Archive for the ‘Law’ Category
Here’s a fun little thought experiment demonstrating the fundamental arbitrariness of the electoral college: Had two state borders been drawn just a little bit differently, shifting a total of four counties from one state to another, Hillary Clinton would have won the election.
Take a look at the imaginary map above, which comes from an nifty online tool called Redraw the States. It was created by Kevin Hayes Wilson, a mathematician and data scientist working in computer science education.
This map moves Lake County, Ill. to Wisconsin, turning that state blue. It moves Escambia, Santa Rosa and Okaloosa counties from the Florida panhandle to neighboring Alabama. That’s enough to turn Florida blue. With victories in Wisconsin and Florida, Clinton squeaks to victory in the electoral college, 270 to 268.
Exact same votes, slightly different borders, radically different outcome: the capriciousness of the electoral college laid bare.
After the election, a former classmate posed Wilson a question: How stable are the electoral college results under small changes of geography? That is, how much of Donald Trump’s electoral college victory is attributable to the odd quirks of geography or history that are baked into our country’s state and county borders?
The answer, Wilson found, is “quite a lot.”
To arrive at this answer, Wilson built his interactive border-drawing thought experiment. It allows you to select any number of counties and move them to a different state to see how the electoral results would shake out under those borders.
Recall that the electoral college system is mostly winner-take-all (Maine and Nebraska are the exceptions, assigning most of their electors by congressional district). In Illinois, for instance, it does not matter whether Clinton won by 859,000 votes (her actual margin) or just 5,000 votes — in either scenario, all of the state’s electoral votes go to her.
That 859,000-vote margin means Clinton could lose hundreds of thousands of votes and still win Illinois handily. In Lake County, just north of Chicago, Clinton beat Trump by about 70,000 votes. That’s greater than Trump’s winning margin (about 20,000 votes) in the entire state of Wisconsin.
So, if you let Wisconsin annex Lake County, that state’s margin shifts from 20,000 votes in favor of Trump, to 50,000 votes in favor of Clinton. And Clinton still wins Illinois, just by a slightly smaller margin. The net electoral result is that she wins both states.
A similar process is at work in the Florida Panhandle counties. Clinton lost the state by about 120,000 votes. Across the three Panhandle counties of Santa Rosa, Escambia and Okaloosa, Trump’s total margin was 126,000 votes.
Moving those three counties to Alabama does not change the outcome there — Trump won the state handily anyway. But it does mean that Clinton wins Florida by about 6,000 votes, enough to shift all of the state’s electoral votes into her column.
Because we are indulging in electoral fan fiction here, we could go completely hog-wild and posit that state borders do not even need to be contiguous. If that were the case, you’d need to alter only two counties to give the election to Clinton: you could make Los Angeles County, Calif. (Clinton margin: 1.2 million votes) part of Texas to change the Lone Star State blue. . .
Christopher Ingraham has a great article in the Washington Post on the practice of gerrymandering, clearly explained in this short video:
Ingraham’s article is well worth reading because the problem is so prevalent. States that have solved it have taken the drawing of district lines away from the legislature and given it to an independent commission (see end of post). Ingraham’s article begins:
In his State of the Union speech, President Obama called on lawmakers and the public to take a number of steps “to change the system to reflect our better selves” for “a better politics.” The top item on that list was to end partisan gerrymandering: “we have to end the practice of drawing our congressional districts so that politicians can pick their voters, and not the other way around,” Obama said.
In most states, state legislatures draw the district boundaries that determine how many delegates the state sends to the U.S. Congress, as well as the general partisan make-up of that delegation. State legislatures are partisan beasts, and if one party is in control of the process they can draw boundaries to give themselves a numeric advantage over their opponents in Congress. This process is called gerrymandering.
Some state legislatures are more brazen about the process than others. Maryland’s districts, drawn by Democrats, are one particularly egregious example. North Carolina’s, drawn by Republicans, are another. Advocates of reform have proposed various solutions to the problem over the years. In some states, redistricting is put in the hands of an independent commission. In others, lengthy court battles are playing out to draw the districts more fairly.
