited Wikipedia there). Zuboff notes in numerous spots that courts have routinely stated that internet users willingly sacrifice their rights and, therefore, unconscionability is not an issue… for now. Restaurant owners used to run segregated lunch counters once upon a time. That came to an end.
But how to come up with a right that can be enforced against cyber giants effectively and efficiently?
Second, our enemy may actually be that truthtelling child or, worse, the malignant teen hacker who is able to blackmail or bully us as Danielle Citron details in Hate Crimes in Cyberspace. To prevent that bullying and blackmail, we need a government with enough cyberpower to track such punks down. Problem is, that’s a lot of cyberpower—enough to dwarf Hobbes’ leviathan and take on the mantle of, say, Orwell’s big brother.
But–do we really want to hand government—any government—that kind of power? Can we generate a legal system that can control cyberbullies and Google without threatening our freedom even more?
This problem is not new. In Federalist 51, James Madison said:
“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”
To ensure the preservation of liberty, the framers of the US Constitution gave the federal government lots of power and then divided that power into a system of checks and balances. That worked well for a 19th century terrestrial nation even of continental scope. But, what version of that can work in cyberspace?
We can’t imagine that until we conceive of a system of laws, rights and powers that matches the scope and powers of cyberactors.
Bryan Alexander concludes his reflections on Zuboff by saying “Looking ahead, I think Zuboff outlines an unfolding politics.” For now, the threats posed by the weaponization of cyberpower are of immeasurable scope. The law needs to catch up to the speed with which that politics is unfolding. It is nowhere close.
Preliminary research on the betrayal of minority voters and the Voting Rights Act in Virginia.
In this short piece, I offer an overview of the devastating impact of majority minority districts on Virginia’s black voters. They have essentially no choice in state legislative elections. This undermines the Voting Rights Act. Single member districts, along with our campaign finance rules favor incumbents so much that competitive elections are virtually nonexistent. This is especially true in majority-minority districts. So, the VRA has been implemented by incumbents in a manner that favors minority incumbents instead of minority voters.
The paper is available at ssrn and at academia.edu: https://www.academia.edu/37104513/The_Voting_Rights_Act_and_the_Debasement_of_Minority_Voting_Rights_in_Virginia_2001-_2015_A_Preliminary_Analysis_update_
Latest Op-ED: Richmond Times: Why a Constitutional Convention is a REALLY Bad Idea
Many thanks to the folk at the RTD and the Scholars Strategy Network for working with me on this.
The threat of a convention is real. The country is perilously close to calling one–and no one seems to notice. This would precipitate chaos. There would be no winners. Read on here: https://www.richmond.com/opinion/their-opinion/guest-columnists/mark-rush-column-the-last-thing-we-need-right-now/article_b4b9459c-49ba-512a-9d21-6e923a926161.html This little cartoon from New York sums it up nicely.
Reading Supreme Court Decisions…and Reading About Them
June has passed. In an annual ritual that marks the beginning of summer, the Supreme Court released its final opinions on gerrymandering, cake decorating, union rights and so forth. The question that looms every year is whether people will read the decisions or read about them.
There is no question that most Court decisions are hardly bedtime reading. They can be long, technical treatises on very arcane or minute questions of law. Few people have actually read from beginning to end. Accordingly, it is vitally important to trust those in the media who would tell us what the decisions mean. Sadly, the media frequently lets us down. As a result, the newsreading public are misled and political discourse suffers.
A clear example of this occurred this term. In response to the Supreme Court’s decision in Sessions v. Dimaya, press and media outlets proclaimed that President Trump’s deportation program had been stymied by his most recent appointment to the Court, David Gorsuch.
Nothing could be further from the truth.
In fact, the most amazing (and disheartening) aspect of the Dimaya decision was the extent to which media outlets across nations and the political spectrum misleadingly hailed the decision as a defeat for Trump. No matter where you looked—the Guardian, Politico, the Washington Post, the National Review…the list goes on—it seemed that rump had suffered a defeat. The Weekly Standard did get the decision right. It seems, however, that few others took the time to read the Court’s—and particularly, Gorsuch’s—words.
It is true that the Court struck down part of the Immigration and Nationality Act (INA) because its text was too vague. It is therefore true that it overturned the decision of an immigration judge to deport James Dimaya despite his commission of several felonies. Finally, it is true that Justice Gorsuch joined a five-vote majority to render the decision. But, neither Gorsuch, nor Justice Kagan (who wrote the opinion) spoke out against the president’s deportation program.
Instead, the real target of this decision was Congress. The Court chastised Congress for writing a law that was so vague that judges were left to their own devices to decide whether a particular crime “involves conduct that presents a serious potential risk of physical injury to another.” Gorsuch and Kagan agreed that, depending on the jurist, virtually any crime could meet this definition. As a result, they based their conclusions on an earlier decision in which Justice Scalia came to the same conclusion: vague laws such as this violate Due Process as well as Separation of Powers.
