Month: November 2020

 

Yesterday was a big step forward for drug legalization, as voters in four states approved referendum initiatives to legalize recreational marijuana. That includes Arizona, New Jersey, Montana, and South Dakota. Mississippi voters approved more limited initiatives legalizing medical marijuana. All but the South Dakota measure passed by large double-digit margins, and even in South Dakota legalization prevailed by a solid 6-7 points. It’s particularly notable that legalization prevailed so easily in deep-red Montana and South Dakota, and in the red/trending purple state of Arizona.

Yesterday’s victories build on previous successes for marijuana legalization over the last several election cycles, including in 2018. Once the New Jersey state legislature passes implementing legislation for Question 1, there will be a total of 1t states where recreational marijuana is legal (plus the District of Columbia), covering one-third of the American population.

The state of Oregon went further by becoming the first state to decriminalize noncommercial possession of virtually all previously illegal drugs. Measure 110 also passed by a large margin (58-41). Decriminalization is not the same thing as full legalization. Still, it is a major step forward. If it catches on in other states, it could mark the beginning of the end of the entire War on Drugs, which severely undermines liberty, threatens our constitutional rights, and greatly harms the poor and minorities.

Marijuana possession, of course, still remains illegal under federal law. But that law is increasingly difficult to enforce without state cooperation. Moreover, the growing momentum for legalization might finally persuade Congress and whoever ultimately wins the presidential election to repeal federal prohibition.

In the meantime, those interested in these issues should consult co-blogger Jonathan Adler’s excellent new book, Marijuana Federalism. As Jonathan and other contributors to that volume show, legalization at the state level has had a significant impact, even though it has not—yet—led to the total end of the War on Weed.

 

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Donald Trump’s angry, rambling, incoherent, and boastful Election Night speech presents a familiar puzzle: Does the president sincerely believe the weird stuff he says, or is it all part of a clever populist strategy? The distinction should matter to journalists, because it is the difference between a lie and a delusion. By “delusion” I do not mean to imply a psychiatric diagnosis—just the common human tendency to believe things that are not true when they fit one’s self-image or preexisting opinions.

While everyone is prone to that temptation, Trump rarely seems to resist it. If a state’s early election returns show him behind but he eventually wins, as happened in Florida last night, it is only because it took time for voters’ love of him to be revealed. But when Trump has an initial advantage that disappears as more votes are counted, he concludes that “a fraud” has been perpetrated on “the American public.”

For Trump, the ordinary ups and downs of Election Night are immediate cause for suspicion, except when they favor him. “We were getting ready for a big celebration, we were winning everything, and all of a sudden, it was just called off,” he said. “We won states. And all of a sudden I said, ‘What happened to the election? It’s off.’ And we have all these announcers saying, ‘What happened?’ And then they said, ‘Oh.'”

Trump’s explanation: “You know what happened? They knew they couldn’t win, so they said, ‘Let’s go to court.'”

As is frequently the case with Trump, it is not exactly clear what he was talking about. But it seems he was referring to Democrats’ support for expanding mail-in voting, which Trump has been attacking as inherently fraudulent (except in Florida!) for months. “I’ve been saying this from the day I heard they were going to send out tens of millions of ballots,” he said. “Either they were going to win, or if they didn’t win, they’ll take us to court.”

When Democrats challenge voting procedures, in Trump’s view, they are trying to “disenfranchise” his supporters. When Republicans challenge voting procedures, they are trying to protect the integrity of the electoral process, even when they are seeking to invalidate ballots that people cast in good faith based on the rules announced by government officials.

Likewise, when Democrats “go to court,” it is only because they know “they couldn’t win” otherwise. When Republicans go to court, as Trump said he will do if the election does not turn out the way he wants, they are preserving democracy.

This kind of partisan hypocrisy goes both ways. Both major parties can be expected to scramble for whatever advantage they can get, while impugning the other side’s motives and presenting their own as purely in the public interest. But Trump elevates that tradition to a new level: He routinely and recklessly accuses Democrats of criminal activity as well as sneaky legal maneuvers.

“We did win this election,” Trump declared. “So our goal now is to ensure the integrity for the good of this nation. This is a very big moment. This is a major fraud in our nation. We want the law to be used in a proper manner. So we’ll be going to the U.S. Supreme Court. We want all voting to stop.”

At that point, of course, voting had stopped. It was the counting that continued, which is how elections work. If the delay in declaring a winner is longer than usual this year, “a major fraud” is hardly the most parsimonious explanation, given the closeness of the race,  historically high voter turnout, and a surge in mail-in voting during the COVID-19 pandemic—factors that were expected to lengthen the wait.