But a fundamental problem with district-drawing still remains: as long as humans are drawing the lines, there’s a danger of bias and self-interest to creep into the process. There is another way, however: we could simply let computers do the drawing for us.
From a technological standpoint it’s fairly straightforward — a software engineer in Massachusetts named Brian Olson wrote an algorithm to do it in his spare time. As I described it in 2014, Olson’s algorithm creates “optimally compact” equal-population congressional districts in each state, based on 2010 census data. It draws districts that respect the boundaries of census blocks, which are the smallest geographic units used by the Census Bureau. This ensures that the district boundaries reflect actual neighborhoods and don’t, say, cut an arbitrary linethrough somebody’s house.”
To see what this looks like in practice, compare this map of our current congressional districts (top) with one we stitched together from Olson’s output (bottom).
Big difference, isn’t it? You can check out a larger version of the compacted map here. Rather than a confusing snarl of interlocked districts, you have neat, trim boundaries that make intuitive sense. Here are some individual state comparisons I made back in 2014 that let you see some more of the detail: . . .
Some states have solved the problem, as Wikipedia notes:
Rather than allowing more political influence, some states have shifted redistricting authority from politicians and given it to non-partisan redistricting commissions. The states of Washington, Arizona, and California have created standing committees for redistricting following the 2010 census. Rhode Islandand the New Jersey Redistricting Commission have developed ad hoc committees, but developed the past two decennial reapportionments tied to new census data.
The Arizona State Legislature challenged the constitutionality of the use of a non-partisan commission, rather than the legislature, for redistricting. In Arizona State Legislature v. Arizona Independent Redistricting Commission, the US Supreme Court in 2015 upheld the constitutionality of non-partisan commissions.
Note that both red states and blue states have been able to clean up their act on redistricting (though it seems that Arizona did not go quietly).
Wikipedia has an excellent short article devoted to Redistricting Commissions. Well worth reading and pondering and then getting your state moving toward it.
An editorial in the NY Times:
Information saves lives. That’s not a complicated idea, especially when it comes to medical care. A doctor’s educated advice can make all the difference to a patient who may not fully appreciate health or safety risks.
Florida lawmakers seemed to think otherwise. In 2011, they passed a law barring doctors from talking to their patients about one specific topic: whether the patients keep firearms at home. Health care practitioners who violated the gag rule faced fines of up to $10,000 and the possible loss of their medical licenses.
As the United States Court of Appeals for the 11th Circuit held on Thursday in striking down the key parts of the law, this is an obvious violation of the First Amendment, which generally prohibits restrictions on speech based on what’s being said. It was also just plain dumb. Studies show that guns in the home lead to an increased risk of injury and death, and that people who speak to their doctors about gun-storage practices are three times as likely to store guns safely later.
That’s why major medical organizations, including the American Medical Association and the American Academy of Pediatrics, encourage doctors to discuss gun storage and safety with patients, particularly those living with children. It’s no different from talking about other common household hazards like swimming pools, chemicals, and drugs and alcohol.
Florida law itself makes it a misdemeanor to fail to secure firearms in homes where a child can get to them without supervision. When that law was passed in 1989, legislators pointed to the “tragically large number of Florida children” accidentally killed or injured by poorly stored guns, and said that “placing firearms within the reach or easy access of children is irresponsible, encourages such accidents, and should be prohibited.”
The state now claims that its gag rule, which the National Rifle Association strongly supported, was necessary to prevent the violation of patients’ constitutional rights and of their privacy. But the Second Amendment does not “preclude questions about, commentary on, or criticism for the exercise of that right,” the federal appeals court said.
The majority also noted that the state had offered no evidence of doctors improperly disclosing information about patients’ gun ownership. Indeed, . . .
The thinking behind this piece of legislation is foreign to me.
