OSHA’s Vaccine Mandate Illustrates the Perils of Reflexively Deferring to Government Experts


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When the Supreme Court blocked enforcement of the Biden administration’s vaccinate-or-test rule for private employers last Thursday, the response from the three dissenters was familiar. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan argued that courts should not override the judgment of the government experts who know best how to deal with the COVID-19 pandemic.

The dissenters were right that the courts are not charged with formulating public health policies. But the courts are charged with deciding whether those policies are legal, and they forsake that responsibility when they reflexively defer to politicians and bureaucrats who claim an emergency justifies unprecedented restrictions on freedom.

In this case, the Occupational Safety and Health Administration (OSHA) issued an “emergency temporary standard” (ETS) demanding that companies with 100 or more employees require them to be vaccinated against COVID-19 or wear face masks and submit to weekly virus testing. An ETS allows OSHA to avoid the notice, comment, and hearing requirements of the usual rule-making process, but only if the agency shows that its regulations are “necessary” to protect employees from a “grave danger” in the workplace.

“Courts have not been elected [and] have no epidemiological expertise,” Kagan said during oral arguments on January 7. “Why in the world would courts decide this question?”

As Justice Neil Gorsuch noted then and in his concurring opinion last week, “this question” was “not how to respond to the pandemic, but who holds the power to do so.” Two years into the pandemic, Congress has not addressed the issue of vaccine mandates, except for a December 8 Senate resolution aimed at overturning OSHA’s edict.

In the half-century since it was established, OSHA has never before encouraged or required employers to make vaccination mandatory—a solution that, unlike other workplace safeguards, extends beyond the workplace. And while OSHA usually requires employers to pay for workplace safeguards, its COVID-19 ETS allows them to make employees foot the bill for virus testing, the better to encourage vaccination.

The crux of the legal argument between the majority and the dissenters in this case was the question of when COVID-19 qualifies as a workplace hazard, as opposed to a risk that Americans face throughout the day, which goes beyond OSHA’s statutory mission. While the dissenters were willing to let OSHA define that hazard in general terms, justifying a broad solution covering 84 million employees, the majority thought the agency was obliged to be more specific and discriminating, taking into account the wide variation in risk across industries and workplaces.

The Court confronted a similar issue last August, when it blocked the eviction moratorium that the Centers for Disease Control and Prevention had imposed on landlords across the country. The question was not whether the policy was a wise response to COVID-19 but whether Congress had given the agency the authority it claimed, as required by the separation of powers and the rule of law.

Unlike federal agencies, states have broad authority to protect public health under the “police power” they retained when the Constitution was ratified. But that power has limits, as illustrated by the Supreme Court’s injunctions against pandemic-inspired restrictions on religious gatherings.

As in the OSHA and CDC cases, the issue was not whether the challenged policies were sensible or effective. It was whether they violated the First Amendment by discriminating against religious activities.

Breyer, Sotomayor, and Kagan dissented in all these cases, arguing that the Court lacked the requisite expertise to evaluate policies addressing a public health emergency. “Justices of this Court play a deadly game in second guessing the expert judgment of health officials,” Sotomayor warned when the Court blocked New York’s restrictions on houses of worship in 2020.

“Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area,” the majority conceded in that case. “But even in a pandemic, the Constitution cannot be put away and forgotten.”

© Copyright 2022 by Creators Syndicate Inc.

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Kansas and California Cops Used Civil Forfeiture to Stage Armored Car Heists, Stealing Money Earned by Licensed Marijuana Businesses


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Because the continued federal prohibition of marijuana makes banks and payment processors leery of serving state-licensed cannabis suppliers, many of those businesses rely heavily on cash, which exposes them to a heightened risk of robbery. As a new federal lawsuit shows, that danger is not limited to garden-variety criminals. It includes cops who use federal civil forfeiture laws to steal money earned by state-legal marijuana businesses.

Five times since last May, sheriff’s deputies in Kansas and California have stopped armored cars operated by Empyreal Logistics, a Pennsylvania-based company that serves marijuana businesses and financial institutions that work with them. The cops made off with cash after three of those stops, seizing a total of $1.2 million, but did not issue any citations or file any criminal charges, which are not necessary to confiscate property through civil forfeiture. That process allows police to pad their budgets by seizing assets they allege are connected to criminal activity, even when the owner is never charged, let alone convicted.

Empyreal, which is represented by the Institute for Justice, argues that the seizure of its clients’ money violated state law, federal law, and the U.S. Constitution. In a complaint it filed last Friday in the U.S. District Court for the Central District of California, Empyreal says it is “entitled to protection from highway robberies, regardless of whether they are conducted by criminals or by the Sheriff and federal law-enforcement agencies acting under color of law.”

On May 17, Dickinson County Sheriff’s Deputy Kalen Robinson pulled over one of Empyreal’s vans on Interstate 70, ostensibly because the Colorado tag number was partially obstructed by the license plate frame. Robinson grilled the driver, who explained that she planned to pick up cash from licensed medical marijuana dispensaries in Kansas City, Missouri, the next day, then take it to a credit union in Colorado, which would entail traveling through Kansas again on the same highway. Robinson let the driver proceed on her way without issuing a citation, but the federal Drug Enforcement Administration (DEA) kept an eye on the van the following morning as it visited the Missouri dispensaries.

Later that day, Robinson stopped the van again as it traveled west on Interstate 70, seizing more than $165,000 in cash from its vault. In September, the Justice Department filed a civil forfeiture complaint seeking to keep the money. If the government prevails, the Dickinson County Sheriff’s Department will get up to 80 percent of the loot under the Justice Department’s “equitable sharing” program.

In the affidavit supporting the federal forfeiture complaint, DEA Special Agent Bryson Wheeler noted that “marijuana is a controlled substance and illegal under both federal and Kansas state law.” But Empyreal argues that the DEA’s participation in this scheme ran afoul of the Rohrabacher-Blumenauer Amendment, a spending rider that bars the Justice Department (which includes the DEA and the FBI) from using any of its funds to interfere with the implementation of state laws authorizing the medical use of marijuana. Because the DEA violated that restriction, the company says, it also violated the Fourth Amendment’s ban on unreasonable searches and seizures. And because the seizure was motivated by the prospect of financial gain, the lawsuit says, it violated the Fifth Amendment’s guarantee of due process.

