Category Archives: Civil Liberties

Proportional Representation Could Open Door to More Black Political Power

With the debate over gerrymandering making its way through the Supreme Court, and voter suppression very much a reality, the issue of fair representation for Black people remains in need of solutions. This as the Voting Rights Act has been defanged of its enforcement mechanisms, and the rights of Black voters remain compromised. These circumstances provide fertile ground for the concept of proportional representation.

What is proportional representation? Consider the current system of legislative representation in America, in which one person represents one district in a single-member winner-take-all electoral district based on geography. Known as a First Past The Post (FPTP) system, it is notorious for excluding racial minorities.  As Vox reported, although proportional representation may take various forms, there are a few popular proposals. For example, a party list system allocates seats based on the number of votes each party receives. This system has a track record of increasing inclusion of ethnic and racial minorities in South Africa, Indonesia and Namibia.

By contrast, in an alternative vote system each state is a single district with various members, rather than various districts each represented by one member. Voters rank the candidates for office, with a formula determining which of the candidates capture the fixed number of seats. Under mixed-member proportional (MMP) systems such as those in Germany and New Zealand, voters cast two votes: one for the party of their choice, and the second for the representative of their choice. When New Zealand adopted its system in 1996, the Maori members of Parliament doubled from 6 percent to 12 percent, and increased to 22 percent in 2014. Pacific Islander MPs increased from 3 percent of Parliament in 1996 to 6 percent in 2014, and Asian MPs grew from 1 percent to 4 percent.

Another system used in Ireland, Northern Ireland, Malta, local elections in Scotland and in the Australian Senate is the Single Transferable Vote (STV), which allows people to vote for a team of legislators rather by ranking them in order of preference. The voter places a number “1” next to their favorite candidate, a “2” next to their second-favorite candidate, and so on. STV eliminates the concerns over vote splitting or tactical voting, and increases the chances of electing independent candidates for office, as voters choose among candidates rather than parties.

Advocates of proportional representation note that it is a solution to gerrymandering, which is the drawing of legislative district boundaries for the benefit of one political party and to entrench its power. Both major political parties engage in the practice, but the Republicans have used it to their advantage over Democrats in recent years, including in 2016 races for the U.S. House and state house and assembly seats. Thanks to gerrymandering, Republicans control a majority of state houses and Congress. Although one forecast has the Democrats receiving 54 percent of the votes in the 2018 House election, they would win a mere 49 percent of the seats.

Nonwhite and women lawmakers are each less than 20 percent of Congress, while the Republican caucus in both the House and Senate is nearly exclusively white, and mostly white men, for that matter. The impact of gerrymandering — which allows politicians to select their voters rather than the other way around — dilutes nonwhite votes.

The effect of gerrymandering is evident in the South, where the sizable population of Black people is not reflected in the congressional delegations and state houses, in which the power of white conservative men is amplified, and Black voters have little to no political power. For example, non-Hispanic whites are 53 percent of the population of Georgia, while Blacks are 32 percent, Latinos are 9 percent, and Asians are 4 percent. Yet, of the 14 House districts in Georgia, white Republicans occupy 10 of these seats (71 percent), and Black Democrats hold the remaining four. Both of Georgia’s U.S. senators are white Republicans, and the state legislature is 72 percent white, 25 percent Black and 1 percent Latino.

In North Carolina, where whites are 63 percent of the state population, Blacks are 22 percent and Latinos 9 percent, only two of the state’s 13 members of Congress are Black, while 11 are white men, and 10 are white Republican men. Both U.S. senators are white Republicans. Whites are 79 percent of the state legislature, Blacks are 20 percent and Latinos 1 percent.

The population of Mississippi is 57 percent white and 38 percent Black, but its entire delegation of two senators and four members of Congress are white Republicans, except for one Black Democrat in the House. The state legislature is 71 percent white and 28 percent Black.

Alabama is two-thirds white and 27 percent Black, according to the Census, but six of its seven House members are white Republicans — the seventh is a Black woman and a Democrat — and its senators are white Republican men. Alabama’s state legislators are three-quarters white and 24 percent Black.

Under a system of proportional representation, Black voters would have more fair and equal representation in city councils, and state legislatures, Congress, and with an amendment to the Constitution, the Senate. James Madison advocated for proportional representation in the Senate, which small states opposed.

With a party list system, Black people in Alabama and North Carolina could each gain an additional seat in Congress, and increase their presence in their respective state assemblies. Proportional representation would transform politics in Georgia, a state which may very well be on its way to becoming a purple and eventually a blue state — and a majority-nonwhite state — due to demographic changes. Under a party list system, for example, Black Democratic voters, in coalition with Latinos, Asians and progressive whites, could increase their representation in Congress by at least two members, possibly even taking over half of the Georgia’s congressional delegation. Georgia could also gain its first Black U.S. senator if elections for the upper house were governed by proportional representation. Similarly, Blacks and other nonwhite Georgians could capture nearly half of the state legislature.

Mississippi is the blackest state in the U.S. in terms of its percentage of African-Americans, and also the most conservative state, where race and party affiliation are highly correlated. If the state adopted a party list system, the Black electorate could gain one additional member of Congress — possibly its first Black senator since Reconstruction — and would increase its number of combined seats in both houses of the state legislature from approximately 49 to 66, out of 174 total seats.

