Tag: posts

At the beginning of his hearing on election “irregularities” yesterday, Sen. Ron Johnson (R–Wis.) tried to lower expectations for Republicans who still think systematic fraud delivered a phony victory to President-elect Joe Biden. Johnson, who convened the hearing as chairman of the Senate Homeland Security and Governmental Affairs Committee, was also responding to critics, including ranking committee member Gary Peters (D–Mich.), who warned that Johnson was lending credence to that fanciful conspiracy theory.

“We will hear testimony on how election laws in some cases were not enforced and how fraudulent voting did occur, as it always does,” Johnson said. “The question that follows is whether the level of fraud would alter the outcome of the election this year. In dozens of court cases, through the certification process in each state and by the Electoral College vote, the conclusion has collectively been reached that it would not.”

That position represents quite a turnaround for Johnson, a steadfast Trump ally who as recently as last week was suggesting that he might support an electoral vote challenge aimed at preventing Biden from taking office. “It depends,” he told reporters last Thursday. “I need more information. The American people need more information. I’m not ready to just close and slam the book on this thing and go ‘OK, let’s walk away from it.'”

Johnson is now ready to close the book on the outcome of the 2020 presidential election, although he still has concerns about some of the ways in which it was conducted. Those concerns were detailed by several witnesses at the hearing, only one of whom alleged fraud sufficient to give Biden electoral votes that Trump should have received. That witness, Trump campaign lawyer Jesse Binnall, relied on evidence that was decisively rejected by Nevada courts.

Former Solicitor General Kenneth Starr, who oversaw the Whitewater investigation as an independent counsel during the Clinton administration, aired a couple of familiar complaints about the election in Pennsylvania. “One Pennsylvania judge concluded that state law required poll watchers to be present (within six feet) in order to meaningfully to observe the ballot-counting process,” he noted. “In Philadelphia, election officials had indisputably violated this pro-integrity measure.” He also noted a much-criticized Pennsylvania Supreme Court decision that extended the deadline for absentee ballots.

Republicans may have a legitimate beef about those practices, especially the second one. But even valid complaints about election procedures do not necessarily have outcome-changing implications. Keeping poll watchers farther than six feet away, while it may invite suspicion, does not prove that anything illegal was going on, and the number of late-arriving absentee ballots in Pennsylvania was too small to change the outcome in that state.

Francis Ryan, a Republican state representative from Pennsylvania, likewise complained about the extension of the mail-in voting deadline, along with two other decisions by the Pennsylvania Supreme Court that authorized the use of drop boxes for absentee ballots and said ballots should not be rejected based on signature comparisons. Ryan also noted the state’s policy of allowing voters to fix errors on their absentee ballots. The Trump campaign argued that uneven adoption of that policy violated the 14th Amendment’s Equal Protection Clause because it put Republicans at a disadvantage—a claim that was rejected in scathing terms by a federal judge and the U.S. Court of Appeals for the 3rd Circuit.

Trump campaign attorney James Troupis highlighted disputes about election procedures in Wisconsin, including the treatment of absentee ballot witness certificates with incomplete addresses and the question of which voters qualified as “indefinitely confined” (meaning they did not have to submit copies of their IDs when they applied for absentee ballots) in light of the COVID-19 epidemic. Those issues, along with the controversy over Wisconsin’s use of drop boxes, hinge on reasonable disagreements about statutory interpretation. But last Saturday, a Trump-appointed federal judge in Wisconsin rejected the president’s argument that the Wisconsin Elections Commission’s decisions on these matters flouted state law and therefore violated the Constitution.

The only witness who actually alleged decisive election fraud was Binnall, who claimed that comparisons of Nevada voter lists with commercially available databases had identified “over 130,000 unique instances of voter fraud.” According to Binnall, that total included 42,000 people who voted more than once, “more than 19,000 people” who “voted even though they did not live in Nevada,” “over 15,000 votes” that “were cast from commercial or vacant addresses,” “about 8,000 people” who “voted from non-existent addresses,” “at least 1,500 dead people” who were “recorded as voting,” and “almost 4,000 non-citizens who also voted.”