The stops and seizures in California raise additional legal issues, because that state, unlike Kansas, allows the sale of marijuana for medical or recreational use. It also explicitly protects companies like Empyreal from harassment by local or state law enforcement agencies. A 2020 law says a business that “transports cash or financial instruments, or provides other financial services does not commit a crime under any California law…solely by virtue of the fact that the person receiving the benefit of any of those services engages in commercial cannabis activity as a licensee pursuant to this division.” Despite that law, San Bernardino County sheriff’s deputies stopped Empyreal vans three times in November, December, and January, seizing more than $1 million.

On November 16, Sheriff’s Deputy Jonathan Franco pulled over one of the company’s vehicles, supposedly because it was following a tractor-trailer truck too closely. Like Robinson, Franco did not issue any citations. But after the driver told him the van was carrying cash, the lawsuit says, Franco “asked many questions about the nature of Empyreal’s business.” Even though it should have been clear that Empyreal was not violating any state laws, the cops seized about $700,000. The sheriff’s office later told the company’s lawyer the money “was transferred to the FBI for civil forfeiture.”

On December 9, Empyreal says, the same deputies pulled over the same vehicle, driven by the same employee, ostensibly because he “slightly exceeded the speed limit and prematurely activated his turn signal.” But once again, no citation was issued. According to the lawsuit, “the driver’s operation of the Empyreal vehicle was completely lawful.” The company says “the deputies had planned the stop in advance and would have pulled over the driver and the Empyreal vehicle regardless of how carefully or lawfully it was driven.”

The deputies claimed a drug-sniffing dog alerted to the van, which Empyreal says also is not true: “Video footage from the vehicle does not show the dog alert on the vehicle. Instead, it shows the dog is barely interested in the vehicle.”

This time the cops seized about $350,000. The deputies, who were audibly excited about the $700,000 haul, were somewhat disappointed by the relatively small size of the second seizure. Based on an audio recording by the van’s security system, the lawsuit describes this exchange: “One of the deputies said, ‘That’s it?’ and chuckled. He then said: ‘You set the bar too high.’ When another deputy remarked that he thought they’d get ‘a million or two,’ the [first] deputy responded, ‘At least we got over a million'”—apparently referring to the combined take from the two seizures. The FBI later told Empyreal’s lawyer it had also taken possession of the money seized on December 9, pending federal forfeiture proceedings.

From San Bernardino County Sheriff Shannon Dicus’ perspective, involving the feds has clear advantages. Money earned by state-legal marijuana businesses is not subject to forfeiture under California law. Even if it were, law enforcement agencies would be entitled to just 65 percent of the proceeds, compared to as much as 80 percent under federal law. And for cash forfeitures involving $40,000 or more, California requires “clear and convincing evidence,” while federal law says “a preponderance of the evidence” is good enough.

Recognizing the allure of those terms, California legislators have prohibited federal “adoption” of seizures initiated by state or local law enforcement agencies. But that restriction does not cover seizures by anti-drug task forces that include federal as well as local agencies. Empyreal suspects the California stops involved such a task force: the Inland Regional Narcotics Enforcement Team.

Federal participation still implicates the Rohrabacher-Blumenauer Amendment. Empyreal says three of the four businesses whose money it was transporting on November 16 had medical marijuana licenses, while all of the money seized on December 9 came from businesses with such licenses. The company also argues that Dicus, one of the defendants named in the lawsuit, exceeded his own authority by allowing or instructing his deputies to stop, search, and rob the company’s vans without any evidence of state crimes.

The third California stop sheds some light on that strategy. On January 6, the lawsuit says, San Bernardino County sheriff’s deputies stopped an Empyreal driver who was “picking up an order of rolled coin boxes from Empyreal’s vendor, which happens to be located in San Bernardino County, in order to replenish its rolled coin supply.” After the deputies realized that the coins had nothing to do with cannabis, they decided not to seize them. “When the Empyreal driver asked a deputy why Empyreal vehicles were being stopped so frequently,” the company says, “the deputy told him it was ‘political’ but declined to elaborate.”

Whether that response alluded to Dicus’ own motivation or a federal agenda, it certainly does not sound like a reason that would pass muster under the Fourth Amendment. Empyreal argues that “pretextual traffic stops” aimed at supplementing police budgets rather than enforcing state law cannot qualify as “reasonable.”

In addition to the cannabis industry, Empyreal, which operates in 28 states and has more than 200 employees, serves traditional businesses such as restaurants and convenience stores. “Empyreal is proud to provide a professional and secure solution for our customers to safely transport their deposits into the financial system, which increases transparency and makes communities safer by getting cash off the streets,” CEO Deirdra O’Gorman says in a press release. “Because both we and our clients operate completely within the law, we have never had problems until recently. To continue serving our clients, we have no choice but to stand up for our constitutional rights.”

Empyreal has reimbursed its clients for the money seized in Kansas and California, so it is already out $1.2 million, along with the legal cost of contesting the forfeitures. The company says it is trying to avoid further trouble by routing money from marijuana businesses around Kansas and San Bernardino County, which leads to needless extra travel. Empyreal has suspended plans for a “vault and currency processing facility” in Dicus’ jurisdiction. It says it had already invested $100,000 in that project and continues to pay $21,000 a month in rent and utilities for the building. Empyreal says the threat of continued harassment and seizures has cost it clients and endangered the expansion of its business, especially in California.

“What is happening to Empyreal potently illustrates why we call civil forfeiture ‘policing for profit,'” says Institute for Justice attorney Kirby Thomas West. “Law enforcement is trying to take more than a million dollars without charging anyone with a crime. That is absurd and deeply unconstitutional. It is yet another reason why lawmakers need to eliminate civil forfeiture altogether.”

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Have Facebook and Google cornered the market on antitrust troubles?

Just one week of antitrust litigation news shows how much legal turbulence Facebook and Google are facing. Michael Weiner gives us a remarkably compact summary of those issues, from the deeply historical (Facebook’s purchase of Instagram) to the cutting edge of tech (complaints about Oculus self-preferencing). In all, he brings us current on two state AG case, two FTC cases, and one DOJ case against the twin giants of surveillance advertising.