Though he paid an awful price, he must feel a great satisfaction at confronting those whose groundless testimony sent him to prison for those decades. Radley Balko reports in the Washington Post:
Keith Harward was wrongly convicted of a grisly rape and murder and spent more than 33 years in prison. The main evidence against him were alleged bite marks found on the victim. Over the course of two trials, six bite mark analysts said the marks were a match to Harward’s teeth. He was finally cleared by DNA testing last year.
This week, Harward showed up in New Orleans at the annual American Academy of Forensic Sciences conference, where he crashed a panel on bite mark analysis. From the Richmond Times-Dispatch:
“I’m not here to make any friends,” began Harward, who was sent behind bars for rape and murder largely on the erroneous testimony of two forensic dentists, known as forensic odontologists.
At a conference workshop Monday with a number of forensic dentists listening, Harward, his voice rising, said, “This stuff is all crap. It’s bogus. This bite mark stuff is bogus. Why even continue with it? It just doesn’t make sense.”
“Thirty-four years thinking, ‘Wow, what just happened?’” he said of his convictions.
“You’re taking people’s lives in your hands and guessing, ‘Well, I say it is so, so it’s got to be.’ There’s no Gods in here. So why do it?”
He said the only motives he could think of were “money and ego.”
Among those who implicated Harward was Lowell Levine, one of the pioneers of bite mark matching and a longtime evangelist for the practice. Levine first gained some fame after giving bite mark testimony in the trial of serial killer Ted Bundy. He’d later declare that a bite mark identification is as reliable as a fingerprint match. Back in 1995, Levine claimed to have matched the bite marks on the corpse of a 75-year-old Massachusetts woman to Edmund Burke, a local handyman. Burke was arrested and held for 41 days before he was cleared by DNA testing. Levine is a giant figure in forensics. He served as president of the American Board of Forensic Odontology and the American Academy of Forensic Sciences. The latter (at whose conference Harward confronted the bite mark analysts) is one of the largest and most influential professional forensics organizations in the world.
Levine has continued to promote his field. From my 2015 series on bite mark evidence:
In a 2011 interview with CNN’s Anderson Cooper, Levine continued to defend bite mark analysis as “important and viable.” But when Cooper asked if there’s any way bite mark analysis can be reconciled with the scientific method, Levine replied with some candor: “I sure can’t think of it.” Yet Levine has testified countless times in court about his “level of scientific certainty” with respect to bite marks.
As we’ve pointed out here many times before here at The Watch, to date, every scientific panel, commission or study that has reviewed bite mark analysis has found no scientific basis for its methods, conclusions or underlying premises. And yet to date, no court in the United States has upheld a challenge to its admissibility.
Keith Harward, at least, is having none of it. . .
Also read David Frum’s article blogged in the previous post. Ezra Klein writes in Vox:
From 2012 to 2015, Evelyn Farkas served as deputy assistant secretary of defense for Russia, Ukraine, and Eurasia. Since leaving office, she’s been raising the alarm that there was more to the strange relationship between Trumpland and Russia than the public knew. Maybe even much more. This week, she was proven right.
We spoke Wednesday, and the relief was evident in her voice. Far from being concerned over the new revelations, she’s comforted that the ties are finally being made public and broad pressure is finally being applied for more investigations. “I didn’t think it would happen this fast,” she says.
The investigation we need, Farkas continues, is the equivalent of running “a security clearance on the president.” The core question is, “Are you susceptible to blackmail from a foreign entity or individual?”
Farkas, who served as the executive director of the Commission on the Prevention of Weapons of Mass Destruction Proliferation and Terrorism, thinks Congress needs to create an independent, bipartisan commission to investigate Russia’s ties to the Trump administration and role in the election. In this interview, which is edited for length and clarity, she explains why.
Ezra Klein: What’s your level of alarm after the resignation of Michael Flynn?
Evelyn Farkas:It’s lower than it’s been since the summer, when I was first made aware of all this stuff. I’m like, finally, everybody else sees it! Seriously.