Harvard law professor Lani Guinier has long been a champion of the concept, which is found in most the world’s democracies and ensures the minority has at least some representation. Guinier has also maintained that proportional representation would encourage participation, genuine debate and inclusion — as opposed to tokenism —which race-conscious districts, she argues, do not achieve. Guinier was lambasted for her ideas, which Republicans and moderate Democrats dismissed in 1993 as a quota system when Bill Clinton torpedoed her nomination to head the Justice Department’s Civil Rights Division.

While Guinier was characterized as a radical for her voting rights positions, the inadequacies of the current political system — which only magnifies white supremacist power — suggest the nation must consider a bold alternative. Although proportional representation is not a panacea for the myriad problems in U.S. government, its electoral system or its politics, it would prove responsive to the needs of the underrepresented, those such as Black voters who have been denied access to power and whose interests have not been served.

By David Love/AtlantaBlackStar

Posted by The NON-Conformist

Advertisements

The 2nd Amendment Says a Lot More Than the ‘Right to Bear Arms’—And the True History of It Will Blow Right-Wing Minds The Founding Fathers weren’t advocating for mass shootings.

Many politicians, especially those on the Right, pretend they are strictly adhering to the U.S. Constitution when they often are just making the founding document mean whatever they want – but perhaps nowhere is that as dangerous as with their make-believe Second Amendment.

In the wake of Sunday’s mass shooting in Las Vegas—where one individual firing from a high-rise hotel murdered 58 people and wounded more than 500 at a country music festival—we are told that the reason the United States can’t do anything to stop this sort of carnage is the Second Amendment’s “right to bear arms.”

“Gun rights” advocates insist that pretty much any gun control violates the design of the Constitution’s Framers and thus can’t be enacted no matter how many innocent people die.

Some on the Right, as well as some on the Left, even claim that the Founders, as revolutionaries themselves, wanted an armed population so the people could rebel against the Republic, which the U.S. Constitution created. But the Constitution’s Framers in 1787 and the authors of the Bill of Rights in the First Congress in 1789 had no such intent.

Arguably other individuals disconnected from the drafting of those documents may have harbored such radical attitudes (at least rhetorically), but the authors didn’t. In fact, their intent was the opposite.

The goal of the Second Amendment was to promote state militias for the maintenance of order at a time of political unrest, potential slave revolts and simmering hostilities with both European powers and Native Americans on the frontiers. Indeed, the amendment’s defined purpose was to achieve state “security” against disruptions to the country’s new republican form of government.

The Second Amendment reads: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.”

In other words, if read in context, it’s clear that the Second Amendment was enacted so each state would have the specific right to form “a well-regulated militia” to maintain “security,” i.e., to put down armed disorder and protect its citizens.

In the late Eighteenth Century, the meaning of “bearing” arms also referred to a citizen being part of a militia or army. It didn’t mean that an individual had the right to possess whatever number of high-capacity killing machines that he or she might want. Indeed, the most lethal weapon that early Americans owned was a slow-loading, single-fired musket or rifle.

No Anarchists

Further to the point, both the Constitution and the Bill of Rights were the work of the Federalists, who—at the time—counted James Madison among their ranks.

And whatever one thinks about the Federalists, who often are criticized as elitists, they were the principal constitutional Framers and the leaders of the First Congress. They constituted the early national establishment, people such as George Washington, Alexander Hamilton, Gouverneur Morris and Madison.

The Federalists feared that their new creation, a constitutional republic in an age of monarchies, was threatened by the potential for violent chaos, which is what European aristocrats predicted for the new United States. Democracy was a largely untested concept that was believed likely to fall victim to demagoguery and factionalism.

So, the Framers sought a political system that reflected the will of the citizens (the House of Representatives) but within a framework that constrained public passions (the Senate and other checks and balances). In other words, the Constitution sought to channel political disputes into non-violent competition among various interests, not into armed rebellions against the government.

The Framers also recognized how fragile the nation’s independence was and how domestic rebellions could be exploited by European powers. Indeed, one of the crises that led to the Constitutional Convention in the summer of 1787 was the inability of the old system under the Articles of Confederation to put down Shays’s Rebellion in western Massachusetts in 1786-87. Washington saw the possible hand of British agents.

So, the Federalists were seeking a structure that would ensure “domestic Tranquility,” as they explained in the Constitution’s Preamble. They did not want endless civil strife.

The whole idea of the Constitution—with its mix of voting (at least by some white male citizens), elected and appointed representatives, and checks and balances—was to create a political structure that made violence unnecessary.

So, it should be obvious even without knowing all the history that the Framers weren’t encouraging violent uprisings against the Republic that they were founding. To the contrary, they characterized violence against the constitutional system as “treason” in Article III, Section 3. They also committed the federal government to protect each state from “domestic Violence,” in Article IV, Section 4.

Putting Down Rebellion

One of the first uses of the new state militias formed under the Second Amendment and the Militia Acts, which required able-bodied men to report for duty with their own muskets, was for President Washington to lead a federalized force of militiamen against the Whiskey Rebellion, a tax revolt in western Pennsylvania in 1794.

In the South, one of the principal reasons for a militia was to rally armed whites to put down slave uprisings. On the frontier, militias fought against Native Americans over land. Militias also were called up to fight the British in the War of 1812.

But you don’t have to like or dislike how the Second Amendment and the Militia Acts were used to recognize how the Framers intended these legislative provisions to be used.