Speaking of litigation, no major new technology has been greeted with more litigation in its infancy than face recognition. So this week we do a long interview with Hoan Ton-That, the CEO of what must be the most controversial tech startup in decades, Clearview AI. We probe deeply into face recognition’s reputation for race and gender bias, and what the company is doing about it. Hoan offers a clear rebuttal to misconceptions about the technology; he is clearly taking the controversy in stride and confident that the technology will overcome efforts to turn it toxic. Meanwhile, I note, the debate is clearing out what would have been formidable competition from the likes of Microsoft, Amazon, and IBM.  If you think face recognition should be banned as racist, sexist, and inaccurate, this interview is worth a listen; it will make you think.

Meanwhile, David Kris notes, rumors of war are rampant on the Russian-Ukrainian border – and in cyberspace. So far, it’s a bit of a phony cyberwar, featuring web defacing and dormant file wipers. But it could blow up at any time, and we may be surprised how much damage can be done with a keyboard.

Speaking of damage done with a keyboard, open source software is showing what can be done without even trying (although at least one developer has in fact been trying pretty hard). Nick Weaver and I dig into Log4j and other messes, and evaluate the White House effort to head off future open source debacles.

David is in charge of good news this week. It looks as though Russia has arrested a bunch of REvil coconspirators, including one person that the White House holds responsible for the Colonial Pipeline attack. It’s surely not a coincidence that this hint of cooperation from Vladimir Putin comes when he’d very much like to have leverage with the Biden administration over Ukraine.

The EU is now firmly committed to cutting itself off from a host of technologies that are offered, often for free, by Silicon Valley. Google Analytics is out, according to Austrian authorities, because it sends pseudonymized data to the U.S. Ironically, this means that the European Parliament has been violating European law. Nick reminds us that Analytics and the Like button aren’t all that could be cut off by this interpretation. Google Translate apparently also depends on transatlantic data flows and could become unavailable in Europe. I offer an incendiary solution to that problem.

End-to-end secure messaging is still under attack, but this week it’s European governments, not the FBI, that are taking the shots. The UK government is planning an ad campaign against end-to-end encryption, and Germany is growling about shutting down Telegram for allowing hate speech. Nick issues a heartfelt complaint about the disingenuity of both sides in the crypto debate.

Speaking of Germans who can’t live up to their reputation for protecting privacy, Nick notes that German police did exactly what Gapple feared, using a coronavirus contact-tracing app to find potential witnesses to an event unrelated to covid-19.

Meanwhile, in another bit of good news, Twitter gets a suitable reward for the woke colonialism that led it to suspend Nigeria’s president from the service for threatening secessionists with war. Instead of the secessionists, President Buhari went to war with Twitter, saying, in effect, “You can’t suspend me, I’m suspending you.”  Twitter has now unconditionally surrendered to the Nigerian government.

Finally, I claim kinship with Joe Rogan as one of the podcasters that left-leaning NGOs and academics hope to censor. My plan is to create a joint defense fund to which Joe and I will each contribute 1% of our podcasting revenues.

Download the 390th Episode (mp3)

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

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The Democratic Party Is the President


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The Reason Roundtable‘s Matt Welch, Katherine Mangu-Ward, Peter Suderman, and Nick Gillespie discuss the new COVID-19 variant and their predictions for 2022.

Discussed in the show:

1:32: Reflections on President Joe Biden’s Atlanta speech and his presidency so far.

31:26: Weekly listener question: My fellow social studies teachers and I have created a media literacy unit for our seventh-graders, but we’re struggling to winnow down the endless topics and skills that fit in this category. We can also tell some stuff is too complex for that age group. So I’m curious what y’all think would be the most important topics or skills to cover in a unit like that?

43:38: Virginia Governor Glenn Youngkin and mask mandates.

50:18: Media recommendations for the week. (And click here for all of the Roundtable‘s media recommendations, ever.)

This week’s links:

Send your questions to roundtable@reason.com. Be sure to include your social media handle and the correct pronunciation of your name.

Today’s sponsors:

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  • This episode is supported by The Long Time Academy, a new podcast about how to be a good ancestor. It’s a show about time, and how we think about time. The Long Time Academy is an audio documentary, but it also includes with practical exercises designed to expand your sense of time and help you be a good ancestor. Search for The Long Time Academy anywhere you listen to podcasts. Life is short. Time is long. The Long Time Academy.

Audio production by Ian Keyser
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Music: “Angeline,” by The Brothers Steve

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Two Years Into the Pandemic, the U.S. Is Still Struggling To Issue Visas


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As the United States first began to tackle COVID-19 in March 2020, cross-border movement suffered. Immigration and travel ground to a halt. Now, nearly two years into the pandemic, issues at U.S. embassies and consulates are still preventing tourists, students, and temporary workers from getting their visas.

Since the beginning of the pandemic, COVID-related closures and staffing issues in responsible agencies have hobbled legal travel and immigration to the U.S. “As of mid-October, 60 percent of consulates remained fully or partially closed to anything other than emergency nonimmigrant visa appointments, and 40 percent are completely closed to non-emergency nonimmigrant visa appointments,” noted Cato Institute immigration research fellow David J. Bier. Bier wrote that only 2 percent of consulates had fully reopened between August and October 2021, despite vaccines being available to all consular officers since May 2021.

Operations are still bleak in 2022. In Toronto, the current wait time for a nonimmigrant visa appointment (excluding visitor and student visas) is 379 days; in Istanbul, 306 days; and in Santiago, 209 days. Wait times for visitor visas are often far worse⁠—running as high as 595 days in Istanbul, 521 days in Mexico City, 598 days in Manila, and available only in emergency cases in Mumbai, among other cities.

Though the U.S. reopened its borders to certain travelers in November 2021, limited visa processing has kept many visa holders trapped in the U.S, fearing that they may not be allowed to reenter the country if they return home to renew their visas. Foreign citizens who hold nonimmigrant U.S. visas may renew their employment authorizations from American soil, but must renew their visas from abroad.

“People have been afraid to travel because they know that if they leave, and they don’t have a current visa, that they could be stuck for months on end, almost indefinitely, without being able to get back into the U.S.,” immigration lawyer Greg Siskind told Roll Call in December. “I’m still advising people: Don’t travel, unless you’re prepared to be working remotely for a year.”

