WordPlay - Populism, Problems, and Solutions

Understanding the Independent State Legislature Theory; the 2000 Presidential Election Revisited

There is madness abroad in the way American elites think about their government and their institutions, the epicenter of which is an understanding (or misunderstanding) of the word 'democracy'. Recently, an Atlantic Monthly staffer named Barton Gellman published an article - How Six States Could Overturn The 2024 Election - in which all the confusion and cognitive dissonance is encapsulated. The article is a critique of the 'independent state legislature doctrine', or ISL,  i.e., the notion that Article I, Section 4, clause 1 and Article II, Section 1 (the Elections and Elector clauses of the United States Constitution) collectively entrust the procedures for the choice of Presidential exclusively to the legislatures of each State, and no other State institution or agency. Gellman, ignoring basic civics, creates a parade of horribles fallacy out of this, envisioning a scenario in which runaway Trumpian legislatures take absurd and bizarre actions in defiance of their own constitutions and common sense. Gellman characterizes this potential as 'undemocratic'. Quite apart from the reality that legislative acts are the core energy of democracy, that they are democracy itself, Gellman's touchingly naive faith that the electoral process is better entrusted to the judiciary or the executive is typical of the elitism that has become the scourge of the Democratic Party.

In fact, recent history provides a rip-snortin' example of why the ISL Doctrine makes a good deal of sense. This would be the notorious controversy over the 2000 Presidential election, centering on the counts and recounts of the Florida vote. (Gellman, whose history is as myopic as his civics, chose to ignore this.) Gellman is incorrect to intimate that the ISL Doctrine is a comparatively recent fad. It actually was cited in two of the US Supreme Court cases that were issued in the case. It is entirely possible that academic interest in the ISL Doctrine began with concern about the way events in that developed, particularly the usurpation by the Florida Supreme Court of the entire election procedure. 

A number of controversial judicial cases arose out of the confusion. However, to the extent possible, I'm going to avoid commenting on these or the underlying jurisprudence. This post is about the ISL Doctrine. In that context, let's review events. As the whole world knows, the Presidential election of 2000 ended on November 7th, 2000, with the two candidates, George W. Bush and Albert ('Al') Gore, in a virtual deadlock. The outcome turned on the electoral college votes of Florida, in which the balloting showed Bush ahead by a few hundred votes - a true statistical tie. Florida had at that time an elaborate statutory scheme that governed elections and included provisions for contested and protested elections. (Ch. 97-106, Laws of Florida.) These provided plain vanilla procedures to contest and protest elections in a timely manner, with a great deal of authority entrusted to county election boards and the Secretary of State. Losing candidates could initiate a protest at the county level and had the right to a recount by right if the margin of victory was too thin.

Thes rights, however, were in the context of tabulation - correct counting of ballots on hand.  In this context the statures did contain provisions that directed the boards to do their best to ascertain voter intent in the case of damaged or defective ballots. However, this had to do with recounting. Candidates did not have a right to have every vote counted. They did have a right to a correct count of the votes that could be counted, with some reasonable discretion granted to canvassing boards to determine which, if any, defective ballots should be included. The statutory scheme contained no provisions for correcting voter error as such. There was nothing unusual in the Florida statutes in that regard. It's a nearly universal rule in the entire Western world and throughout history. Even in the most generous participatory democracy, individual citizens are entrusted with certain basic responsibilities. One of them is to furnish a ballot in good form to the polls. If the voter fails to do so, the ballot isn't counted.

Even this modest discretion entrusted to local canvassing boards in Florida was sharply limited by the requirement that the vote tabulations, counted or recounted, be submitted to the Secretary of State of Florida within seven calendar days of the election. In the year 2000, that was November 14th. At that point, the losing candidate could choose to contest (as opposed to protest) the election, and conventional litigation might commence.

This would not do for Al Gore. In the context of the overriding goal - winning the election - the plum dumb statutory remedies off provided little love. The problem with demanding a conventional recount was that the vote had been properly tabulated the first time. Thus, the statutory recount to which he was entitled resulted in miniscule changes that did not affect the outcome.  Gore's only chance lay in the possibility that an examination of the totality of the fouled ballots might produce enough margin in his favor to alter the result. That the Florida statutes did not provide any such remedy for a defeated candidate, that no challenge on that basis to an election result had ever been made in the United States (or anywhere else, to the best of my knowledge), did not deter him from mounting a challenge on that basis.

 From the outset, Gore began phrasing his challenge to the result in moral language, the language of right, the implication that something was wrong because the fouled ballots hadn't been tabulated. (They had been counted.) 'Every vote should count', was the mantra, confusing the term 'vote' with 'ballot', though they are not the same thing. Never mind that no one knew exactly how such ballots would be counted, never mind that there was no guidance from statute, administrative procedure, or case precedent. Above all, never mind that no such right exists, and the Florida statutes were beyond any rational legal attack.

Ah, beyond rational attack - therein lies the rub. They were beyond rational attack, but not beyond raw value judgments. The immensely partisan Florida Supreme Court (seven liberal Democrats) agreed with Gore's contentions. In two epic decisions, one issued on November 21 and the other on December 8th, the Florida Supreme Court completely trashed the statutory scheme that had been in force in Florida for more than a century. The first decision obliterated the time limits set by the statutes, and in particular the requirement that the counties certify their vote tabulations by seven days after the polling (November 14th). The administrative authority entrusted to the Secretary of State was completely ignored. The second decision wiped out the discretion of the county canvassing Boards with respect to fouled ballots. They were now MANDATED to interpret all the fouled ballots statewide. 

On what basis? What was the interpretative or Constitutional problem that justified the Florida court's intervention?