If 130,000 people really did vote illegally in Nevada, that would be more than enough to swing the contest for that state’s six electoral votes, which Biden won by a margin of about 33,600. Yet in response to a question from Sen. James Lankford (R–Okla.), Binnall conceded that the rampant voter fraud he described has not led to a single prosecution:

Lankford: In my state, when someone votes twice—and we do have that occasionally, about 50 times a year, that that actually occurs in our state—we prosecute individuals that vote twice. Of [these] 130,000 instances that you have identified from the 2020 election in Nevada, do you know of any prosecutions currently going on in Nevada for any voter fraud?

Binnall: Not yet, senator.

When the Trump campaign asked a Nevada judge to overturn the state’s election results based on these fraud claims, he concluded that its evidence was not credible. To back up its allegations, the Trump campaign submitted a deposition of Jesse Kamzol, formerly the Republican National Committee’s chief data officer. “The Court questions Mr. Kamzol’s methodology because he had little to no information about or supervision over the origins of his data, the manner in which it had been matched, and what the rate of false positives would be,” Carson County Judge James Russell wrote. “Additionally, there was little or no verification of his numbers.”

The defense’s expert witnesses, whom Russell deemed more credible, said the Trump campaign’s methodology was dubious and described its claims as highly implausible in light of historical experience and academic research on voter fraud. Russell also noted that one of the campaign’s experts “testified that he has no personal knowledge that any voting fraud occurred” in Nevada’s election. “Based on this testimony,” the judge said, “the Court finds that there is no credible or reliable evidence that the 2020 General Election in Nevada was affected by fraud.”

On December 4, Russell dismissed the Trump campaign’s lawsuit with prejudice, and the Nevada Supreme Court unanimously upheld that decision four days later. “The district court’s order thoroughly addressed the grounds asserted in the statement of contest filed by appellants and considered the evidence offered by appellants even when that evidence did not meet the requirements under Nevada law for expert testimony…or for admissibility,” the court said. “Despite our earlier order asking appellants to identify specific findings with which they take issue, appellants have not pointed to any unsupported factual findings, and we have identified none.”

According to Trump’s conspiracy theory, Democratic election officials across the country resorted to manufacturing phony absentee ballots after their original plan, which involved switching Trump votes to Biden votes with nefarious election software, did not work as expected. Christopher Krebs, who ran the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) until Trump fired him in a fit of pique on November 17, addressed the plausibility of that claim in his testimony before Johnson’s committee.

Krebs described the steps that CISA had taken to improve election security prior to this year’s vote and reiterated the CISA-endorsed conclusion that the 2020 election was “the most secure in U.S. history.” He noted that CISA had repeatedly tried to correct misinformation about machine-facilitated voting fraud.

“As we moved on from Election Day, we began to see wild and baseless domestic
claims of hackers and malicious algorithms that flipped the vote in states across the country, singling out election equipment vendors for allegedly having ties to deceased foreign dictators,” Krebs said. “None of these claims matched up with what we knew about the facts. The allegations being thrown around about manipulation of the equipment used in the election are baseless. These claims are not only inaccurate and ‘technically incoherent,’ according to 59 election security experts, but they are also dangerous and only serve to confuse, scare, and ultimately undermine confidence in the election. All authorities and elected officials in positions of power or influence have a duty to reinforce to the American people that these claims are false.”

The most powerful and influential promoter of these “wild and baseless” claims, of course, is Krebs’ former boss, the president of the United States. Yet Johnson, even while worrying that “a large percentage of the American public does not believe the November election results are legitimate,” conspicuously failed to mention Trump’s tireless efforts to foster and reinforce that distrust.

“There are many reasons for this high level of skepticism,” Johnson said. “It starts with today’s climate of hyper-partisanship, which was only exacerbated by the persistent efforts to delegitimize the results of the 2016 election. The corrupt investigation and media coverage of the Russian collusion hoax reduced faith in our institutions. And the ongoing suppression and censorship of conservative perspectives by biased news media and social media adds fuel to the flames.”