On December 22, Reps. Peter Meijer (R–Mich.) and Darren Soto (D–Fla.) penned a letter calling on the Biden administration to fully restore visa processing to pre-pandemic levels. An additional 86 members of Congress joined Meijer and Soto in condemning delays for seasonal and short-term workers, as well as those waiting on tourist visas.

“Limited visa processing capacity and extended wait-times are a legacy of measures taken in the early days of the pandemic that are no longer appropriate or necessary as testing and vaccines become more widely available,” wrote the lawmakers. As of the letter’s writing in late December, the lawmakers noted that 60 percent of U.S. embassies and consulates were partially or completely closed for visa processing. “Just 95 of 237 visa processing sites [were] fully operational,” according to The Detroit News.

Permanent visa applicants aren’t faring much better. This month, the State Department reported a current backlog of 439,373 immigrant visa applicants whose cases were “documentarily complete” and still needed visa appointments, having only scheduled 26,605 appointments for January. The State Department notes that in 2019, “60,866 applicants were pending the scheduling of an interview each month” on average. In December 2021, U.S. Citizenship and Immigration Services was found to have a backlog of 3.8 million cases.

In an attempt to alleviate current visa processing issues, the State Department announced last month that it would waive in-person interviews for nearly a dozen visa categories, including those for “students, temporary agricultural and non-agricultural workers, student exchange visitors…and entertainers.” The same week, the Department of Homeland Security said that it would add 20,000 H-2B visas to the cap for fiscal year 2022⁠—a first-ever supplement to the nonimmigrant nonagricultural worker visa program.

These fixes are important and will help heal some of the many forms of international movement that have suffered during the pandemic. Still, legal immigration to the U.S. has completely cratered, officials continue to lean into long-disproven measures that tie border crossings to COVID spread, and routine visa services have stagnated. With vaccines now widely available and nearly two years of the pandemic behind us, it’s absurd that visa-issuing officials are still using COVID-19 as an excuse for their inefficiencies.

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A Letter From A Current UPenn Law Student In Support Of Amy Wax

Recently, Philadelphia Councilman David Oh wrote a letter urging the University of Pennsylvania to review Professor Amy Wax’s “role with the university.” More recently, PennLaw Dean Ted Ruger announced that he will begin a formal sanction process against Wax. Erich Makarov, a 3L at UPenn who was in Wax’s class, wrote a letter in response to Oh, that also addresses the issues in Ruger’s announcement. Erich asked me to post his letter, which I do here:

Dear Councilman Oh,

I would like to preface my letter to you by saying that I am a second-generation American of Eurasian heritage. My parents are immigrants who escaped a brutal, totalitarian regime and came to this country penniless. I am also currently a law student at the University of Pennsylvania.

I write to you with the humble request that you inquire further into what is really going on at Penn Law and with Professor Wax specifically. You have doubtlessly witnessed the media firestorm that followed Professor Wax’s comments in her interview with Glenn Loury. As a Republican in a place like Philadelphia, you surely realize that media reactions and blue checkmarks on Twitter are not always the best indicator of what is true. Such is the case here. Here is what is definitely true. Professor Wax is provocative. She holds heterodox views. She is not afraid to voice unpopular ideas so long as she honestly believes them to be true. Many of these views are certainly offensive to some people.

But as her former student, I can state without a doubt that Professor Wax’s ultimate goal is the preservation of the principles of ordered liberty and private property upon which this nation was founded. She believes these principles are in mortal danger and under constant assault. She has never advocated for any kind of ethnostate; racial policymaking is the exact opposite of what she supports. Her goal is to make American meritocracy impregnable and prevent the kind of race-based, equity-seeking system that progressives push on the American people. If you watch her entire interview with Professor Loury, you will hear her make several crucial points that are being omitted in the media space.

Professor Wax’s greatest concern is that Asian-Americans overwhelmingly vote for the Democratic Party. As a Republican in Philadelphia, it is hard to imagine that you would not share this concern. The Democratic Party has done more to set back the rights, opportunities, and safety of Asian Americans (both recently and historically), than any political force in American history. But even beyond that, the agenda of the Democratic party is rattling the classical liberal foundations upon which our nation stands. With progressive prosecutors, militantly anti-religious politicians, and an army of young followers that despise genuine free expression, this party makes us unsafe in our own communities, attacks our faith relentlessly, and seeks to punish us for any speech that is deemed politically incorrect.

When Professor Wax sees that Asian-Americans overwhelmingly give their endorsement to this agenda by voting for its creators, she draws a narrow (but natural) conclusion that there is something incompatible about the values of immigrants from Asian countries with the constitutional liberalism she so cherishes. I come to a different conclusion on this issue. I believe that it is the rotting of America’s institutions that has led many people astray. Curricula that train young minds to despise America, popular culture that denigrates all traditional values and extols conformity, and politicians who appeal to base tribal instincts to turn groups against the common good are to blame. All can fall victim to these immense pressures—race isn’t the cause.

But here’s the thing, Professor Loury immediately made this very point and forcefully disagreed with Professor Wax right during the interview. He made a respectful and excellent rebuttal and placed emphasis on how institutions like schools and media are actually culpable for corrupting American ideals rather than racial background. And guess what? By talking it through, Professor Loury actually got Professor Wax to engage with these points and adapt her understanding of the issue. And that is the essence of what is at stake here. It is the ability of two people who hold different, possibly controversial, views to sit down together, speak frankly, and come to a more accurate and less narrow-minded understanding of reality. It is the essence of American democracy and it is the essence of any proper system of higher education.

Professor Wax may say things that make us uncomfortable, but like all of us, she is searching. She is searching for truth, she is searching for ways to build a better society, she is searching for ways to preserve the ideals that made America a place that both my parents and yours wanted to come to. Her ideas are often unorthodox. Heck, her ideas are sometimes incorrect. But is taking her livelihood and ability to share her extensive expertise away from her going to truly help anyone?

Students at Penn who wish to learn from Professor Wax’s expertise in areas like neuroscience and legal remedies tremble at the thought of classmates finding out they are taking her course. People are afraid to be seen walking into her classroom for fear that they will be isolated and vilified. Should they all be deprived of the ability to learn from her, to debate her, to respectfully challenge her in a safe classroom setting? Students at Penn Law can go through their entire three years of law school without even seeing Professor Wax within a mile radius. No one has to take her courses. No one has to read her work or listen to her words. She inhabits the tiny spaces of 14-person elective seminars and YouTube podcasts with niche intellectual audiences. It is no longer even the real presence of Professor Wax that offends students but her mere association with the university. This is no longer about protecting vulnerable students; it’s about sanitizing the public forum to exclude non-progressive views. Radical progressive students wish to gag dissenting thought on campus, and there is not a doubt in my mind that they will not stop at Amy Wax.