Search me.  I don't know. No one does. I promised at the outset not to analyze the legal reasoning behind these decisions. But that's an easy descent to avoid in these cases. There was no legal reasoning worthy of the name - simply a lot of declamation of the noble purposes of the Florida Constitution, the rights of man, the importance of democracy, and so on. But worse than that, there was not even a nod to practicality. The Court in its order on December 8th ascended into Cloud-Cuckoo-Land, that wonderful world of frictionless ball bearings that too many appellate courts inhabit. Some 60,000 plus suspect ballots were to be reviewed. By what standard? No one knew. The various Florida counties had used three different standards. The Court didn't even try to choose between them. But somehow one would be selected, the ballots would be interpreted, all disputes were to be resolved (how? there was no procedure), and the results certified to the Federal authorities . . . all in five days. This wasn't simply impractical. It was flat out impossible. Even more impossible is the notion that all this could be accomplished while preserving an audit trail, such that the result could be confirmed by independent analysis to a disappointed candidate.

What this exercise in judicial insanity would have produced, if left to stand, was the greatest cluster f--k in US history, worse than the elections of 1800, 1824, and 1872 combined. The recount on the incredible terms ordered by the Florida Supreme Court could not possibly have been completed by the date when results had to be certified to the Electoral College. (The Court actually implied a partial recount would do, as if the public or any candidate would accept that.) If Bush was not still in the lead, the Florida legislature would almost certainly have responded with the nomination of its own slate of electors. The near result would have been an unguided excursion through a jungle of untested statutes and regulations, without the North Star of any tradition or precedent to steer by. The ultimate result would have been a crippled Presidency no matter who ultimately took office. (Anyone interested in exploring the full dimensions of the chaos the Florida Supreme Court was inviting into the electoral process of a US Presidential election is invited to look up Richard Posner's exhaustive - and exhausting - discussion of the subject in Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts [2001]).

I remember hearing Justice Sandra O'Connor, during the oral argument before the US Supreme Court concerning this mess, plaintively asking what was wrong with the old statutes? Why were we even doing this? A good question - in fact, the basic question, which leads us directly to the Independent State Legislature Doctrine. There was nothing wrong with the Florida statutes - no cognizable Constitutional challenge, no ambiguity, nothing. The only problem was the outcome. As much as the personal values of many activist judges lean otherwise, 'I-think-I-know-better' is not synonymous with 'unconstitutional.' (There is also a meta-legal principle - you do not change the election rules AFTER the ballots have been cast - that the Florida Supreme Court completely ignored.)

This naked seizure of power undertaken by the Florida Supreme Court violated the United States Constitution. That charter delegates the right and power to decide on the methods of selecting electors to the elected legislatures of the various States, and not the judiciary, which may not be elected by anybody. The Florida debacle could not illustrate the wisdom of the Constitution more concretely. Election procedures should be thoughtful, rational, simple, time-tested, and systematic - a statutory framework, in short. The essence of litigation, even in a court of final appeal, is doing justice to the individual litigants before the court. The creation of working systems of administrative law is a complex, practical task not consistent with the judicial function. That's the reason why appellate courts should avoid making law. 

Gelman in his article conjured up an entire parade of horrors that might be perpetrated by Trump-dominated legislatures seeking to ensure particular election results. (The notion that a Democratic dominated State Supreme Court could create its own spectrum of horror never occurred to him, even though that actually happened within recent memory.) Forgetting his basic civics, he conjures up a legislature that acts without any restraint of law at all. That's nonsense. A state legislature takes its power from the state constitution that enables it. There's a word for a group of men that acts as a body without the sanction of law. It's called a mob.

So there is an inescapable role for the judiciary with respect to the Independent State Legislature Doctrine, all the parade-of-horribles nonsense to the contrary. The state court of last resort has the responsibility to resolve questions of law of either statutory or Constitutional dimension. That's axiomatic. The legislature has to act legally and constitutionally, and the determination of those questions is left to the State courts. But, as the whole world knows, there is no bright line distinction between a restrained interpretation of Constitutional law, and a naked power grab. The big question is who makes that basic determination. That's what would change by adoption of the Independent State Legislature Doctrine. The general rule of law is that a State court of final resortis the ultimate authority with respect to the laws of that State. But in this one unique instance, Article I, Section 4 clause 1, Article II, Section 1 (read collectively) and the Supremacy Clause of the United States Constitution confer ultimate power on the United States Supreme Court. A State Supreme Court that finds a state constitutional infirmity in the legislative scheme enacted by the legislature can and should exercise its authority to correct it. But it had better be damn sure that there actually is an infirmity and not a substitution of judicial wisdom - or partisan interest - for legislative.  In the latter case, it might be reviewed and reversed by the United States Supreme Court.

That's what should have happened with respect to the direct seizure of power undertaken by the Florida Supreme Court in 2000. The orders of that Court were twice reviewed by the United States Supreme Court. In the first case, which resulted in a simple remand, seven of the Justices alluded to the Independent State Legislature Doctrine. In the second case, the more famous one that ended the madness, three of the nine justices (Rehnquist, Scalia, and Thomas) would have vacated the order of the Florida Supreme Court on ISL grounds. Logically, that's actually the way the case should have ended logically - vacate the absurd orders of the State Court on that basis, affirm the legitimacy of the statutory scheme that the lower court had arbitrarily trashed, direct the Secretary of State of Florida to perform the duties entrusted to her by statute, and go in peace. Everything ends logically, consistently, and on a sound Constitutional basis.