The Second Amendment was meant to maintain public order, even an unjust order, rather than to empower the oppressed to take up arms against the government. That latter idea was a modern reinterpretation, a distortion of the history.

The revisionists who have transformed the meaning of the Second Amendment love to cite provocative comments by Thomas Jefferson, such as a quote from a 1787 letter criticizing the Constitution for its commander-in-chief provisions.

Jefferson argued that violence, like Shays’s Rebellion, should be welcomed. He wrote, “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it’s [sic] natural manure.”

Jefferson, of course, was a world-class hypocrite who rarely believed what he was saying or writing. He crafted noble words, like “all men are created equal, … endowed, by their Creator, with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness,” but he was a major slaveholder who raped at least one and likely more slave girls and had slave boys whipped.

He also was never willing to risk his own blood as that “natural manure” of liberty. During the Revolutionary War when Benedict Arnold led a force of Loyalists against Richmond, Jefferson, who was then Virginia’s governor, fled the capital. Later, when British cavalry approached Charlottesville and his home of Monticello, Gov. Jefferson again took flight.

But more to the point, Jefferson was not a delegate to the Constitutional Convention, nor was he in the First Congress, which produced the Second Amendment. In other words, it’s a historical error to cite Jefferson in any way as speaking authoritatively about what the Framers intended with the Constitution and the Bill of Rights. He was not directly involved in either.

A Collective Right

The real history of the Second Amendment was well understood both by citizens and courts in the generations after the Constitution and Bill of Rights were enacted. For most of the years of the Republic, the U.S. Supreme Court interpreted the Second Amendment as a collective right, allowing Americans to participate in a “well-regulated Militia,” not an individual right to buy the latest weaponry at a gun show or stockpile a military-style arsenal in the basement.

It’s true that many Americans owned a musket or rifle in those early years especially on the frontier, but regulations on munitions were still common in cities where storing of gunpowder, for instance, represented a threat to the public safety.

As the nation spread westward, so did common-sense restrictions on gun violence. Sheriffs in some of the wildest of Wild West towns enforced gun bans that today would prompt a recall election financed by the National Rifle Association.

However, in recent decades — understanding the power of narrative on the human imagination — a resurgent American Right (and some on the Left) rewrote the history of the Founding era, dispatching “researchers” to cherry-pick or fabricate quotes from Revolutionary War leaders to create politically convenient illusions. [See, for instance, Steven Krulik’s compilation of apocryphal or out-of-context gun quotes.]

That bogus history gave rise to the image of the Framers as wild-eyed radicals – Leon Trotskys of the Eighteenth Century – encouraging armed rebellion against their own Republic. Rather than people who believed in the rule of law and social order, the Framers were contorted into crazies who wanted citizens to be empowered to shoot American police, soldiers, elected representatives and government officials as agents of “tyranny.”

This false history was advanced particularly by the American Right in the last half of the Twentieth Century as a kind of neo-Confederate call to arms, with the goal of rallying whites into a near-insurrectionary fury particularly in the South but also in rural areas of the North and West.

In the 1950s and 1960s, some white Southerners fancied themselves an armed resistance against the tyrannical federal government as it enforced laws on racial integration and other supposed infringements on “states’ rights.” In the 1990s, armed “citizens militias” began to pop up in reaction to the election of Democrat Bill Clinton, culminating in the Oklahoma City bombing of 1994.

While designed primarily for the weak-minded, the Right’s faux Founding history also had an impact on right-wing “intellectuals” including Republican lawyers who worked their way up through the federal judiciary under Ronald Reagan, George H.W. Bush, George W. Bush, and now Donald Trump.

By 2008, these right-wing jurists held a majority on the U.S. Supreme Court and could thus overturn generations of legal precedents and declare that the Second Amendment established an individual right for Americans to own guns. Though even these five right-wing justices accepted society’s right to protect the general welfare of the population through some gun control, the Supreme Court’s ruling effectively “validated” the Right’s made-up history.

The ruling created a political dynamic to which even liberals in national politics — the likes of Barack Obama and Joe Biden — had to genuflect, the supposed Second Amendment right of Americans to parade around in public with guns on their hips and high-powered semi-automatic rifles slung over their shoulders.

What the Framers Wanted?

As guns-right activists struck down gun regulations in Congress and in statehouses across the nation, their dominant argument was that the Second Amendment offered no leeway for restrictions on gun ownership; it’s what the Framers wanted.

So, pretty much any unstable person could load up with a vast killing capacity and slouch off to a bar, to a work place, to a church, to a school or to a high-rise Las Vegas hotel and treat fellow Americans as targets in a real-life violent video game. Somehow, the right to life, liberty and the pursuit of happiness was overtaken by the “right” to own an AR-15 with a 30-or-100-bullet magazine.

When right-wing politicians talk about the Second Amendment now, they don’t even bother to include the preamble that explains the point of the amendment. The entire amendment is only 26 words. But the likes of Sen. Ted Cruz, R-Texas, find the preamble inconvenient because it would undercut their false storyline. So they just lop off the first 12 words.

Nor do they explain what the Framers meant by “bear arms.” The phrase reflected the reasoning in the Second Amendment’s preamble that the whole point was to create “well-regulated” state militias to maintain “security,” not to free up anybody with a beef to kill government officials or citizens of a disapproved race or creed or just random folks.