Councilman, I understand why you wrote your letter to the University of Pennsylvania. Sometimes, we hear very painful things and we draw the conclusion that people are out to hurt us. We want to stop those people from saying hurtful things. And the flurry of incensed talking heads makes it seem like the whole world has turned against this one woman. There doesn’t seem to be any reason not to condemn her. But as a second-generation American of Eurasian background and of Christian faith, I can assure you that when times really get tough, it won’t be the blue checkmarks and the protesting college students that stand up for your rights, your property, and your safety. Rather, it will be those people who are willing to bear the burden of unpleasant opinions for the sake of higher principles who will be there for you.

We all know that Professor Wax has made uncomfortable observations about Black Americans in the past. Yet, Professor Loury, a Black man, regularly invites Professor Wax on his show to engage in meaningful and civil discourse. He is able to put aside whatever discomfort he feels from Professor Wax’s past words to find common ground wherever it may be. By doing this, Professor Loury embodies the American ideal. I sincerely hope that you can overcome the discomfort in your own heart just as Professor Loury has in his.

One of the core principles of Republicanism and of classical liberalism is that the government should play only a limited role in society. As a representative of the government of Philadelphia, you are urging a private institution to investigate one of its employees, implying strongly that she should be fired. This is a powerful move, and it may have some kind of impact. But is this really the right move? What would our founding fathers think of statesmen pressuring a university to fire a professor over something she said? As a constituent, an American, and a brother in faith, I humbly ask that you reconsider your request to the University of Pennsylvania. Unity that is achieved through silencing those who disagree cannot last.

Respectfully,

Erich Makarov

 

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Police Deaths Skyrocketed the Last 2 Years Because of COVID, Not Crime


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The National Law Enforcement Officers Memorial Fund (NLEOMF) last week released a widely cited report in which it claimed 2021 was the deadliest year for American police officers since 1930. But the data is more complicated than that comparison suggests. 

The report from NLEOMF says that 458 federal, state, tribal and local officers died in the line of duty in 2021. The foundation says this makes 2021 the deadliest year for officers since 1930, when 312 police officers died on the job. Police officer deaths in 2021 were 55 percent higher than 2020’s 295, which was itself significantly higher than 2019’s 89 line-of-duty deaths

What counts as dying in the line of duty? The FBI typically categorizes line-of-duty deaths as either felonious or accidental. Felonious deaths result from crimes against officers, such as stabbing or shooting an officer. Accidental deaths, in most years, are largely composed of car accidents and roadside traffic stop collisions. The National Law Enforcement Officers Memorial Fund has chosen to count COVID-19 deaths because “It has been reported to NLEOMF that these officers have died due to direct exposure to the virus during the commission of their official duties.”

Take out COVID-19, and the numbers are much less jarring. The number of officers killed from felonious and accidental actions in 2019 were 48 and 41, respectively; in 2021, 76 officers died felonious deaths and 56 suffered accidental deaths, with the former number correlating with an increase in the national violent crime rate. Although the felonious death rate rose, these numbers are not unprecedented. In 2011, there were 72 felonious officer deaths. 

Rather than a huge spike in felonious murders, the 2020 and 2021 line-of-duty death numbers are inflated by COVID-19, with 301 fatalities attributed to the virus in 2021 and the 182 in 2020. Coronavirus caused 66 percent of line-of-duty deaths in 2021.  

Line-of-duty deaths provide useful information about the kinds of fatal threats police officers face, but have historically been used by both law enforcement groups and American media to promote the idea that police officers are unique in doing work that is potentially fatal, and thus entitled to legal protections that police critics say prevent accountability and protect bad actors.  

On January 5th, the National Fraternal Order of Police tweeted that law enforcement was under attack, “physically, professionally, and rhetorically” while claiming that 2021 was exceptionally dangerous for police officers. Patrick Yoes, National President of the Fraternal Order of Police, released a statement which stated that the previous year was “the most dangerous for law enforcement due to the increase in violence directed towards law enforcement officers, the nationwide crime crisis fueled by rogue prosecutors, and the ongoing pandemic.”

However, even with the spike in deaths driven by COVID-19, law enforcement remains a relatively safe job compared to much more mundane occupations. Data compiled by the Bureau of Labor Statistics (BLS) finds that the fatal occupational injury rate for law enforcement is lower than for trucking, logging, and roofing, and a number of other industries. 

Whether American police face a greater-than-average threat of contracting COVID-19, the policy response to that problem is widely available and essentially free to the people who need it–officers can get the vaccine, which greatly reduces the likelihood of serious disease and death resulting from COVID-19. However, to use the line-of-duty death data from the National Law Enforcement Officers Memorial Fund to further militarize police or isolate them from accountability would be abusing the numbers to fit an agenda. 

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From today’s decision in Montana Citizens for Right to Work v. Mangan, decided today by Judge Donald Molloy (D. Mont.):

Montana’s Clean Campaign Act … requires … political committees to contemporaneously provide a candidate with a copy of any campaign advertisement published within ten (10) days of an election if that advertisement refers to, but does not endorse, the candidate. The law does not pass constitutional muster….

The statute, in relevant part, provided:

[1] A candidate or a political committee shall at the time specified in subsection (3) provide to candidates listed in subsection (2) any final copy of campaign advertising in print media, in printed material, or by broadcast media that is intended for public distribution in the 10 days prior to an election day unless:
[a] identical material was already published or broadcast; or
[b] the material does not identify or mention the opposing candidate.

[2] The material must be provided to all other candidates who have filed for the same office and who are individually identified or mentioned in the advertising, except candidates mentioned in the context of endorsements.

[3] Final copies of material described in subsection (1) must be provided to the candidates listed in subsection (2) at the following times:
[a] at the time the material 1s published or broadcast or disseminated to the public;
[b] if the material is disseminated by direct mail, on the date of the postmark; or
[c] if the material is prepared and disseminated by hand, on the day the material is first being made available to the general public.