But events had moved rapidly, and a plurality of the Court was not ready to confront and overturn a legal principle as encrusted in tradition as the authority of a State Supreme Court over its State Constitution. Although seven Justices would have set aside the order of the Florida Supreme Court, the ultimate decision was 5-4, on the basis of an equal protection of law theory that is not entirely satisfying. (The other two who agreed that the lower court decision was unsound would have remanded the matter back to the Florida Supreme Court for clarification. Digressing for a moment, if the decision of the Florida court was otherworldly, the notion that the matter should be remanded for further clarification - with time running out and chaos in a Presidential election threatening - is out there in some intergalactic region. Rearranging deck chairs on the Titanic is an inadequate metaphor. Insisting that the seats in the lifeboats be upholstered and prohibiting anyone from getting into them until the upholstery was properly done - because, after all, who wants an uncomfortable seat in a lifeboat? - is closer. )

But the damage had been done. Thanks to the activism of the Florida Supreme Court, the myth persists to this day in Democratic circles that the United States Supreme Court gifted the 2000 election to George W. Bush on a partisan basis. Never mind that every tabulation of the votes, including the cold-blooded audit done by the Miami Herald months after the fact by the Miami Herald, showed Bush the winner by various margins, which is the way elections are actually decided. (It would be more accurate to say that the United States Supreme Court deprived the Democratic Party of the opportunity to steal the election on behalf of Gore.) But more than that, to get to the essence, Gore lost the election on the night of November 7th by the votes tabulated in accordance with the unobjectionable statutes governing Florida elections. That's where the matter should have begun and ended. Everything that followed was bewildering, confusing nonsense. The intrusion of the State Supreme Court transformed the election into a litigation, a judicial contest, and that was a shame and a travesty.

Barton Gellman is right to be afraid of legislatures doing foolish things. However, the entire foundation of the United States Constitution is built on distrust of government institutions or agencies doing foolish things. Any public institution can go badly, badly wrong. But if we have to trust one, legislatures are the best, as they are the ones most sensitive to public will. That was certainly the belief of the Founding Fathers. That makes a lot more sense than permitting the intervention of an unelected judiciary or a rogue governor, which might be equally partisan, but much further removed from public control. In any case, an article that conjures up a bevy of possible nightmares that the Independent State Legislature Doctrine could produce, while ignoring the nightmare that actually did occur only two decades ago, when an activist and partisan court came racing into the fray, is a little one-sided.

I will finish with a coda. On December 22, when all the smoke had cleared, all the adrenaline was gone, all the hormonal energy diffused, the Florida Supreme Court issued the third and last of its orders in the Gore case, dismissing the remand from the Supreme Court in a short, per curiam opinion. The electors had been certified, the count was now official, and George W. Bush was the next President of the United States. Nothing was at issue any longer. The Florida court explained the rationale of the dismissal in a couple of brief paragraphs.

Moreover, upon reflection, we conclude that the development of a specific, uniform standard necessary to ensure equal protection and to secure the fundamental right to vote throughout the State of Florida should be left to the body we believe best equipped to study and address it, the Legislature.

Exactly right, and a fairly good short exposition of the reason for the entrustment of these issues exclusively to the legislature, the Independent State Legislature Doctrine.

Wisdom that came to that court just a little bit late.

 

The Difference Between Judicial Conservatism and Political Conservatism - A Primer

It's apparent from the deplorable reaction of the media elite to the extraordinary Supreme Court decisions that ended the 2022 term that many of them misunderstand the difference between political conservatism and judicial conservatism.

Political conservatism is a philosophy pertaining to public policy that it seeks actively to implement by government or social action.

Judicial conservatism is an entirely different animal. The central tenet is that the making of social policy is not - or should not be - the province of the judiciary, that social policy is the business of legislatures. Judicial conservatives may be political conservatives, but if they are true to the philosophy of judicial conservatism, they do not implement conservative public policy. 

The pundits misunderstand the difference. Thus, you have otherwise sensible individuals asserting that the Supreme Court (in Dobbs v. Jackson Women's Health Organization) banned abortion nationally. Nothing of the sort - as the last paragraph of Alito's opinion for the majority, the opinion returns the issue to State legislatures, i.e., to the people. The decision is not itself activist. What it did was reverse one of the most jurocratic decisions in United States history. That's what judicial conservatism actually is - a refusal to make policy in arenas that are properly the subject of popular decision making.

As the Democratic elites are beginning to realize (and should have known from the outset), politically, the decision is very bad news for the GOP. It's the gift that keeps on giving. For years, Republican politicians have proposed, and even enacted, statutes about concerning abortion that are totally at odds with actual public attitudes, confident that they'd never have to put their money where their mouth is, because of Roe. But the reality is that a sizable majority of the public firmly believes in an unconditional right to abortion in the early stages of pregnancy, with increasing reservations as the pregnancy proceeds. That's pretty much the pattern of law throughout the entire Western world. The Republican Party is likely to pay a high price for all the blathering it has engaged in over the years, free of charge thanks to Roe. Now the piper has to be paid.

The shrill cries that the Supreme Court has become an undemocratic institution making its own brand of public policy just won't fly. Even the First and Second Amendment decisions, in which the Constitution requires the Court venture into the realm of social policy, are severely limited. The gun case, New York State Rifle and Pistol Assn, v. Bruen did not target gun regulation so much as regulation that conferred unlimited discretion on licensing authorities. New York and other States have responded accordingly. Kennedy v. Bremerton School District turned on the personal and private nature of the coach's activity, though a number of commentators have disgraced themselves by asserting that the football coach used an element of coercion with respect to his players. (If he had, the case would be Constitutionally trivial.) That factual element was conspicuous by its absence in the lower court proceedings, and only imported into the record by the school district at the appellate level when the awkwardness of its position began to become apparent. What it means as a practical matter is that the Bremerton case is limited to its facts.

Alexander Hamilton famously described the judiciary as the 'least dangerous branch of government'. Judicially conservative courts actually conform to that description. The real complaint of media elites is not that courts are making policy, but that they are not. Liberal policy makers, some of which I support, are actually going to have make their case before the people, rather than friendly judges. Horrors.