“We don’t want them to find any ballots at four o’clock in the morning and add them to the list,” Trump said. “OK? It’s a very sad moment. To me this is a very sad moment, and we will win this. And as far as I’m concerned, we already have won it.”

Trump continued that theme on Twitter this morning: “Last night I was leading, often solidly, in many key States, in almost all instances Democrat run & controlled. Then, one by one, they started to magically disappear as surprise ballot dumps were counted. VERY STRANGE, and the ‘pollsters’ got it completely & historically wrong!”

Twitter attached a warning to that post: “Some or all of the content shared in this Tweet is disputed and might be misleading about an election or other civic process.” But even without the company’s pious pronouncement, any mildly skeptical person would recognize that Trump’s conspiracy theory has no basis in fact.

Last night, for example, Trump claimed “we won” in Michigan because he was ahead of Joe Biden by “107,000 votes” with 81 percent of ballots counted. But that still left hundreds of thousands of ballots that could shift the advantage to Biden. Likewise in Pennsylvania, where Trump claimed “we’re winning” by “a tremendous amount.”

As I write, Trump is ahead by more than 460,000 votes in Pennsylvania, but more than a third of the ballots have yet to be counted. If mail-in ballots favor Biden—a partisan tilt fostered by Trump’s unfounded scaremongering about this voting method—Biden could still end up winning the state’s electoral votes.

Biden is beating Trump by just 45,000 votes in Michigan, with more than 200,000 ballots left to be counted. Would Biden be justified in demanding that the count stop now, while he is ahead?

“They are finding Biden votes all over the place—in Pennsylvania, Wisconsin, and Michigan,” Trump complained today. “So bad for our Country!” To which Rep. Justin Amash (L–Mich.) dryly replied: “It’s called an election.”

So we come back to the question we started with: Can Trump really be this clueless? After nearly four years of this president’s self-flattering nonsense, I am beginning to suspect the answer is yes.

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The Supreme Court this morning spent two hours debating whether the city of Philadelphia can decline to contract with a Catholic organization to place foster children with families if that organization holds religious objections to allowing same-sex couples to participate.

The complicated case pits the general application of discrimination laws against the boundaries of religious liberty. Based on the lines of questioning today, it’s not entirely clear where the Court’s justices will fall.

The case, Fulton v. Philadelphia, revolves around Catholic Social Services (CSS), which contracts with the city to provide a number of child welfare services. Because of religious objections to same-sex marriage recognition, it does not want to screen or certify gay couples as potential foster families and does not place children with them. This violates Philadelphia’s anti-discrimination laws, and in 2018, the city stopped contracting CSS for this service, though to this date apparently no gay couples have actually come to CSS looking to foster kids.

CSS and foster parents connected to CSS have sued for discrimination, claiming that they are exercising their right to religious expression and demanding that Philadelphia restore the contract. The City of Philadelphia argues that this is not a case of religious discrimination—the rules are being applied neutrally and without animosity toward CSS’s religious beliefs. The city’s lawyers point out that CSS is still getting $26 million in annual funding from Philadelphia for the child services they provide. They’ve only cut off the placement contract.

The questioning today probed many different areas about the business relationship between CSS and Philadelphia. Several justices (including newly seated Justice Amy Coney Barrett) questioned whether CSS was a contractor with the city (giving the city more power to set guidelines) or a licensed private partner who provided a service to the city.

That may seem like a strange place to take the discussion, but the reason became clear in Barrett’s line of questioning toward Neal Katyal, the attorney for Philadelphia. The city controls who is permitted to participate in this process of certifying foster parents, which led Barrett to hypothesize a situation where the government takes control of all hospitals but then contracts out with private parties to operate the hospitals. Could the state then say, “You can get exemptions from some medical procedures, but every hospital must perform abortions?”

Katyal’s response was that a government takeover of all hospitals would raise any number of constitutional issues and couldn’t really address the hypothetical. He did attempt to reject the characterization of a city-run foster parent monopoly by arguing that this case involves only those children who are wards of the state. For those children, the government has a compelling interest in establishing and enforcing neutral guidelines about who qualifies as appropriate parents, including same-sex couples.

Much was made of the fact that CSS’s refusal to accommodate same-sex couples does not actually stop these couples from becoming foster parents. CSS is just one of 30 agencies working with foster children in Philadelphia and nobody could find any examples of same-sex parents in Philadelphia being unable to actually become foster parents.