[4] The copy of the material that must be provided to the candidates listed in subsection (2) must be provided by electronic mail, facsimile transmission, or hand delivery, with a copy provided by direct mail if the recipient does not have available either electronic mail or facsimile transmission. If the material is for broadcast media, the copy provided must be a written transcript of the broadcast….

The court concluded that the law was content-based, because it “requires the contemporaneous disclosure of certain speech. Specifically, the statute requires the speaker to provide a copy of the particular campaign advertisement to any candidates individually mentioned therein ‘except candidates mentioned in the context of endorsements.'”

[Defendant Montana Commissioner of Political Practices Jeffrey] Mangan argues that some “cursory examination” of speech that is incidental to the application of an otherwise content-neutral restriction does not make the restriction content based. Mangan is correct that some content-based inquiries used “to determine whether a rule of law applies to a course of conduct” can still be found content neutral. See Hill v. Colorado (2000). However, the Supreme Court has more recently clarified that when a law is content-based on its face, it is subject to strict scrutiny “regardless of the government’s benign motive, content-neutral justification, or lack of animus toward the ideas contained in the regulated speech.” Reed v. Town of Gilbert (2015). This is so if the law, unlike Montana’s Fair Notice provision, “does not discriminate among viewpoints within that subject matter.” Under Montana’s Fair Notice provision, endorsements are treated differently from non-endorsements specifically because the state as a matter of policy does not believe candidates need to respond to endorsements. The state therefore “draws a distinction based on the message a speaker conveys.” “That is about as content-based as it gets.”

And the court then held that the law couldn’t pass the “strict scrutiny” applicable to content-based restrictions (which requires that the restriction be “narrowly tailored to achieve a compelling state interest”):

Mangan insists that Montana’s Fair Notice provision serves three compelling interests: (1) “deterring corruption or the appearance of corruption,” (2) “providing the electorate with information,” and (3) “protecting candidates’ right to respond late in a campaign.” …

Courts consistently recognize an “important” or “substantial” interest in both providing the electorate with information and combatting corruption. Less clear, however, is whether these interests ascend to the level of “compelling.” That question can be avoided, however, as Mangan fails to adequately connect the law at issue with either interest. First, Mangan presents no evidence showing that the disclosure of negative campaign advertisements to individual candidates combats corruption. Unlike other disclosure cases regarding political contributions and expenditures, § 13-35-402 “does not regulate any financial aspect of a [political action committee]’ s participation in the political process.   Rather, it imposes a more pernicious burden on speech in that it delays, and sometimes even prevents, political speech on the basis of content.” In the absence of such a connection,§ 13-35-402 “cannot pass muster on this basis.”

In the same way, Mangan fails to connect Montana’s Fair Notice provision to an informed electorate. Unlike many disclosure laws, § 13-35-402 does not require disclosure about a particular candidate or entity to the general public. Here, the disclosure at issue is between a candidate or entity and an individual candidate.   As a result, the “informational” interest espoused in other disclosure cases is inapposite. In Yamada, for example, the Ninth Circuit specifically phrased the relevant interest as “reporting and disclosure obligations provide information to the electorate about who is speaking” because “[t]his transparency enables the electorate to make informed decisions and give proper weight to different speaker and message.” … Montana’s Fair Notice provision in this case requires disclosure to specific, individual candidates, not disclosure of any information to the electorate as a whole.

While the required disclosure may result in the release of additional information into the public sphere, the law itself mandates no such thing. To the contrary, enforcing § 13-35-402 has the potential to “chill” campaign speech in the final days of an election. “A State’s claim that it is enhancing the ability of its citizenry to make wise decisions by restricting the flow of information to them must be viewed with some skepticism.” Thus, to the extent an informational interest may be compelling, it is not achieved here.

That leaves only the State’s purported interest in in giving candidates a right to respond to negative campaign advertisements on the eve of an election. In a perfect political place that notion makes sense. But last-minute negativity is a reality whether endorsed or not.

Although first characterized as the state’s interest in responding to “false” information, Mangan has not shown that last-minute campaign advertisements are more or less likely to contain “false” information than any other advertisement. Thus, a compelling interest in correcting “false” information, to the extent one exists, is not at issue here. Nonetheless, Mangan’s argument is based almost entirely on the synonymous treatment of false and negative speech…. [T]he state “cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented.” Based on the record in this case, the “right to respond” does not provide a compelling interest justifying the burdens Montana has placed on “negative” campaign speech. Mangan “has simply decried ‘negative campaigning’, in general, and while the Court might agree that negative campaigning is distasteful, that is not a sufficient basis for interfering with core first amendment rights.”

Moreover, even if the state’s identified interest was compelling, Mangan has not shown the statute is narrowly tailored to achieve that interest. “A statute is narrowly tailored if it targets and eliminates no more than the exact source of the evil it seeks to remedy.” “If a less restrictive alternative would serve the state’s compelling interest with the same level of effectiveness, the state must use that alternative.” Here, the statute is both overbroad and underinclusive.

As to its overbreadth, Montana’s Fair Notice provision requires disclosure in all contexts except endorsements. As a result, while Mangan’s arguments focus on the right to respond to negative advertising, the statute also requires disclosure in the context of neutral advertisements. For example, if a political action committee issued a mailer that merely outlined the voting records of two candidates on an issue with no further commentary, that mailer would be subject to disclosure. As such, the law is overbroad.

The law is also underinclusive. “While narrow tailoring requires that a statute not cover more speech that is necessary to serve a compelling government interest, a statute can also fail strict scrutiny if it covers too little speech.” “Underinclusivity creates a First Amendment concern when the State regulates one aspect of a problem while declining to regulate a different aspect of the problem that affects its stated interest in a comparable way.” Here, the disclosure rule only applies in the last ten days of an election. While the timing of certain advertising may have unique impacts, Mangan fails to provide any evidence supporting that position, especially related to the ten-day timeframe statutorily imposed here. That omission is particularly problematic under Montana law as absentee ballots are mailed to voters 25 days before an election.

The law also does not cover certain types of communication. Although Mangan argues oral communication is inherently different from print communication, he once again provides no evidence to support that position. Under the current law, disclosure is not required if a candidate or political action committee went to a town hall meeting and disparaged an opponent, even falsely. Additionally, [Plaintiff] Montana Citizens initially argued that the provision was underinclusive because it also did not apply to the internet or social media. In response, Mangan cited regulatory authority outlining the timing requirements for “broadcast media [and] digital media.” While Montana Citizens conceded this point at oral argument, it seems doubtful that the regulation insulates the statute from an inclusivity problem in light of the fact that§ 13-35-402 only references “broadcast media,” which does not include internet.