So, even after the massacre of 20 first-graders and six educators in Newtown, Connecticut, in December 2012, Fox News personality Andrew Napolitano declared: “The historical reality of the Second Amendment’s protection of the right to keep and bear arms is not that it protects the right to shoot deer. It protects the right to shoot tyrants, and it protects the right to shoot at them effectively, with the same instruments they would use upon us.”

At the time, the clear message from the Right was that armed Americans must confront the “tyrannical” Barack Obama, the twice-elected President of the United States (and the first African-American to hold that office) especially if he pressed ahead seeking common-sense gun restrictions. But Napolitano was simply wrong on the history.

Another dubious argument from the gun-rights lobby was that armed citizens could take down a gunman and thus stop a mass shooting before it became a full-fledged massacre.

But a gunfight among largely untrained civilians would likely add to the slaughter, not stop it. For instance, a 2012 mass shooting occurred in a darkened theater in Aurora, Colorado. Does anyone logically think that a bunch of terrified gun carriers exchanging fire in such a situation – not knowing who the original shooter was – would solve the problem?

And how about Sunday’s massacre in Las Vegas where the shooter positioned himself on the 32nd floor of the Mandalay Bay Hotel and fired down on a packed concert venue, a substantial distance away?

Assuming that the concertgoers were armed and tried to defend themselves, they would likely have ended up shooting other innocent concertgoers because of the initial confusion as to where the shooter was positioned. That would have further complicated the challenge to police who could have mistakenly opened fire on armed people in the crowd rather than locate and stop the original killer as he kept firing from his sniper’s perch. In other words, the horrific death toll could have been even higher.

To pretend that such carnage was the intent of the Constitution’s Framers, who wrote about achieving “domestic Tranquility,” or the goal of the First Congress, which drafted the Second Amendment to promote “the security of a free State,” is intellectually dishonest and a true threat to the lives of American citizens.

By Robert Parry/AlterNet

Posted by The NON-Conformist

Exhuming William Borah

Every gun that is made, every warship launched, every rocket fired signifies in the final sense, a theft from those who hunger and are not fed, those who are cold and are not clothed. This world in arms is not spending money alone. It is spending the sweat of its laborers, the genius of its scientists, the hopes of its children. This is not a way of life at all in any true sense. Under the clouds of war, it is humanity hanging on a cross of iron.
Dwight D. Eisenhower

Stephen Paddock’s brother called him “just a guy”, and indeed he was. His well-planned, perfectly orchestrated antics in Las Vegas were really nothing out of the ordinary. Another broken record for Guinness, he simply raised the bar for the next aspiring civilian mass-murderer on U.S. soil, and pushed the privatization of war to a whole new level. No surprises here. What else would be expected from the most warlike Empire in history? Welcome to The United States of America. We’ve been perfecting war for profit for more than 241 years now. Rough figures I’ve compiled indicate that the U.S. Military has been busy on battlefields for a total of over 460 years, fighting somewhere in the neighborhood of 106 separate wars. Obviously there’s been considerable overlap, lots of simultaneous fighting, and very little down time.

Through the end of the nineteenth century, the U.S.A. busied itself with nation-building. There were millions of inconvenient Indigenous impediments to eliminate, and covetous European countries to conquer. Manifest Destiny required rivers of blood. From 1900 until present day, with most borders firmly established, the U.S. Military has busied itself with the tremendous task of controlling world resources, managing trade, and taming rogue nations who sought to play outside the established rules of what would become the world’s most powerful and feared superpower by mid-twentieth century. For Empire’s citizens, war is, and has always been the norm. Just business as usual. We are assured that our bravest and best in the world military fights our battles so we can enjoy our freedom. Little children learn to stand in reverence, pledge allegiance to the Stars and Stripes, and aspire to wear the uniform of the beloved fighting man. Their fondest dreams include firing the next generation of assault rifle at some, yet to be determined, enemy. Toy manufacturers have long made those dreams come true with authentic plastic replicas, complete with everything but real bullets, blood, and guts.

If “Happiness is a warm gun.” as the Beatles told us, tongues in cheeks, U.S. citizens must have about the happiest trigger-fingers on earth. With the N.R.A. owning the souls and reelection hopes of nearly every U.S. Senator and Congressman, talk of gun control never takes a serious turn. The most we can expect from our lawmakers is a basket load of bogus prayers and crocodile tears. Every time another aspiring mass-murderer takes to the streets, self-proclaimed Liberal voices meekly propose Band-Aid fixes. Mandatory gun registration, assault weapon bans, closing the gun show loophole, no open carry, background checks, and on, and on, and all I’m hearing is blah-fucking-blah. And why? Because every human being on earth is capable of murder, and guns are the easiest, most efficient means to kill. Each one of us teeters on the breaking point. Some much closer than others. I decided at a very young age, never to allow guns in my house, because if I had access to them, I’d surely be wasting away in prison by now. Case in point: I can think of nearly 600 people in Washington, D.C. alone, without whom this country and the planet would be better off. Too bad Paddock wasn’t about 2400 miles east of Vegas when he snapped, went off his rocker, and rat-a-tat-tatted his way into history.