Madrid v. New York - Covid

Stop-and-Frisk - Simple Solutions (I)

My attitudes about stop-and-frisk and other police practices in which privacy and security are balanced in various ways was permanently influenced by a case that arose in Illinois during the 70's, my public defender days - too long ago to provide a link, alas. It seems that a housing project in Chicago grew so frustrated by gang violence that the tenants, acting through a management committee, voted to require as a term of the lease that implicit consent to premises search be granted, so that the police could search for weapons.

And who objected to the inclusion of this provision? None of the tenants. The ACLU filed suit. None of its members lived in the projects. They all lived in Evanston or safe parts of Chicago. But they couldn't stand by and let the uninformed tenants of the project decide for themselves how to deal with gangs. So they filed suit, and as I recall, prevailed. The purity of the Fourth Amendment was preserved by a lot of outsiders who live in green; leafy suburbs far away from the actual issue. So it goes to this day.

Stop-and-frisk policy should not be made by the posters to this site, or the editors of the New York Times, or even the mayor of New York. What should happen is plebiscites in as small an area as practical, one, two, three city blocks. (I understand that most of the homicides in Chicago occur in a remarkably small area of the city, no more than a few square blocks.) If the residents of the area vote in favor - and the academics, the limousine liberals, the BLM advocates (most of whom are in the first two categories) are going to be amazed at how many do - you post the area with warning signs. 'YOU ARE NOW ENTERING A STOP-AND-FRISK ZoNE. PROCEEDING FURTHER CONSTITUTES IMPLICIT CONSENT TO SEARCH'.

One last thing - as city prosecutor, I'm going to announce that I am not going to prosecute drug offenses and the like that arise from the frisk - only weapons and related felonies.

And you include this plebiscite in EVERY election in the area, so the consent (or lack thereof) is constantly renewed.

Some issues defuse fairly easily - though not completely - if you look at them as problems and not talking points. I've described myself as a Populist in this and other contexts, but I for sure do not mean in the Trump or Boris Johnson mode. I mean I trust the common sense of the people to make sensible decisions for themselves. I trust them on this issue as well. 

David Leonhardt's Toxic Racialism

I receive daily email notifications of the columns David Leonhardt writes for the New York Times. The one I received a few days ago (linked here) could not have been a starker, more frustrating example of the compulsion so much of the intelligentsia to racialize every contemporary issue, even when that devolves into throat-cutting, shoot-yourself-in-the-foot politics and policy. 

The column was entitled 'How To Close The Racial Wealth Gap', and discussed various proposals to narrow the perceived inequality of wealth between Black and White.The article cited the fact that median wealth of a White family is $176,000 and went on from there. It is impossible to imagine an article or approach that missed the point more completely.

The major issue confronting our nation is the wealth gap, all right, but it is the gap between the ultra-wealthy - the 1% - and everyone else. It is not one that is defined by race. If wealth were distributed in any kind of proportional manner among the population, Leonhardt's approach might have some validity. But the distribution is in fact ludicrously skewed, which is why Leonhardt's racialism becomes irrelevant and even toxic. Let me illustrate.

Below is a simple 10x10 grid.

You will note that I have filled in the box on the extreme right. That represents the 1% who (per Thomas Piketty) now receive more than 20% of the GNP and almost certainly control an even higher percentage of the nation's accrued wealth. There is no question that they are predominantly Caucasian and Asian (er - the success of Asian ethnicity rather cuts across the racialization theme, but never mind), though there is a smattering of African-Americans. Ideally, the graph would show more continuum, becoming less and less dark as it spread out from the topmost right corner. But you get the idea.

The point is that the wealth differential that causes the racial gap isn't distributed ratably. It is concentrated in an extremely small fraction of the United States population, a fact Leonhardt either overlooked or chose to ignore.  The fact that the privileged 1% is not racially equal doesn't do anything for the millions of Caucasian families that stand outside the charmed area. They worry about how they're going to afford homes, educate their children, and resent bitterly the privileges that elite education and affluence provides the privileged. (Do Leonhardt and the other Democrats who meme this theme delude themselves that there's some sort of racial loyalty here? That struggling middle-class families console themselves with the thought that at least there are a disproportionate number of Caucasian families at the top? Are you kidding me? A disdain for elites of all kinds, and particularly the wealthy, has been a feature of American society from pre-Revolutionary days on.)

I can illustrate the point another way, with a thought experiment. You could close that median gap pretty quickly by elevating a small percentage of lucky African-American families into the charmed circle - those who win the lottery genetically, either with intelligence, athletic ability, charm and entertaining skills, or maybe the actual lottery. When we do that, we of course change the median as a matter of statistical fact. Hooray! Racial wealth has now been equalized! The 1% now contains the right number of African-American multi-billionaires.

Does Leonhardt think for a second this phantom equality matters to that huge majority of Black families left out? Not a jot. They have no more racial loyalty than the Caucasian families described above. What matters to them are the futures of their own children, their ability to maintain their own standard of living. African-Americans winning the billionaire war could matter less to them. It's still less than 1% of their number. It don't signify.

Leonhardt's column reaches the absolute nadir when he discusses a proposal of Cory Booker's for the issuance of baby bonds. I quote:

One political advantage of all of these ideas is that they are race-neutral: They disproportionately help African-Americans because the policies are economically targeted. 

Great, just great. Leonhardt is describing a program of general application that would have the effect of bolstering and maybe enhancing the endangered American middle class. Everyone who has given thought to the matter, from the Koch Brothers to Elizabeth Warren, would applaud that goal, even if they might have reservations about funding, administration, etc. But Leonardt can't champion a program of general application on its own terms. Instead, he has to find a racial or victimization hook to hang it on. Only then, as an afterthought, can he mention what should be the main point - that it helps society as a whole. You can only laugh or cry - I think of the New York Times joke headline:

World To End Tomorrow; Women, Minorities Particularly Affected.