The reason I was so upset last summer was that I was getting winks and hints from inside that there was something really wrong here. I was agitated because I knew the Clinton campaign and the world didn’t know. But I didn’t think it would happen this fast. I didn’t think Flynn would survive a year, but I thought it would be most of the year.
The fact that Flynn is gone is constructive from the perspective of US foreign policy. He was getting it wrong on combating terrorism and Russia. So I feel relieved that he will not be whispering his policy prescriptions in the president’s ear.
On the bigger issue, the intelligence community, the bureaucracy, patriotic Americans, and some members of Congress are making it impossible for the White House to sweep whatever they are trying to hide under the rug. And the White House is clearly trying to hide something, or the president would have said, on day one, that he would support the investigations that began under his predecessor.
Ezra Klein: The piece of this I keep coming back to is Trump’s own actions. He’s a guy with very few consistent and clear policy positions, particularly on foreign policy. But he has always had very specific, very hard-line pro-Russian policies — questioning NATO, altering the GOP platform to be friendlier to Russia on Ukraine. And he has surrounded himself with staffers like Paul Manafort and Michael Flynn, who are unusually closely tied to Russia. That behavior is what, to me, creates a context that makes these contacts between his associates and Russian intelligence really unnerving.
Evelyn Farkas: It is unusual. His personnel choices line up with his words on Russia. This is the only place where we haven’t seen Trump contradict himself, but we still don’t know exactly what his policy will be. We know he’s inclined to be friendly to Putin, to cooperate with Putin, but he hasn’t articulated specifics.
Ezra Klein: Where does an investigation like this go? What do you think the investigators are looking for? . . .
It’s getting pretty damn explicit and overt.
This one’s important. David Frum (a conservative) writes in the Atlantic:
It’s a rare event when President Trump tweets approvingly of a journalist, but yesterday Eli Lake of Bloomberg View gained that unusual honor.
Thank you to Eli Lake of The Bloomberg View – “The NSA & FBI…should not interfere in our politics…and is” Very serious situation for USA
— Donald J. Trump (@realDonaldTrump) February 15, 2017
Pretty obviously, the president had not actually read the underlying column, which opens with a summary of Trump’s most egregious untruths, to build to the observation: “for a White House that has such a casual and opportunistic relationship with the truth, it’s strange that Flynn’s ‘lie’ to Pence would get him fired.” (Trump also missed Lake’s early-off-the-blocks reporting on Russian responsibility for the DNC and DCCC hacks. )
Yet Lake’s core point has been seized upon by those looking to distract from what Trump himself called “the Russia connection.” Following Donald Trump, the House Oversight Committee’s chairman, Jason Chaffetz, has insisted that it is the leaker, not the leaks, that merits investigation. That line has been adopted by the administration’s favored talkers in the media, led—naturally—by Sean Hannity.
These talkers argue that what we are seeing here is a slow-motion coup d’etat: lawless leaks by politicized intelligence officers aimed at destroying the elected president of the United States.
Here are three reasons to reject this claim:
1) When Russian spies hacked Democratic emails, and then posted those emails via WikiLeaks, the Trump campaign and its friends noisily insisted that it didn’t matter how information came into the public domain, but only whether the information told Americans something important about a would-be president.
“I love WikiLeaks!” said Donald Trump at a rally in Pennsylvania in October. A Republican congressman who had over-enthusiastically tweeted “Thank God for WikiLeaks” explained himself in a more formal statement: While he did not condone illegal activity, he was “thankful the information was out there.” And this was the line certainly from Trump supporters on air and online: The real news was the content of the leak, not the fact of the leak.
Yet in the WikiLeaks instance, the content of the leak was a series of nothingburgers. Maybe the most exciting revelation was that Donna Brazile had shared with the Clinton campaign one of the questions to be posed to Hillary Clinton and Bernie Sanders at a CNN townhall during the Democratic primaries. Now, however, we are dealing with information of truly vital national importance: plausible allegations that a U.S. presidential campaign had contact with a hostile foreign power which had hacked the communications of its political opponents. If there was any coordination, the resulting scandal would blend Watergate with Alger Hiss. The people who “loved WikiLeaks” seem poorly positioned to complain that potentially vastly greater wrongdoing is being brought to light by the same methods they endorsed for their own advantage.