The Las Vegas Massacre was nothing special. In Afghanistan, Iraq, and Syria, similar violence against a civilian population would barely make the news. Ours is a violent society. We think nothing of bombing foreign humans into oblivion. Unquestioningly we watch as our leaders send the U.S. Military into combat zones across the earth, creating chaos wherever it goes. We thank those who wear the uniform of death for their service. We love having the baddest, meanest armed force in history, and our violent mindset spills easily and naturally into our everyday lives. Americans love their guns. They love the power, they embrace their collections of steel phalli, and if you even suggest disarmament, they’ll blow your sorry ass into next week. U.S. citizens won’t voluntarily buy into any form of gun control, for any reason, any time in the foreseeable future, no matter how many of their friends, neighbors, and relatives are slaughtered. Savagery is embedded in the National Genome.

There will be no meaningful domestic gun control until the day we eliminate war as a means for settling disputes, gaining new national boundaries, and controlling foreign national resources. Which brings us to US. Senator William Edgar Borah. Idaho elected Borah to office in 1907, and kept him there until his death in 1940. The highest mountain in the state is named Mount Borah, and Senator Borah’s ideas may yet help mankind find a high point in history. In 1923, still haunted by the carnage of World War I, Senator Borah introduced a resolution in the Senate, which announced and defined the desire of The United States to abandon the war system in favor of strict adherence to world law. The following is an excerpt from The Borah Resolution:

…be it resolved, that it is the view of the Senate of The United States that war between nations should be outlawed as an institution or means for the settlement of international controversies by making it a public crime under the law of nations and that every nation should be encouraged by solemn agreement or treaty to bind itself to indict and punish its own international war breeders or instigators and war profiteers under powers similar to those conferred upon our Congress with the power to define and punish offenses against the law of nations; And be it resolved further that a code of international law of peace based upon the outlawing of war and on the principle of equality and justice between all nations, amplified and expanded and adapted and brought down to date should be created and adopted.

Stephen Paddock was just a guy. Like your neighbor, your friend, your brother. We won’t stop the next escapade by requiring registration, background checks, or limiting the size of the tools of the trade. The terror of mass murder is the direct result of the acceptance of war. The United States of America is a runaway train, loaded to overflowing with atomic bombs, bunker-busters, cluster bombs, landmines, tanks, fighter jets, missiles, rockets, and munitions of every caliber, shape, and size. It is on a collision course with all the hopes and dreams of our children, and has trashed any semblance of freedom, safety, or happiness anywhere on earth with the endless specter of war.

I’ve climbed countless mountains in my lifetime, but Mount Borah presents by far the greatest challenge. The actual mountain has a direct and easy route to the summit, but Senator Borah’s resolution never got off the ground. Too many profiteers had made their fortunes through the bloodshed of World War I. If he were alive and pushing his resolution today, Borah would likely be laughed right off the Senate floor. Ending the cycle of violence appears to be an impossible chore. My friend John Rachel has a plan, and what I believe to be a viable one. It offers substantial monetary rewards for those who sing the song of peace on earth. If it caught fire, The Peace Dividend would insure the ouster of N.R.A. whores in Congress, replace them with peace candidates, and put an end to war. This would signal a final and welcome end to the Dark Ages, and pave the road to total disarmament, both militarily and publicly.

And if I hear even one of you Second Amendment jackals out there whining about your God-given/Constitutional right to own guns, I’m going to buy myself a Glock, shove it in your mouth, and blow your pea brains into the next county. And that, my friends, is why nobody can be trusted with a gun. Each one of us teeters on the breaking point. Some much closer than others. Don’t make me come over there!

By John Rohn Hall/DissidentVoice

Posted by The NON-Conformist

The Future of Partisan Gerrymandering Hinges on Supreme Court Case

In a televised interview with the McClatchy News Service on June 25, 1969, Earl Warren, the legendary 14th chief justice of the United States, was asked to single out the most important case of his tenure on the bench, which began in 1953.

Warren, who had retired from the high tribunal just two days earlier, could have named any number of high-profile rulings: Brown v. Board of Education, which ended legal segregation in public schools; Miranda v. Arizona, which mandated that criminal suspects undergoing police interrogation be advised of their rights to counsel and against self-incrimination; Loving v. Virginia, which ended state prohibitions against interracial marriage, to list just three of the many possibilities.

Instead of these or other better-known landmarks of American constitutional law, Warren cited Baker v. Carr, the court’s 1962 ruling on reapportionment, redistricting and gerrymandering that established the doctrine of “one man, one vote”—the principle, as elaborated in subsequent decisions from the early 1960s, that state and congressional electoral districts (whether rural or urban) must be roughly equal in population to ensure that individual voters have an equal voice in selecting their representatives. In so ruling, Warren and a majority of his colleagues held that redistricting claims were subject to judicial review under the 14th Amendment’s Equal Protection Clause. In the process, they overturned long-standing legal precedent that had held redistricting was a “political question” beyond the jurisdiction of the courts.

As Warren explained the significance of the principle to McClatchy: “If everyone in this country has an opportunity to participate in his government on equal terms with everyone else, and can share in electing representatives who will be truly representative of the entire community and not some special interest, then most of the problems that we are confronted with would be solved through the political process rather than through the courts.”

In addition to outlawing straightforward geographic gerrymandering, the Supreme Court has also proscribed “racial gerrymandering”—the practice of purposely designing electoral districts to dilute the voting power of minorities by either “cracking” or spreading minority voters across a state to diminish their relative strength, or by “packing” minorities into a few concentrated districts to drain their influence in other parts of the state.