But when you reflect on the implications to the big tent philosophy on which the Democratic Party used to pride itself, it isn't all that funny.

I'll drop the other shoe. If curing the racial wealth gap meant creating more ultra-rich and upper class African-Americans at the cost of reducing further the share of wealth of huge majority of Americans of all races, we would be going backward, not forward, in terms of the economic equality that actually matters. I do believe that Leonhardt and his ilk would probably agree with that proposition when put so starkly.  

But even so, he could not discuss the issue without finding a victimization hook. Heaven forfend we should actually discuss social action that benefits the larger fraction of society without regard to race, gender, or social status. (Why, some of them might even be Trump voters!) Even articulating an issue in big tent terms is secondary if it is possible at all. This one column could stand as a metaphor for the dilemma of the Democratic Party.

, 

 

Solutions - Mass Murder

A friend of mine asked me about solutions to the plague of mass random shootings.

You can begin by defining the problem correctly. The vast majority of guns and gun owners pose no risk of mass violence. The problem arises when (a) a small fraction of weapons capable of mass killing come into the possession of (b) an even smaller fraction of social misfits/terrorists who intend to use them for an act of mass murder. Defined that way, you don't need a massive regulatory overhaul or the repeal of the Second Amendment or anything that drastic. What you need is to create some methods to prevent (a) the use of those weapons, and/or secondarily, (b) the ownership of them by sociopaths. That should be doable without turning the word upside down. I'd like to ban them altogether, but I don't think that's doable given the present cultural war.

So we have to bell the cat. But how do we do that?

(1) The first idea is not to ban assault weapons as such, but - relying on the 'well-regulated' language in the Second Amendment  - to license them, and to require an extended course of education, comparable to driver's ed,  before the license is issued. I'd contract out that education to private parties, including the NRA,  with defined statutory minimum criteria  and number of class session, and subject to local police supervision. Inclusion of the NRA meets a number of its policies, which emphasize education, training, and socialization.

This may seem plain vanilla, but it isn't. Most of these shooters are profoundly anti-social. The requirement of education, attendance in a class, exposure to other classmates, and an instructor are real inhibiting factors. So is passing a written test. Moreover, it gives conscientious instructors an opportunity to observe behaviors and attitudes. Someone who exhibits a lot of questionable behavior might not get his license. He'll have to content himself with a handgun. How sad. My heart bleeds.

So far, so non-controversial. The next isn't.

(2) I'm going to use social media to create watchlists. We use them for air flight, and there is not the slightest reason not to use them in this context. You own an assault weapon, you're on one. You publicize manifestoes with Nazi or jihadist language, etc., you're on another one, a bit more exclusive. And if in addition you fall into certain profiles - young, male, suburban, unemployed, etc. - you fall into a third. You might just get a police call, what's known in the profession as a 'knock-and-talk', to be sure everything is on the up-and-up. That's actually the essence of good community policing.

So why isn't this the most unAmerican thing you ever heard of? Because - like no-fly lists - this isn't going to be secret at all. If you end up on a watchlist, you'll have a due-process right to challenge the inclusion and have your name excluded. Of course you can always divest yourself of the weapon and be de-listed at once.

(3) Finally, if you accumulate more than a certain number of these weapons, i.e., assemble an arsenal, the assemblage will be subject to periodic inspection.. These are potentially public nuisances, and they should be subject to periodic inspection (something like a building inspection) to be sure they are being stored and maintained safely. This is the Sandy Hook provision - I'm damned if society is obligated to allow some idiot parent to purchase a gargantuan number of lethal weapons, store them on the same premises as her disturbed autistic son, and the rest of the world has to stand by and trust her judgment. No way. She can content herself with a Glock (poor dear) and pay for storage elsewhere, or not buy them at all.

Lest any of you think this is 1984 scary, this is EXACTLY the same kind of protocol we have been using for terrorists since 2001, with some controversy, but basically public acceptance. (Do any of you disapprove of no-fly lists? Possession of an AK-47 is far more sinister than boarding an aircraft.) The difference from Gestapo/KGB lies in (a) the due process and transparency, and (b) much more important, what triggers all this concern isn't your world view, no matter how scary racist or totalitarian it may be. What triggers all this machinery is possession of a weapon that is potentially useful for mass killing.

None of this is difficult. We could do it all tomorrow. Instead, we will get all kinds of partisan and cultural attacks. There are millions of good quiet Americans of all races and backgrounds who do not feel comfortable and safe without a handgun at home, safely stored and with no conceivable potential for mass violence. Threaten even indirectly their right to that possession, and they will stand up for assault weapon possession, despite all their misgivings, for 'slippery-slope' reasons. They're more scared of cultural bigots than sociopathic assailants, which is sad, and wrong (in my opinion), but understandable. In proposing solutions, you take people as they are, not as you want them to be, and with tolerance for all types. So one step at a time. In proposing solutions, we want to eliminate that slippery-slope concern in the interest of consensus.

But we won't. Instead, the El Paso and Dayton incidents will become simply more sad and stupid chapters in the long running cultural war in this nation, ammunition for a different type of bigot than racial, the cultural kind. It has long been my cynical opinion that gun opponents (like climate control catastrophists) aren't really interested in solutions. They're interested in denunciations. The fun of moralizing, the illusion of moral superiority, is far more important to them than actually addressing the problem. 