But the city’s attorneys argued that if Philadelphia allowed CSS to cite religious belief for an exemption from its anti-discrimination law, then there could potentially be a domino effect of religious organizations seeking exemptions to discriminate for a whole host of reasons, including the possibility that they’d turn away couples of different faiths. The justices and the lawyers all seemed to agree that the Supreme Court would reject any attempt to use religion as an excuse to deny adoption opportunities to interracial couples. But now the court must contend with real religious conflicts raised by recent Supreme Court decisions mandating same-sex marriage recognition and forbidding workplace discrimination against gay and trans people, and several justices noted back in those rulings this conflict was coming. How do these sincerely held religious convictions intersect with government contract rules?

Justices Samuel Alito and Brett Kavanaugh were both most vocally on CSS’s side. Alito said this dispute stems from Philadelphia not being able to “stand the message that the Archdiocese and CSS are sending” by not wanting to work with same-sex couples. Kavanaugh accused the city of “looking for a fight” and failing to consider a balance between religious rights and same-sex marriage rights with the way they’re enforcing the anti-discrimination law. Katyal resisted this characterization, noting that they had won in the lower courts and that the attorneys representing CSS are forcing the fight.

Toward the end of oral arguments, Justice Sonia Sotomayor asked attorney Jeff Fisher, who was representing nonprofits who agree with the city’s position, if there was a possible compromise here—a strong suggestion the justices really don’t want to establish a big precedent, given the complicated nature of this case and foster care and the different policies that come into play when screening parents versus matching children to homes. Fisher noted that the city was not asking the CSS to endorse same-sex marriage when it certifies that a same-sex couple meets the city’s standards for becoming foster parents and can include a disclaimer as such.

Lori Windham, representing CSS and foster parent Sharonell Fulton on behalf of the Becket Fund for Religious Liberty, is pushing the Supreme Court to reconsider the 1990 precedent Employment Division v. Smith, which held that the government is generally not violating a person’s free exercise clause by enforcing laws as long as such laws are neutrally applied.

While the Smith decision, written by Justice Antonin Scalia, was discussed throughout today’s hearing, there didn’t really seem to be a lot of interest in going so far as to reverse the ruling. It is, however, clear that several justices, including Barrett, are concerned that this case could end up having wider implications for religious liberty regardless of which way they rule. That suggests the possibility of a very specific, narrow ruling and not some new precedent.

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The most expensive ballot initiative campaign in Massachusetts history ended with a resounding victory for property rights as voters approved the so-called “right-to-repair” ballot initiative.

With more than 96 percent of precincts reporting by Wednesday afternoon, nearly 75 percent of voters had approved Massachusetts Question 1. The initiative’s passage means that car manufacturers will be required to provide vehicle diagnostic data to consumers and independent mechanic shops. Voters in the state approved a similar right-to-repair ballot measure in 2012, but this year’s election closes a loophole that auto manufacturers had been using to skirt the requirements established by that earlier vote.

The state’s existing law—which became the basis for new national standards implemented by the auto industry in 2014—required that vehicle diagnostic data was made available via an open platform. In short, that means that if you own a Toyota, you don’t have to go to a Toyota-affiliated repair shop to find out why your “check engine” light is on. Any repair shop can plug a device into any car and read the data.

But the earlier law exempted wireless data transmitted via a car’s telematics system. Increasingly, car manufacturers have been relying on telematics to transmit crucial data, potentially leaving independent repair shops in the dark. The new ballot initiative closes that loophole and requires wirelessly transmitted data to fall under the same open platform rules starting in 2022.

What might seem like a technical adjustment to a pretty uncontroversial rule, however, turned into a major political battle in the state. The Massachusetts Right To Repair Coalition, a campaign group formed by independent mechanics and national car repair chains like Auto Zone and O’Reilly Auto Parts, dumped more than $24 million into the race. The Coalition for Safe and Secure Data, a group backed by Ford, General Motors, Toyota, and other car manufacturers, spent more than $26 million opposing the initiative.

Much of the campaign centered around sensational accusations that the initiative’s passage would allow cars to be remotely hacked for nefarious reasons. Even the National Highway Traffic Safety Administration waded into the fight, warning in a letter to lawmakers in July that Question 1’s passage would create “an incredible amount of danger.”

Even though there are “some genuine concerns that increasing access to a car’s data could set the platform up for cybersecurity vulnerabilities,” Reason’s Scott Shackford explained last month, “that’s an argument about being careful with technological development, not an excuse for depriving consumers of access to the data produced by the vehicles that they own.”

Consumers should have the right to control the data created by the products they own—and that’s true not only for automobiles. Consider the outcome of this expensive ballot initiative fight in Massachusetts to be one more small victory for freedom on an Election Day where that was an under-the-radar trend.

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