Still, as decisive as the many geographic and racial reapportionment rulings of the Supreme Court since Baker have been, the court has waffled on the equally critical issue of partisan gerrymandering—the act of mapping electoral districts so as to entrench the majority political party in power. Indeed, the Supreme Court to this date has never overturned a state electoral map on grounds of partisan overreach.

In a series of cases over the past 30 years, the court has grappled with two vexing issues in this context: First, whether the judiciary should steer clear of the question of partisan gerrymandering (a portmanteau coined after salamander-like voting districts created by Massachusetts Gov. Elbridge Gerry in 1812 to give an advantage to his Democratic-Republican Party), and leave partisan decisions in the hands of state legislatures. And second, assuming that there is jurisdiction, whether there are any manageable objective standards, short of requiring proportional representation (which the court has consistently rejected), that could enable judges to determine when partisan gerrymandering becomes so extreme that it is unconstitutional.

In Davis v. Bandemer, a case from Indiana, the court held in 1986 that judges may review claims of impermissible partisan gerrymandering, although it failed to find one existed in the Indiana scheme challenged in the case.

However, in 2004, in Vieth v. Jubelirer, a case from Pennsylvania, a plurality of four justices (one vote shy of a majority) purported to overrule Bandemer. The plurality opinion, written by Justice Antonin Scalia and joined by Justice Clarence Thomas, held that partisan gerrymanders are never subject to judicial review.

The Supreme Court will revisit both questions this term when it considers the case of Gill v. Whitford, a partisan gerrymandering challenge from Wisconsin. Set for oral argument Oct. 3, the case was brought in 2015 by a dozen Wisconsin Democrats who alleged that the redistricting plan enacted by the state Legislature in 2011 after the last census is unconstitutional because it systematically diminishes the voting strength of Democratic voters statewide.

In support of their claim, the plaintiffs marshaled a bevy of compelling statistics before a district-court panel of three federal judges who heard the case: In the 2012 election, the Republican Party received 48.6 percent of the two-party statewide vote share for Wisconsin General Assembly candidates but won 60 of the 99 seats in the legislative body. In the 2014 election, the Republican Party received 52 percent of the two-party statewide vote share and 63 Assembly seats.

The plaintiffs argued that such disparities not only diluted their voting power in violation of the 14th Amendment’s guarantee of equal protection, but that it also undermined their First Amendment rights as it subjected them to disfavored treatment because of their political views.

By a 2-1 vote, the district court panel agreed and invalidated the Wisconsin General Assembly map. To reach its determination that an impermissible partisan gerrymander had occurred and to provide the long-sought objective measure of extreme partisanship, the panel relied on a new and wonky mathematical formula for calculating voting asymmetry between the two major parties, called the Efficiency Gap (EG).

Devised by University of Chicago law professor Nick Stephanopoulos and researcher Eric McGhee, the EG applies to both state and congressional races and is nonpartisan in nature. As explained by an Associated Press study, EG theory compares the statewide share of the vote a party receives in each district with the statewide percentage of the seats it wins. It then measures “wasted votes,” which it defines as all those cast for a losing candidate as well as those cast for the winner above 50 percent.

When the two parties waste votes at an identical rate, a redistricting plan’s EG is zero. According to EG theory, a state-legislative plan with an EG of 7 percent or more is presumptively unfair, resulting in overrepresentation of the majority party. A congressional redistricting plan with an EG of more than two seats is considered suspect. The district-court panel in Gill found that the EG in the 2012 Wisconsin assembly race was 13 percent in favor of Republicans and that the EG in 2014 was 10 percent in favor of the GOP, well over the operative thresholds.

The importance of EG theory for the future of major-party politics in America cannot be overstated. According to the Brennan Center for Justice: “In the 26 states that account for 85 percent of congressional districts, Republicans derive a net benefit of at least 16-17 states in the current Congress from partisan bias. This advantage represents a significant portion of the 24 seats Democrats would need to pick up to regain control of the U.S. House of Representatives in 2018.”

The AP study concluded that a similar, distorted electoral landscape has taken shape for state races, not only in Wisconsin but also in North Carolina, Pennsylvania, Florida, Virginia and elsewhere.

Could Gill v. Whitford provide the approach to partisan gerrymandering that the Supreme Court has sought? Many observers, including Justice Ruth Bader Ginsburg, the 84-year-old doyen of the court’s four-person Democratic minority, consider Gill the most important case of the tribunal’s upcoming term, even ranking above the Trump Muslim travel ban appeal the court will also review in October.

But while Gill’s blockbuster potential is undeniable, it is doubtful that the current court—with Neil Gorsuch, rather than Merrick Garland, filling the vacancy created by Scalia’s death in February 2016—will produce an opinion favorable to Democrats. Like Scalia, Gorsuch is a committed “originalist” in judicial philosophy, and that bodes ill for acceptance of EG theory.

Scalia’s plurality opinion in the Vieth case was a paean to originalism and the view that partisan gerrymandering is off-limits to the courts, regardless of the mathematical standards used to identify and quantify it. Justice Thomas signed on to that opinion. And just last term, in a racial gerrymandering case from North Carolina (Cooper v. Harris), Justice Samuel Alito authored a dissenting opinion, joined by Chief Justice Roberts as well as Justice Anthony Kennedy, which asserted that unlike the racial variety, purely political gerrymandering is a “traditional domain of state [legislative] authority.”