2) If the information about the Trump campaign’s apparent collusion with the Russians were not leaked, it would have been smothered and covered up. Congress refused to act. The Department of Justice has shown zero interest. The president’s occasional remarks about the matter carry all the conviction of O.J. Simpson’s vow to search for the real killers.
What, exactly, were investigators supposed to do with their information if they did not share it with the public? Evidence that close associates of the current president of the United States had contacts with a hostile foreign-intelligence service is not a matter of purely historical interest. It’s not just a law-enforcement matter. The whistle blowers are blowing whistles, at immense professional and legal risk to themselves, because the people in charge of protecting the system against foreign spy penetration are themselves implicated in that penetration.
3) Eli Lake vividly characterized the fate of Michael Flynn as a “political assassination.” It might be more accurate to describe the current struggle as a duel. Well before the latest revelations, Team Trump has unmistakably signaled its intention to purge the intelligence services of people with knowledge of the president’s Russia connection. . .
Evan Halper reports in the LA Times:
ambitious California law intended to help create retirement security for low-income workers is in the crosshairs of the Trump-era Congress, which is moving to block the state and others from launching programs to automatically enroll millions of people in IRA-type savings plans.
The push is one of the most direct confrontations yet with California and other liberal states by a GOP-led Congress emboldened by President Trump’s election.
And it is intensifying the debate about whether conservatives who now control Washington will honor their pledge to respect states’ rights, even when states pursue policies out of step with the Republican agenda.
By targeting the novel “auto IRA”-style programs, congressional Republicans are also provoking one of California’s most visible leaders, state Senate President Pro Tem Kevin de León, the Democrat who championed the policy in California and nationwide and is leading a movement in the Legislature to resist the Trump White House.
The 2016 law being targeted requires employers to enroll 6.8 million California workers who currently have no access to a retirement savings account at work in a state-sponsored plan. Millions more in seven other states that have passed laws similar to California’s would also be enrolled in those states. Many more states are now weighing joining a movement that has been years in the making.
California first took steps toward creating its program in 2012. Other states, including Illinois, have been slowly implementing their own laws, which have been complicated by federal Labor Department rules governing such investment pools.
In its final months, the Obama administration gave states the green light to pursue their vision.
The state laws generally require employers with no retirement plans to automatically invest a small percentage of each worker’s pay in a state-sponsored retirement account. Employers are not required to contribute anything and workers can opt out of the program if they choose.
The first such program was expected to launch this year in Oregon. California and other states were hoping to begin next year.
Now at the urging of the U.S. Chamber of Commerce and a coalition of Wall Street investment firms long opposed to government-sponsored retirement programs that could compete with their own offerings, key Republicans are moving to revoke the federal approval.
“Our nation faces difficult retirement challenges, but more government isn’t the solution,” said a statement from Rep. Tim Walberg (R-Mich.), chairman of a House subcommittee on retirement issues who is taking a lead in the repeal effort.
Walberg and his colleagues are invoking an obscure parliamentary tool that gives Congress a small window to repeal new regulations. It has rarely been used in recent years because any repeal effort would have faced certain veto by President Obama. But under Trump, it is now a potent tool for Republicans to swiftly unwind Obama-era regulations.
“The results of the November election give us an opportunity to go back and correct this,” Aliya Wong, executive director of retirement policy at the U.S. Chamber of Commerce, said of its effort to block California and other states from moving ahead with their programs.
No hearings are required before the full House votes on the repeal of the federal approval, which could happen as soon as next week. . .
It’s really out in the open now, isn’t it? The next step will be fistfights.
And contract reporter? Shouldn’t he be on staff?
In that connection, note the GoFundMe of Pizza for the Newsroom: contribute toward buying pizza for the staff of the NY Times and the Washington Post. I have digital subscriptions to both, and they are fully worth it. And I bought a pizza, too.