Whatever role those factors may have played, they pale by comparison with Trump’s constant and continuing promotion of the claim that the presidential election was stolen through a vast criminal conspiracy involving tricky voting software and wholesale paper ballot fraud. Johnson now admits there is no credible evidence to support that story, which means the president has been utterly reckless in loudly and relentlessly endorsing it. The fact that Johnson could not spare a word to acknowledge that reality shows the extent to which the Republican Party has been corrupted by its mindless fealty to a man who has no principles and no respect for the truth.

from Latest – Reason.com https://ift.tt/38taLEv
via IFTTT

In an apparent effort to finish off the businesses that survived the nightmare that was 2020, New York will go ahead with a planned minimum wage increase at the end of the month.

The New York Department of Labor announced Wednesday that it will move forward with plans to hike the state’s minimum wage on December 31. Under the state’s phased-in minimum wage increase that started in 2016, businesses in New York City are already required to pay workers a minimum of $15 per hour. On December 31, the minimum wage in Long Island and Westchester County will increase by $1 to $14 per hour, and the minimum wage across the rest of the state will jump from $11.80 to $12.50 per hour.

The Labor Department had considered postponing the minimum wage hikes in light of the COVID-19 pandemic and associated government-mandated shutdowns that have crushed businesses across New York. The unemployment rate in New York state has been above 10 percent nearly every month since March, and as many as one-third of New York City’s small businesses may have permanently closed due to the pandemic. With new statewide economic lockdowns announced in recent weeks (and Gov. Andrew Cuomo threatening even more in the near future), those figures are likely to get gloomier before they improve.

Seems like a great time to make it more expensive to employ people, right?

Greg Biryla, New York director of the National Federation of Independent Business (NFIB), told the Rochester Democrat & Chronicle that the Cuomo administration’s reasoning for approving the minimum wage hike “defies logic.” Even with assistance from the state and federal governments, 39 percent of NFIB members say they could be out of business in the next year.

The infuriating thing is that the state is well aware of the additional burden it is creating—the Cuomo administration just doesn’t seem to care. A report commissioned by the labor department to review the potential costs of hiking the state’s minimum wage in the middle of a pandemic and economic crisis notes that “COVID-19 has dramatically changed the economic landscape, casting doubt on whether the capacity to absorb minimum wage increases without adverse impact can continue over the near-term.”

But the analysts add that “Anecdotally, our research has found examples of job openings upstate offering wages well above $12.50,” and conclude that “these examples could be interpreted as evidence that upstate businesses are able to offer the wages necessary to attract the workers they need.”

Yes, they discard piles of actual economic data because they found anecdotal evidence that businesses can afford to pay higher wages—and so all must.

F. A. Hayek famously wrote that politicians and bureaucrats will always lack the necessary knowledge to run the economy as well as the market can. That’s often true. But here’s an example of bureaucrats having all the information necessary to make what should be a very easy decision to postpone a minimum wage hike until the pandemic passes and unemployment falls—and the amount of knowledge doesn’t matter as long as Cuomo’s administration is determined to ignore reality.

from Latest – Reason.com https://ift.tt/3gVcwxX
via IFTTT

The Supreme Court last week unanimously ruled in Tanzin v. Tanvir that a trio of Muslim men may sue a group of FBI agents who put them on the no-fly list after they refused to spy on their own communities. It’s been hailed as a win for religious liberty, and it is. But the ruling also strikes at something deeper: namely, that the tide may be turning on how we are able to hold public officials accountable when they violate our constitutional rights.

Muhammad Tanvir, Jameel Algibhah, and Naveed Shinwari allege that the FBI harassed them at their workplaces, confiscated their passports, and stripped them of their travel privileges after they declined to act as informants, costing them money on lost airline tickets and squandered job opportunities. They then sued under the Religious Freedom Restoration Act (RFRA) of 1993, which prevents the government “from substantially burdening a person’s exercise of religion” and authorizes litigants to pursue “appropriate relief” when such rights are infringed on. Yet while the Department of Homeland Security eventually removed the respondents from the no-fly list, the government countered that the “appropriate relief” referenced in the statute does not allow for monetary damages.

Writing for the unanimous panel, Associate Justice Clarence Thomas categorically rejected that argument. “A damages remedy is not just ‘appropriate’ relief as viewed through the lens of suits against Government employees,” he said. “It is also the only form of relief that can remedy some RFRA violations. For certain injuries, such as respondents’ wasted plane tickets, effective relief consists of damages, not an injunction.”