Although Kennedy has also taken the position in the past that political gerrymandering could be a proper subject of judicial scrutiny if sufficiently blatant, he voted in June, along with Alito, Thomas, Roberts and Gorsuch, to stay the district court’s ruling in Gill pending full review of the case.

That review is about to take place. How the court ultimately rules will determine whether the legacy of Earl Warren on reapportionment will be honored and extended or brought crashing to an unceremonious close.

By Bill Blum/truthdig

Posted by The NON-Conformist

What, Exactly, Were Russians Trying to Do With Those Facebook Ads?

From what we know now, it was too small to seriously influence the election, but too big to be an afterthought.

Sheryl Sandberg shrugs.

Many questions remain about the ads purchased by Russian-linked accounts during the 2016 presidential election.

Earlier this month, the company announced that Russian-linked accounts had purchased $100,000 worth of advertising.

The scale of this advertising buy is mysterious. In an election where billions of dollars were spent, why even bother to spend $100,000? It seems like a drop in the bucket, but also more than nothing. For comparison, in 2015 and 2016, all campaigns directly paid Facebook a collective $11,313,483.59 across all races, according to Federal Election Commission numbers. The Trump campaign paid Facebook $261,685 directly for ads. But those numbers are only lower bounds for the amount of money spent on Facebook because many campaigns pay consultants, who then purchase ads on their behalf. (For example, Cambridge Analytica, which worked with the Cruz and then Trump campaigns, took in $15.4 million during the cycle, including $5 million in one payment from the Trump campaign on September 1.)

So, the Russian ad buy is a significant Facebook purchase, but not one that seems scaled to the ambition of interfering with a national U.S. election.

That could be because: 1) Not all the ads have been discovered, so the $100,000 is a significant undercount. 2) That was the right number, and the ads worked to aid distribution of disinformation. 3) The ads were part of a message-testing protocol to improve the reach of posts posted natively by other accounts. Think of it as a real-time focus group to test for the most viral content and framing. 4) That $100,000 was a test that didn’t work well, so it didn’t get more resources. 5) That $100,000 was merely a calling card, spent primarily to cause trouble for Facebook and the election system.

Full story by ALEXIS C. MADRIGAL/TheAtlantic

Posted by The NON-Conformist

NFL Owners and Executives Who Protested Donald Trump Are the Biggest Hypocrites Yet

AS 3.5 MILLION AMERICANS languished without power in Puerto Rico this weekend, President Donald Trump turned his attention instead to NFL players who had decided to take a knee during the national anthem to protest injustice, bigotry, and police brutality in the U.S.

“Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son of a bitch off the field right now. Out! He’s fired. He’s fired!’” the president bellowed at a rally for a special election in Alabama. The owners who fired players, Trump said, would quickly be among the most popular men in America.

Trump directed some of the harshest words of his presidency not at ascendant neo-Nazis or even opposition politicians, but peaceful NFL stars, many of them black, taking a knee to bring attention to a cause they care about deeply. What makes this so unique is that it wasn’t a Joe Biden hot mic moment: It was an intentional attack on free speech.

The outrage was instantaneous. Athletes and entertainers expressed their disgust. Soon, the remarks became a national, and even international, discussion.

Then came Sunday. It was the largest single day of protest in NFL history. Instead of Colin Kaepernick taking a knee, 19 teams had about 200 players who participated in protests of some kind; many took a knee or had a seat during the national anthem. Three teams opted not to come out for the anthem at all.

And they weren’t alone: The protesting players were joined by owners, some of whom even decided to go down to the field to lock arms with their players as a form of solidarity. Front offices from team after team blasted Trump’s words at the Alabama rally in official press statements and tweeted infographics — all saying some version of how much they disagreed with Trump’s divisive tone or rhetoric.

And that’s where we have to pause.

The popular demands on NFL executives and owners to speak out against Trump seem strange. Most NFL owners and general managers are unknown to your average American. But here’s the thing: What Trump said about NFL players who take a knee during the national anthem was hardly different from what NFL owners have not only said, but actually done to Kaepernick.

And the team executives have been public about their feelings, though only while hiding behind the cloak of anonymity. Mike Freeman, of the sports site Bleacher Report, has been reporting on the intense hatred among NFL team front office employees.

One general manager told Freeman, of Kaepernick, that he estimated a clear majority of NFL front offices “genuinely hate him and can’t stand what he did” — kneeling for the national anthem. “They want nothing to do with him. They won’t move on.” The same general manager went on to say that many of the other teams’ executives were afraid to put Kaepernick on their roster because “Trump will tweet about the team.”

And that general manager was not alone. Another front office executive called Kaepernick “a traitor.” Yet another said, “He has no respect for our country. Fuck that guy.” Another executive said he would think about resigning his position if a team owner asked him to sign Kaepernick. One general manager summed up the feeling among NFL team executives: “In my career, I have never seen a guy so hated by front office guys as Kaepernick.”

All seven team executives interviewed by Freeman for one piece said they believed 90 to 95 percent of NFL front offices agreed with their harsh takes on Kaepernick. One even said Kaepernick was the most hated player since Rae Carruth, who is still in prison for plotting to murder his pregnant girlfriend.

Most of the comments came a year ago (and some this spring). What those team executives predicted has come true: Not a single team has signed Kaepernick, not even for the league minimum, not for a backup or third-string position. Kaepernick didn’t even get the chance to audition his skills in a workout. Even those teams who desperately needed a starter or an experienced backup, in the words of Minneapolis sportswriter Jim Souhan, “decided that they prefer comfortable losses to uneasy victories.”