The Stanford White Paper on Securing American Elections

The Stanford White Paper on Securing American Elections, published a few weeks, ago is an extremely disappointing presentation, to put it mildly. Summarizing, it focuses almost exclusively on Russian efforts to affect the 2016 election, ignoring other nations and individuals (George Soros). It is riddled with value judgments and naked partisanship. The suggestions for reform seem to have been made without any consultation with actual election officials and precinct workers - a problem with just about every comment or suggestion I have ever read on election reform. 

(1) Value Judgments, Moral Equivalence. I almost stopped reading early on when I came to this sentence:

Putin also contends that the United States uses overt military power to violate the sovereignty of other countries, a claim backed by empirical evidence, including most recently, Serbia (1999), Afghanistan (2001), Iraq (2003), and Libya (2011). (Page 1, emphasis added. I added the emphasis because the phrase makes clear that the authors view Putin’s contention as substantiated by ‘empirical evidence’.)

Seriously? Serbia 1999? That was the United Nations defense of Kosovo after a decade of 'ethnic cleansing' on the Balkan Peninsula, decried by the entire world. Afghanistan 2001? That was a reaction to 9/11, and the refusal of the Taliban to surrender Osama Bin-Laden and other Al-Qaeda responsibles. Libya 2011? That was a international effort, based on a United Nations Security Council resolution passed unanimously (Russia included) to prevent Libyan armed forces from massacring civilian rebels. Even the most controversial of the incursions, Iraq 2003, was undertaken on the basis of United Nations resolutions against a nation that was in cynical violation of a half-dozen United Nations resolutions passed in response to its various unprincipled acts of war and aggression. Saddam Hussein's Iraq was a rogue state, a tyrannical regime imposed on a reluctant people. A 'violation of the sovereignty of other countries'? One might say the same about the Second World War.

I have sometimes regretted coining the phrase ‘Demented Left’, and then a passage such as the one quoted reminds me of why I did it. Exactly none of the stated examples were violations of national sovereignty in the real politik sense. Three were United Nations actions, one (Afghanistan) was based on one of the most legitimate casi belli of recent times. Comparisons with Russian interference with neighboring states, unambiguously made in the interest of extending its national influence, and without any sanction of international law or opinion whatsoever, are farcical. Yet in its eagerness to avoid any taint of ‘American exceptionalism’, the authors of the paper engage in exactly that comparison. The blithe acceptance of this sort of false moral equivalence has robbed the American Left of most of its legitimacy in the last decades.

What a White paper written in that spirit had to offer was dubious. But I did go on. 

(2) Exclusive Focus on the 2016 Election. Nearly every example, every analog, is drawn from the 2016 election. The emphasis raises an obvious issue - would there have been any concern, would the study even have been written, had Trump not won the election? The authors likely would dismiss this thought with a condescending shrug. But it is their own single focus that causes the question to be posed.

This tunnel vision causes the authors to ignore completely some major problems posed by foreign presence in the United States communication system. One of the most important is the influence of outsiders on local elections. Obviously, the integrity of Presidential elections is extremely important. But the sheer scale of those creates some built-in safeguards. Hundreds of millions of dollars are spent, and countless unpaid hours of news and commentary coverage are devoted to the candidates and national issues. Foreign influence, no matter how great, is no more than a trace element in this massive sea of information.

Local elections are something else. Often the local electorate barely knows who the candidates are. Recently, the abrupt dismissal of serious charges of false reporting brought against Jussie Smollett by by Kimberly Fox, the State’s Attorney for Cook County (Chicago) caused an international scandal. Fox’s election to the office was materially assisted by a massive donation by George Soros. Soros, of Hungarian descent, possesses dual American/Hungarian citizenship, but lives abroad, and has no connection at all with the Chicago area. Soros has funded the campaigns of a number of local candidates for chief prosecutor in regions with which he has no affiliation or knowledge,  but whose philosophy of criminal law match his views. These extraneous influences can have significantly distorting effects on local policy and issues. This is serious stuff. This White paper is completely silent on the issue. 

It is silent, too, on the larger purposes and effects of the Russian trolling. The authors acknowledge that the trolling did not effect the outcome of the election, and also that it occurred when Trump was a significant underdog in the Presidential race. No one in their right mind backs the projected loser in an election. All that happens is that you end up with an enemy in a high place. So what was the point in the Russian trolling? 

The answer, as given in the far superior analysis of Professor Kate Starbird, at the University of Washington, and a number of others, is that the Russians were not so much interested in the outcome of the election as in disrupting an inflaming the public dialog of the United States polity. For example, the trolling appears on both sides of the BLM movement, usually the most strident and inflammatory posts. The Russians chose Trump, not because of any particular affection for him or policy consideration, but because he was the most belligerent and controversial of the candidates. After his election, a number of his ‘supporters’ became the most strident and inflammatory of his opponents.

In short, the object here is not victory as such, but the creation of chaos. That makes a considerable difference to how the integrity of elections, because it suggests - bluntly - that the integrity of the election, in terms of vote tabulation, polling, and so on, is not at primary risk. The disruption of candidates’ presentation is secondary - it is actually a subset of a much larger problem, the disruption of political dialog in general. For those like me, a prototypical liberal hawk in the FDR mode, the restoration of civility in our public communication, the end of the ludicrous extremes of partisanship that we have come to, is of supreme importance. You don’t get anywhere when you focus on a short term election result with which you disagree, and ignore the far larger, more disturbing, problems. But that’s what this White Paper does.