Any other response would defy common sense. Put plainly, the FBI held that, while private actors can be subject to lawsuits when they misbehave, a job with the federal government should in and of itself serve as an invincible liability shield. A strange way to “drain the swamp.”

“At stake in this case was whether these individuals would be able to even open the courthouse door and sue federal officials for violations of their religious rights,” says Anya Bidwell, an attorney with the Institute for Justice, which filed an amicus brief in Tanzin. “The government argued that simply because the suit was for damages, it meant that they can’t open that courthouse door.”

Fortunately, they will now be able to open that door and plead their case. In his ruling, Thomas invoked Section 1983, the country’s foremost civil rights statute that permits Americans to sue public officials when they impinge on their rights. “RFRA uses the same terminology as §1983 in the very same field of civil rights law,” wrote Thomas. It is not the high court’s job to create laws where they do not exist, he added, which the government was effectively asking them to do. “To be sure, there may be policy reasons why Congress may wish to shield Government employees from personal liability, and Congress is free to do so,” Thomas said. “But there are no constitutional reasons why we must do so in its stead.”

He is correct. It’s all the more troubling, then, that the Supreme Court did exactly what Thomas is cautioning against when they created qualified immunity, the legal doctrine that makes it considerably harder to hold public servants accountable for civil rights violations.

In deciding Harlow v. Fitzgerald (1982), the high court ruled that state officials should be shielded from federal lawsuits under Section 1983 unless the misbehavior alleged by the plaintiff has been outlined almost exactly in a prior court precedent. There was no law on the books requiring that the justices validate such an accountability shield. On the contrary, instead of ruling to uphold Section 1983, as is their job, the Supreme Court cut directly against the law with their Harlow decision. 

The result has been disastrous for victims of government abuse. Consider the two police officers who stole $225,000 while executing a search warrant in Fresno, California. The two men “ought to have recognized that the alleged theft was morally wrong,” wrote the U.S. Court of Appeals for the 9th Circuit. But the cops “did not have clear notice that it violated the Fourth Amendment,” according to the judges, because no previous case law existed expressly decreeing that stealing violates one’s rights. They both got qualified immunity, and their victims could not sue for damages.

Qualified immunity has similarly protected two cops who assaulted and arrested a man for standing outside of his own house, two cops who sicced a police dog on a surrendered suspect, a cop who kneed a subdued man in the eye “20 to 30 times” and left lasting damage, a cop who heavily damaged a man’s car during a bogus drug search, a cop who shot a 10-year-old, and a cop who shot a 15-year-old.

To be clear, the FBI was not claiming qualified immunity in Tanzin. They went a step further, asserting that no request for monetary damages under the RFRA should ever make its way to a courtroom, with or without a previous case precedent. But there’s something significant about Thomas’s opinion, which cites the same civil rights statute and faulty line of reasoning used to conjure qualified immunity out of thin air in the 1980s. Is the Supreme Court ready to rectify their error?

The justices have recently declined to hear a slew of petitions that would have them reconsider the doctrine. But just last month, they overturned a decision granting qualified immunity to a group of prison guards who locked a naked inmate in two squalid cells, one covered with “massive amounts” of human feces and the other with raw sewage overflowing onto the floor via a clogged drain. The U.S. Court of Appeals for the 5th Circuit had acknowledged the guards acted unconstitutionally but awarded them qualified immunity based on the fact that the exact amount of time the inmate spent in those conditions was not outlined somewhere in a prior ruling.

But while the Supreme Court’s ruling gave relief to the plaintiff, it did not alter the legal doctrine itself. SCOTUS may continue to demur at the opportunity to reconsider qualified immunity, perhaps in the vein of Thomas’s reminder: They are not there to make policy, after all. But such an approach ignores that the court broke that very promise in 1982, eschewing separation of powers to legislate into existence a doctrine that has allowed public officials to get away with corruption unscathed. You broke it, you fix it.

from Latest – Reason.com https://ift.tt/3mu1ReT
via IFTTT

A Washington state superior court judge issued a temporary restraining order Wednesday against the Washington Department of Corrections (DOC) and myself to block the release of public records regarding the fatal September 3 shooting of Michael Forest Reinoehl by a law enforcement task force.