They threaten Due Process because no one can really know what the law means. This is a formula for arbitrary government. They violate Separation of Powers because they invite judges and bureaucrats to do the work that Congress should have done when it writes a law: use clear language to guide those who must interpret and apply the law.
In fact, Gorsuch took pains to emphasize the limits of the decision. “Vagueness doctrine,” he said, “represents a procedural, not a substantive demand.” As a result, the legislature may act “toward any end it wishes” so long as it does so “with enough clarity that reasonable people can know what is required of them and judges can apply the law consistent with their limited office.” Accordingly, the Court cast no judgment on the deportation agenda; it simply asked Congress to do its job the way any accountable branch of the government should.
In the end, it was a misrepresentation to say that the Court challenged the President. The Court emphasized the importance of clear language so that those who read laws can understand and interpret them accurately. Those who misleadingly suggested that the Dimaya decision was about Trump might do well to read the decision carefully. They would be reminded of the importance of nonarbitrary government and the responsibility of the press to inform citizens accurately so that they can hold the government accountable.
The Supreme Court got it Right on Gerrymandering
That title is not a popular way to start a piece on the Supreme Court or gerrymandering. But, despite the torrent of outrage flowing through the press and cyberworld, I’m taking a contrarian view and suggesting that the Court got it right.
The Wisconsin redistricting case, Gill v. Whitford, hinged on the utility of a new measure of partisan fairness called the “efficiency gap.” It was created by Nicholas Stephanopoulos and Eric McGhee as a way to measure and compare the number of “wasted votes” cast for each political party in state legislative or congressional elections. The efficiency gap has many merits. It is simple, easy to explain and understand and easily applied to election results. It also does not get to the heart of the problem of gerrymandering.
The Court pointed out that the efficiency gap is an aggregate measure. It fails, therefore, to take into account the conditions in particular legislative districts. In some cases, votes may be wasted because voters are indeed “packed” into districts where they comprise an overwhelming majority. In others, they may be cracked among several districts so that they can never elect a candidate of their choice. Both of these practices were employed at the expense of minority voters during one of its darker periods of racial discrimination.
But, partisan votes are different. In some cases, it may appear that votes are wasted because an incumbent is so popular that she scares off any partisan opposition. Alternatively, it may be the case that a party organization is so decrepit that it cannot field a viable opposition candidate. In some cases, it is simply not possible to draw a competitive district where votes are not wasted. In Virginia, for example, it is almost impossible to draw a majority-minority district that comports with the Voting Rights Act and that is competitive. Simply put, there is little to be gained in running a Republican candidate in a district that is designed to ensure that a minority candidate (who is also most likely to be a Democrat) is elected. As a result, the notion of “wasted votes” really is not helpful in the analysis of gerrymandering because one person’s wasted vote is another’s endorsement of a popular candidate.
Furthermore, the efficiency gap tells us little about the motivations that inform those who draw district lines. A legislative district map that meets all notions of aesthetics can have the same efficiency gap measure as a map that looks like a Rorschach test. Simply aggregating votes across a state does not tell us whether and how the organization of the electorate contributes to or against an unfair electoral system.
In the end, the Supreme Court has told lawyers and academics to do their homework better. Statewide measures of vote counts are simplistic and ignore important details about how voters vote. We are not a bunch of ciphers that enter the polls on Election Day and automatically pull the Democratic or Republican lever. We think about who the candidates are and how candidates that bear the same party label can differ radically in their positions on the issues. Accordingly, a vote may be in favor of one candidate or against another. It is therefore nonsensical to compare partisan votes cast in one legislative district to those cast in another.
In challenging lawyers and political scientists to undertake much more extensive analysis of how voters vote in our electoral system, the Court also invited them to prove that gerrymandering punishes voters because of their “association” (through casting a vote) with one party or the other. But, in our electoral system where we divided voters among districts in which they can choose among a limited slate of candidates, this will be an impossible task. One’s “association” with a party will depend on who the party’s candidate is—and vice versa. So long as we continue to use the antiquated single-member district system of elections, it will be impossible to tell whether a partisan vote is for or against a party or a candidate because we force voters to choose artificially between limited Election Day options.
If we really want to stop—or at least curtail—gerrymandering, we should use the Court’s decision to enact meaningful electoral reform. A switch to ranked choice voting (as Maine used in its recent election) will give voters much more meaningful choices on Election Day and handcuff those who would look to gerrymander the electoral system. The Court has invited Americans to improve the electoral choices. Will we accept and put an end to gerrymandering?