(3) Indifference or Ignorance of Actual US Election Practices. This is a little unfair to this paper as the failing is universal, i.e., with no exception that I know of, every discussion of electoral issues ignores the actual reality of American election practice. I have yet to read any critique in which the authors have bothered to interview actual election officials - you know, the county and local volunteers and civil servants who have actual responsibility for conducting elections. The result is that all ignore the actual drop-stream-tributary nature of the way ballots in American elections are actually counted. Also, in the exclusive focus on Presidential elections, most writers have also completely overlooked that Presidential elections are also general and local elections. Even in the most partisan Democratic or Republican areas, where the Presidential and Congressional elections are a foregone conclusion, there are candidates for school board, water board, etc., who care passionately about the outcome of the election, and the fairness of the voting and counting process. 

Thus, the fair question is never asked and never answere - just where in the election process is the techno bug suppose to occur? Votes are counted at the precinct level, usually by volunteers from the community. There are poll watchers from both parties. Voting machines are tested at the beginning and end of the polling period. (Do academic critics think ordinary Americans are so dumb that they don’t do this?) The drop-by-drop precinct reports are footed at central counting stations. There may or may not be an audit trail to each individual ballot, but there is (and always has been) a trail to precinct counts, a few hundred at a time. The machines are not networked. Even if they were, the before-and-after operational tests would expose a virus or contaminant. 

So - I repeat - just where in this process is the disruption suppose to occur? Please do not reply, ‘corrupt officials’. You run straight into nine centuries of experience with Ockham’s Razor and the rule ofavoidance of multiple explanations when one explanation will do. If you have a corrupt counting process, you don’t need any electronic bug, and it really doesn’t matter whether the ballots are paper or digital.Your problem is corrupt officials. 

 However, even if it is a universal failing, the Stanford White Paper definitely earns specific damnation for this gem:

A few misconceptions about election cybersecurity also need to be briefly addressed. Many people commonly believe that the security of a computer can be assured by not connecting the computer to the internet. Although many attacks on computer systems are delivered through the internet, the lack of an internet connection does not guarantee security. For example, an individual’s computer could be compromised prior to ownership or while being updated, e.g., through using outdated operating systems with existing vulnerabilities, installing new programs or operating systems with additional files (e.g., backdoors or trojans that share information with a hacker), disabling an anti-virus or anti-malware program, or even monitoring power consumption. (Pgs. 20-21, emphasis added).

You're damn right that it is 'a common belief that the security of a computer can be assured' by not networking it. That's because the belief happens to be accurate. Misconceptions??? It’s the authors suffering from the misconceptions. As amazing as it seems, apparently none  of the authors bothered to pick up the phone and talk to an actual election official. What they would have learned is that a polling machine is field-tested, usually on the morning of the election and after the polls close. So what does all this talk of ‘compromise prior to ownership or while being updated’ come to? How do the authors suggest a voting machine is corrupted during the short interval (less than an hour) between test and polls opening? And re-tested at the end of the day?

In the practical reality that the authors have completely ignored, at the end of the day, the workers will total the votes from the machines, and submit the tallies up line to where they are footed and summarized. Are the Stanford authors really so naive, so contemptuous of the ordinary intelligence of precinct workers, that they don’t realize that the tallies are checked at the local level before transmission, i.e., there is no automatic upload. And I have not even mentioned that the vast majority of these ‘existing vulnerabilities’ created during updates to operating systems or in manufacture have to do with hacking opportunities that presuppose connection to the Internet, which brings us back to the prosaic fact that the machines are NOT networked. 

I’d suggest the authors try an experiment. (My God! Actual data! Who'd a thunk it?) Set up a machine. Test it before first use, for accuracy. (Recall these are not general use computers but single, limited purpose machines.) Then open a poll in which the machine is used for several hours under the observation of poll watchers, with none of the voters having access to the operating system, or being able to do anything else than choose one button from a selection of buttons. If you can find an opportunity for a hack, then write a paper. But before you do, assuming some ultra fiendish hacker, recall that you can’t do a general hack on the entire system because - again - the machines aren’t networked. Your fiendish interloper is going to have to train a small army of techs to invade precinct after precinct, registering as voters in those places, without of course being detected by law enforcement or having any of the foot soldiers desert to the authorities. Good luck.

(In the interest of completeness, I'd note that 15 years ago computer experts noted that it was possible to hack a Diebold voting machine by substituting a false memory card for the accurate one. Of course, this assumes a corrupt voting official, since ordinary voters do not have access to the system. Back to Ockham's Razor, a principle ignored by all the experts. And none of them bothered to wonder why a citizen volunteer, generally one of a number all present at the same time, would risk a major felony to alter the results of a single precinct. Now back to the need for a small improbable army to have any practical chance to influence the outcome.)

In short, there is no empirical discussion in the Paper, no experimentation of any kind - simply high concept reasoning from unproven and extremely dubious propositions. The authors aren’t doing actual argument . They’re reciting a tautology, which is useless.

I would not go on and on about this, other than this is a STANFORD White Paper, and therefore has a presumption of solid academic work. It isn’t solid at all. 

But more than that, it is typical of a mode of thought that is ravaging the liberal community and preventing the formation of the large tent movement that is necessary to deal with the major issue of our time, the wealth divide. It is the assertion that there is Something Seriously Wrong, when in fact there is nothing seriously wrong. Our electronic voting machinery works just fine. Our Presidential election in 2016 was impacted by foreign influences, but not to the extent that it undercut the validity of the election. There is reforming  work to be done, but not in crisis mode.

Above all, it you are going to do analysis about problems and possibilities in American institutions, don’t simply regurgitate the high level concerns of your peers. Go to the nuts-and-bolts of actual American practice. Don't ignore the common sense and intelligence of the American people. Talk to them. That’s where everything begins. 

Slaughtering the Sacred Cow - Again

 

[Written on Reddit in response to a poster who still believes all the 60's myths of the Vietnam War perpetrated by the war opposition. They fall apart on the slightest examination, but very few Boomers ever undertake that - too painful. This particular poster emphasized the 'popularity' of Ho Chi Minh, Eisenhower's oft misquoted statement about the likelihood of success in elections in 1956, etc.]