The statute also fails to cover speakers beyond candidates and political action committees. In Bayless, for example, the Ninth Circuit found a similar Arizona statute unconstitutional in part because it only applied to political action committees and not candidates. Here, Montana’s law is more narrowly tailored than Arizona’s because it includes candidates. But Mangan fails to show that either candidates or political action committees are the primary groups engaged in negative last-minute election advertising. To be sure, if Mangan presented such evidence, Montana’s Fair Notice provision could be “appropriately scaled to the level of political advocacy in which an organization [or candidate] engages.” … “Organizations that frequently engage in political speech can be required to disclose more information than organizations that only do so occasionally.” … But the record is silent on this point and as it stands, individuals, other organizations, and the press are all “free to place as many negative, misleading or confusing advertisements as they like, none of which are subject to the[] notice requirement.”

Congratulations to my friend Matt Monforton, who was the lawyer for the plaintiffs.

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AOC Is a Fake YIMBY


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Progressive champion Rep. Alexandria Ocasio-Cortez (D–N.Y.) is generating a good deal of buzz among supply-loving housing reformers for supposedly seeing the light on zoning reform after her political action committee (PAC) released a candidate questionnaire endorsing a number of prized YIMBY (yes in my backyard) policies.

The 2022 questionnaire put out by her Courage to Change PAC last week asks candidates vying for its endorsement whether they can get behind eliminating single-family-only zoning, reducing minimum lot sizes, and rezoning wealthy communities to allow for “mixed-income” housing developments.

All of these policies have been longtime goals of the country’s YIMBY movement, a generally left-leaning but politically diverse coalition that’s settled on eliminating restrictions on new, denser housing development as the primary cure for America’s high rents and home prices.

The YIMBY movement has been scoring some impressive wins in recent years, such as passing legislation in states and cities across the country that allow property owners to build more housing on their own land and to make it more difficult for local governments (and the neighbors) to stop them.

Ocasio-Cortez’s latest questionnaire has some thinking that she too has been won over to the YIMBY cause.

Curbed confidently declared as much in an article headlined “AOC Is a YIMBY Now,” which got an approving retweet from the congresswoman herself.

Progressive blogger and Bloomberg columnist Noah Smith likewise saw this questionnaire as proof of both Ocasio-Cortez’s own YIMBYism and of a broader left-wing shift away from an anti-capitalist politics that also happens to be very anti-development.

Complicating this picture of Ocasio-Cortez as a fervent, sudden YIMBY convert is her own history of supporting zoning reform in general, while simultaneously embracing stridently anti-development talking points about construction in her own backyard.

Ocasio-Cortez has been putting her name on zoning reform proposals since at least 2019. In November of that year, she introduced her A Place to Prosper Act—one of six bills in her A Just Society package.

In addition to creating new tenant protection policies and imposing stricter regulations on corporate landlords, the Place to Prosper Act would also have pulled federal highway funding from localities that had single-family-only zoning laws on the books, required developers to include off-street parking in new construction, mandated large lot sizes, and/or banned manufactured housing parks.

A number of federal legislators have introduced bills that would tie transportation funding to localities loosening up their zoning codes. Ocasio-Cortez’s bill, by conditioning federal highway funds on the total elimination of single-family-only zoning and large lot sizes, is perhaps the most radical of these proposals.

That should theoretically earn her a lot of YIMBY credibility.

And yet, just a week after introducing this bill, Ocasio-Cortez also came out swinging against a proposal to develop tens of thousands of new homes, including potentially thousands of affordable homes, in her own district.

The proposal in question would have involved decking over the 180-acre Sunnyside Yard rail yard in Queens, and then letting developers build a mix of residential and commercial space, parks, and community facilities on top of it.

At a minimum, this plan would have added 14,000 new units of housing in a housing-starved New York City. One “residential test case” envisioned adding 24,000 new housing units at the site, including 7,200 below-market-rate units.

Ocasio-Cortez strongly objected to this creation of new homes as an example of “overdevelopment” that would make New York City’s affordability problems worse, not better.

“The proposal as it stands reflects a misalignment of priorities: development over reinvestment, commodification of public land over consideration of public good,” wrote Ocasio-Cortez and New York City Council Member Jimmy Van Bramer in a letter to the city’s Economic Development Corporation. “The proposed high-rise and mid-rise residential buildings would further exacerbate a housing crisis that displaces communities of color and parcels off public land to private real estate developers.”

In January 2020, Ocasio-Cortez officially resigned from a steering committee that was advising the Sunnyside Yard project.

The Manhattan Institute’s Michael Hendrix described Ocasio-Cortez’s complaints about Sunnyside Yard as “garden-variety NIMBYism” to Reason at the time.

Indeed, it’s hard to see how someone who is sincerely convinced of the merits of new housing supply as a means of making cities more affordable could at the same time object to the creation of thousands of new homes over a railyard because of their potential to cause displacement and gentrification.

To be clear, there are good reasons to oppose the Sunnyside Yard development. The value of the developable land created by decking over the railyard would still be less than the cost of the deck itself, meaning the project would require substantial public subsidies. Ocasio-Cortez doesn’t raise that objection, however.

She’s also come out against other, even less objectionable projects in Queens. In 2018, she opposed the plans of a local developer to secure a zoning change that would have allowed him to build a 120-unit residential development with a Target store on the ground floor. Thanks to the opposition from Ocasio-Cortez and other local officials, the developer opted to build offices and medical suites instead.

One could argue that Ocasio-Cortez’s views have evolved away from this earlier left-wing NIMBYism. The fact that she can introduce zoning reform legislation one week and oppose new apartments the next suggests she can hold both views in her head at the same time.

We’ve seen other examples of socialist candidates and elected officials endorse YIMBY policies for wealthy areas while still incorporating a heavy dose of left-wing NIMBYism into their plans for their own districts or supporters.