The judge granted a motion filed Tuesday by the Thurston County Sheriff’s Office (TCSO) seeking to temporarily enjoin the Washington DOC from releasing records to me on Reinoehl, who was killed by a fugitive task force composed of U.S. marshals and several Washington law enforcement agencies, including the Washington DOC.

Reinoehl, a self-proclaimed anti-fascist, was charged with second-degree murder in the August 29 shooting death of Patriot Prayer supporter Aaron Danielson in Portland. Reinoehl had been wanted for five days when a federal fugitive task force caught up with him in Lacey, Washington. The circumstances surrounding Reinoehl’s shooting remain unclear. Task force agents said Reinoehl either pointed a gun or was in the process of drawing a gun when he was shot. However, civilian eyewitnesses said the police didn’t announce themselves before unleashing a barrage of gunfire that killed Reinoehl. None of the law enforcement officers in the task force were wearing body cameras. In the final weeks of the 2020 presidential campaign, President Donald Trump frequently bragged about the killing.

On September 8, I filed public records requests to all the agencies in the task force for body camera footage, incident reports, and other documents related to the shootings. All of those agencies except the Washington DOC rejected the requests, citing the TCSO’s ongoing homicide investigation. The TCSO was not part of the task force and is conducting an independent investigation into the incident.

On November 24, the Washington DOC notified me that it had collected responsive records, but due to the TCSO investigation, it would be notifying the sheriff’s office before releasing anything.

In its Tuesday motion, the TCSO argued that the release of the records would “undermine the integrity of Thurston County’s criminal investigation and irreparably damage vital governmental functions.” The TCSO estimates that its investigation will take two more months.

The TCSO’s lawsuit is similar to what’s known as a “reverse FOIA” suit, an attempt by a government agency to force requesters to defend their right to access public records in court. As I wrote in a 2018 column with the unfortunately prescient headline, “The Right to Know Might Get You Sued,” more and more state and local agencies around the country have used this tactic to undermine transparency laws:

Unlike typical government stonewalling tactics, which put the onus on requesters to sue for records, these lawsuits instead make the information seekers bear the costs and time of going to trial to defend their right to know what their government is doing. This is an overt use of courts to drag more of the public business back into the shadows and enforce a type of sub rosa censorship.

The temporary restraining order bars the Washington DOC from releasing records to Reason until January 8, when the court will hold a hearing on a motion for a preliminary injunction.

from Latest – Reason.com https://ift.tt/3r5wjzo
via IFTTT

Today is Saturnalia, an ancient Roman holiday with a long tradition here at the Volokh Conspiracy, which we are now continuing at our new home with Reason. Admittedly, it’s  tradition only in so far as I have put up a post about it every December 17 for the last several years. But, by blogosphere standards, that’s a truly ancient tradition, indeed!

The Encyclopedia Romana has a helpful description of Saturnalia:

During the holiday, restrictions were relaxed and the social order inverted. Gambling was allowed in public. Slaves were permitted to use dice and did not have to work. . . Within the family, a Lord of Misrule was chosen. Slaves were treated as equals, allowed to wear their masters’ clothing, and be waited on at meal time in remembrance of an earlier golden age thought to have been ushered in by the god. In the Saturnalia, Lucian relates that “During My week the serious is barred; no business allowed. Drinking, noise and games and dice, appointing of kings and feasting of slaves, singing naked, clapping of frenzied hands, an occasional ducking of corked faces in icy water—such are the functions over which I preside.”

As is often the case, we have no shortage of strong applicants for the position of Lord of Misrule. A particularly formidable one is on his way out of the White House. But he may not disappear from the political scene entirely. And, even if he does, there are many other worthy competitors for the “honor.”

Happy Saturnalia to all the friends, Romans, and Volokh Conspiracy readers out there!

NOTE: Much of this post is adopted from Saturnalia posts from previous years.

from Latest – Reason.com https://ift.tt/2K50uGo
via IFTTT