Kaepernick has been effectively banned from the NFL by owners and management who hate his guts like they do traitors and murderers.

That’s why what happened yesterday was perplexing. Some of the team owners showing solidarity with their players had made million-dollar donations to Trump’s inaugural committee, knowing full well where he was coming from. And many of the same team executives who were releasing statements and locking arms in support of players have shown their own disdain for Kaepernick — some, presumably, were the same ones who trashed him to Bleacher Report, others simply failed to show Kaepernick solidarity by refusing to give him a shot at playing again.

Trump learned his disdain for protesting players from them. Way before he called protesting players sons of bitches, the team executives were saying, fuck Colin Kaepernick.

Never mind that Aaron Rodgers and Tom Brady, the two best quarterbacks in the game, say Kaepernick should be in the league. Never mind the fact that some teams are still winless with quarterbacks who are struggling through every single quarter. Before Trump said a single word in Alabama, those teams had already shut Kaepernick out.

What the NFL players did yesterday was genuine — real solidarity with one of their own. But what most of those team owners and general managers did was marketing. It was, in the words of ESPN’s Howard Bryant, “performance art.” It looked and felt real, but was as counterfeit as a $3 bill. These owners and general managers put on a beautiful show yesterday, but as long as Kaepernick, in the prime of his physical career, is unemployed, they clearly lack the courage of their convictions. Kaepernick should’ve been on the field yesterday.

In March, one general manager told Bleacher Report’s Freeman, “I think some teams also want to use Kaepernick as a cautionary tale to stop other players in the future from doing what he did.” Despite the owners and managers, they failed. This much is clear: Colin Kaepernick’s quiet bravery has sparked a movement that refuses to die.

By Shaun King/TheIntercept

Posted by The NON-Conformist

Stingray tracking of cellphones unconstitutional without a warrant – US court

A federal court has ruled that police must obtain a warrant before using Stingray tracking devices to locate a suspect via their cellphone signal. Civil rights groups argue that such tools also violate the rights of innocent bystanders.

In a 2-1 decision Thursday, the US Court of Appeals for the Fourth Circuit ruled that law enforcement’s use of cell-site simulators to track an individual’s cellphone without a warrant violated the US Constitution, specifically the Fourth Amendment.

The ruling comes from a lawsuit filed by Prince Jones, who was found guilty of sexually assaulting two women and stealing their cellphones at knifepoint in 2013.

Officers with the Sexual Assault Unit of the Metropolitan Police Department (MPD) were able to locate Jones using a cell-site simulator, a device that acts as portable cell phone tower. The most common of these products is called a Stingray. Able to intercept signals from any cellphone, police triangulate the location of a suspect, collect metadata from cellphones, and even record the contents of communications.

View image on Twitter

Stingray: “Cell-site simulator surveillance” infographic via @EFF ht @jsundmanus

“One consequence of this is that locating and tracking a cellphone using a cell-site simulator has the substantial potential to expose the owner‘s intimate personal information,” the court stated. “A cell-site simulator allows police officers who possess a person‘s telephone number to discover that person‘s precise location remotely and at will.”

 

Jones argued that by using these devices, police violated his Fourth Amendment rights that protect against unreasonable search and seizure.

The defense argued that since a cellphone “‘must continuously broadcast a signal,’ a person who carries or uses a cellphone is engaging in ‘conduct [that] is not calculated to keep [his] location private and… thus has no reasonable expectation of privacy in his location.’”

However, the court found that argument “unpersuasive.”

“A person’s awareness that the government can locate and track him or her using his or her cellphone likewise should not be sufficient to negate the person‘s otherwise legitimate expectation of privacy,” the ruling states.

The court found that the “government’s use of the cell-site simulator to locate Mr. Jones was, therefore, a search,” and since the government did not obtain a warrant, the search was “unlawful under the Fourth Amendment.”

Civil rights groups also argue that these devices are “amplifying the Fourth Amendment concerns,” because they indiscriminately gather signals from every other cell phone in the area, not just a single suspect’s phone.

The American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) said in a friend-of-the-court brief that when police used the cell-site simulator to locate Jones, it was “impossible to know how many people were affected.”

“This is so even when the government is using a cell-site simulator with the intent to locate or track a particular suspect; collection of innocent bystanders’ phone-identifying data and location information is an inherent feature of current cell-site simulator technology,” the civil rights organizations said.

In 2016, the House Oversight and Government Reform Committee released a report that found the Justice Department and the Department of Homeland Security had spent a combined $95 million on 434 cell-site simulators between 2010 and 2014. Additionally, DHS provided more than $1.8 million in grant money for local law enforcement to purchase cell-site simulators, with the cost of an individual device ranging from $41,500 to $500,000.

“While law enforcement agencies should be able to utilize technology as a tool to help officers be safe and accomplish their missions, absent proper oversight and safeguards, the domestic use of cell-site simulators may well infringe upon the constitutional rights of citizens to be free from unreasonable searches and seizures, as well as the right to free association,” the report said.

Under former Attorney General Eric Holder, the Department of Justice issued a policy directive in 2015 that said: “law enforcement agents must now obtain a search warrant supported by probable cause before using a cell-site simulator.” However, the policy was never written into law and could be reversed in the future.

From Russia Today

Posted by The NON-Conformist