San Francisco politician and socialist activist Jackie Fielder endorsed repealing zoning restrictions in wealthy communities like Cupertino and Beverly Hills during her bid to unseat YIMBY champion state Sen. Scott Wiener (D–San Francisco). Fielder also made her opposition to Wiener’s “market-based approach” to housing affordability—which involved legalizing apartment buildings near transit stops—a significant issue in her campaign.

The 2020 presidential campaign platform of Sen. Bernie Sanders (I–Vt.) called out the racist legacy of zoning laws, a common, correct YIMBY refrain. Yet Sanders also endorsed Boston activists’ opposition to turning a dilapidated race track into 10,000 units of housing in the lead up to the Massachusetts presidential primary. (Ocasio-Cortez endorsed Sanders’ presidential bid.)

To be clear, it’s not just left-wing politicians that waffle on zoning reform. President Donald Trump’s housing secretary, Ben Carson, was happy to describe himself as a YIMBY in favor of eliminating zoning restrictions for a few years. But in 2020 he and Trump did a complete 180 and decided that zoning reform was actually a left-wing plot to destroy the American dream.

That so many politicians can talk out of both sides of their mouths on zoning reform means people should be cautious about handing out the YIMBY label. The risk is that sincere supporters of new housing end up running interference for candidates who continue to dabble in counterproductive NIMBYism. (My own coverage of Carson and his zoning reform work at HUD should be a cautionary tale to all.)

At a minimum, Ocasio-Cortez’s views on housing are a mixed bag when viewed in total. When it comes to housing policy in her own backyard, they are explicitly anti-development. That would produce some awkward answers if she had to fill out her own PAC’s questionnaire.

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Did Redistricting Reform Fail in Ohio?


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After Republicans used their control of Ohio’s state government to draw politically favorable congressional and legislative district maps a decade ago, voters in the state approved a constitutional amendment in 2018 that was supposed to put an end to such single-party mapmaking.

It seems to have failed.

In a pair of rulings last week, the Ohio Supreme Court rejected the proposed maps—congressional, state Senate, and state House district—on the grounds that all three unfairly favored Republicans. “The General Assembly produced a plan that is infused with undue partisan bias and that is incomprehensibly more extremely biased than the 2011 plan that it replaced,” wrote Justice Michael Donnelly in a 4-3 opinion invalidating the new congressional plan.

The proposed congressional map would have given Republicans an advantage in 12 of the state’s 15 congressional districts, according to an analysis by the Princeton Gerrymandering Project, which measures proposed and enacted political maps on several different metrics of geographic compactness and political competitiveness. (At present, Republicans control 12 of the state’s 16 congressional seats, but Ohio is losing one seat due to reapportionment.)

Though the proposed map scored a grade of “C” for compactness and for not unnecessarily dividing too many existing political boundaries, the Princeton Gerrymandering Project gave it an overall grade of “F” for the underlying partisan imbalance. A fairer map, the group says, would give Republicans an edge in eight to 10 of the 15 districts.

It’s not exactly clear what will happen now, but The Columbus Dispatch reports today that both the state legislature and the state’s new redistricting commission will get back to work on a new set of maps.

Rather than speculating about what might happen next, it’s more useful to look back at how Ohio arrived at this point. What went wrong with the redistricting reforms that were supposed to prevent this one-sided outcome in the first place?

The answer has to do with the changes implemented in 2018, which ultimately left state lawmakers and other political figures in control of the process, despite the veneer of reform. The constitutional amendment approved by voters created a new redistricting commission for redrawing state House and state Senate districts but left the state’s General Assembly in charge of the congressional district-drawing process—though the amendment did raise the threshold for passing a new map so that 60 percent of both chambers had to approve.

That explains why the congressional map ended up the way it did. Republicans hold sizable majorities in both chambers of the Ohio General Assembly, so they easily passed a map that was slanted towards the GOP.

But the commission failed to draw a map that could pass judicial muster. That’s probably because, unlike some other states that have attempted to create commissions where members of the public have a say, Ohio’s “reform” put seven high-ranking state officials in charge of the legislative maps. The commission’s members are: Gov. Mike DeWine (R), Secretary of State Frank LaRose (R), State Auditor Keith Faber (R), Speaker of the House Robert Cupp (R), Senate President Matthew Huffman (R), House Minority Leader Emilia Sykes (D), and state Sen. Vernon Sykes (D).

That means Ohio’s new (and newly rejected) district maps are a classic example of what Walter Olson, a senior fellow at the Cato Institute, has previously termed “buddymandering.” It’s one of the major reasons why some redistricting reforms “go off the rails,” as Olson wrote in a July 2020 Reason article. Leave politicians in full control of the redistricting process and overtly political outcomes are sure to follow.

There is probably no set of reforms that can fully remove politics from what is an inherently political process. Politicians and political parties have extremely powerful incentives to influence the district-drawing process, so the key is to try and mute that potential influence as much as possible—or, at the very least, to prevent one party from having full control. In the same way that effective constitutions prevent power from accumulating in a few hands, an effective redistricting system is one that diffuses the responsibility away from those who have the strongest desire to control it.

Many states have undertaken reforms—of varying degrees of effectiveness—over the past 10 years, so this redistricting cycle is the first large-scale experiment with what works and what doesn’t. Clearly, Ohio’s tepid changes were not worth much.

But reforms in other states still offer hope. In Maryland, for example, a truly nonpartisan citizens redistricting commission produced a congressional map that is objectively superior in every way to the one produced by state lawmakers. Unfortunately, the lawmakers get to choose which map becomes reality—something that reformers will try to fix before 2030.

Reformers in Ohio might want to pay attention to the words of Chief Justice Maureen O’Connor of the Ohio Supreme Court. A Republican appointee, O’Connor joined with the court’s three Democratic appointees to block the approval of the new state legislative district maps. In a separate concurrence, she highlighted the obvious benefits of nonpartisan redistricting commissions.

“While not free from their own vulnerabilities, independent redistricting commissions have become ‘the premier institutional solution to the problem of partisan gerrymandering’ because they increase the degree of separation between map-drawers and partisan politics,” O’Connor wrote. “Having now seen firsthand the current Ohio Redistricting Commission—comprised of statewide elected officials and partisan legislators—is seemingly unwilling to put aside partisan concerns as directed by the people’s vote, Ohioans may opt to pursue further constitutional amendment to replace the current commission with a truly independent, nonpartisan commission that more effectively distances the redistricting process from partisan politics.”

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