I always ask people with that view point - why, if that's the case, did no one ever flee North? Because no one ever did. The flight from 1957 on was always South, away from the Communists, and ultimately into the open sea, which is amazing when you think of it.

Why, if Ho Chi Minh was so popular, did the Communists never suggest holding a national referendum between 1960 and 1975? The United States and South Vietnam would have agreed to that like a shot.

For that matter, there has never been an election in Vietnam from 1975 to this day. In 1978, a group of liberal activists, led by Joan Baez, took out full page ads in newspapers across the country, begging the Vietnamese regime to justify the war resistance by conducting such an election and other reforms. (Instead, there were re-education camps.) Why not? Why no election, even in referendum style?

The short answer is that the 'popularity' of Ho Chi Minh is a complete myth, a triumph of Soviet propaganda. Like Stalin in 1945, he was popular for a window of time in 1956 directly after the victory over the French. But the Communists then began a Kulak-style land reform, imposed barbaric religious oppression against both Buddhist and Roman Catholic Vietnamese, and the great flight began - more than a million between 1957 and 1960, voting with their feet. The savagery of the regime, publicized in a series of books written by Dr. Tom Dooley in the late 50's, was an international scandal. JFK joined a Senate study group on the issue back then.

In short, the reason no referendum was staged, or election held, is that the Communist Party would lose cold.

So much for the popularity of Ho Chi Minh. Somehow the war opposition managed to obscure all the known history of the late 50's and the self-evident status of the Vietnamese state at the time.

There is more than a little racism in this as well. No one would ever describe a European satellite state as the free choice of the people. The regimes were always imposed by force. But somehow our little yellow brothers accepted that mode of government. The reality is that they were as resistant as the Poles. No free people EVER adopted a Communist regime consensually. All of them were imposed by force. Vietnam is no exception.

The US fought a lousy war, with poor tactics, poor leadership and a President who was unable to communicate the rationale effectively. But we were the good guys. The bad guys were the North Vietnamese, seeking successfully to impose a tyranny on an unwilling people. There were no elections because Ho Chi Minh was actually a Stalinist thug who couldn't have won an election anywhere after 1957.

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Atul Gawande's Book 'Better'

A few years ago, I read Atul Gawande's book 'Better'. The book is a series of essays on a deceptively simple concept - a discussion of medical improvements and process that did not end or eliminate a problem (e;g. the Salk polio vaccine), but simply bettered the existing protocols.

There was, for example, a fascinating chapter on the APCAR standards for evaluating the health of newborns. It doesn't seem like much, because the evaluations of vitality are somewhat subjective. But the simple act of measurement, and the database it created has proved to be of inestimable value. (I was surprised to learn that the name is not based on an acronym, but is named after a genius woman physician of the 30's, forced by the gender prejudice of the day to give up surgery for gynecology.

But the book influenced my thinking in other ways. The notion of betterment simply as a desirable end seems to have disappeared completely from our modes of thought. The excessive partisanship of these days is death on half-a-loaf proposals, which are actually how most social progress begins. They've become as outdated as compromise. Obviously, no compromise is possible with the devil - and it that's how you regard Donald Trump, or some CNN host, or Mitch McConnell or Charles Schumer, or the NRA or 'gun grabbers', you are not going even to entertain any notion that the anti-Christ might propose. And you will never, never sit down with them. 

Far more than the particular and obnoxious personality of Donald Trump, and the excesses of his opponents, the loss of appreciation of the concept of 'better', of belief in middle ground solutions (compromise), and of a decent respect for truly diverse opinions seems to me the major issue that Western democracies face. Gawande's book illustrated that beautifully.

Simple Solutions - The 'No-Buy' List and Nuisance Law

[Derived from discussion posts of mine, lightly edited] 

My own thoughts for solutions to the problems posed by automatic weapons involve two simple elements, implementable tomorrow in one case, in a half-year in the other.

(1) You create a 'no-buy' list something like the no-fly list, which you can end up at the drop of a hat. It;s a simple, one-click database, available to any gun dealer. A psychiatrist's warning, commitment, expulsion from school, dishonorable discharge, felony (of course), accessing suspect websites (Islamic, White supremacy, Black nationalism, etc.) - almost anything gets you on it, accept an anonymous tip - that's too much. If you feel it's unfair, you can have a hearing, a la no-fly. This gets some resistance from the NRA, but not that much, as it is already committed to back-ground checks. The real resistance comes from the Luddite/Snowden admirers, because this does involve utilization of ALL the public information available.

(2) The second is to treat these weapons as potential public nuisances, subject to civil abatement with cause. As with anything dangerous, the State can require a purchaser to take safety classes, pass a test, and so on. Since the NRA would love to conduct such classes, there is a silver lining for it. The requirement forces a buyer to socialize to some extent with other owners; it also requires the owner to meet with someone with authority and background. (Most of these guys are extremely anti-social - forcing them into class draws that out.) If you fail the test or course, you lose your right to own an automatic weapon, and it's confiscated.

Also, buy more than one of these things and the household is subject to a civic inspection for certainty that it is in compliance with all safety requirements - including no members of the household on the 'no buy' list. You may be fine and upright, but if you want to house dangerous weapons in the same residence as your creepy son . . . no way.

This change may seem like a big deal, but it's not. There is such a thing as an administrative warrant, which is what the State uses to insure compliance with building codes, health regulations, and the like. When I installed a heat pump in place of my gas heating, a building inspector showed up to be sure it was in compliance. Had I refused him entrance, he could have obtained a warrant to make the inspection. It's that sort of thing.  Society is not required to trust the good faith with respect to the safety of dangerous weapons, to some nutty mother with her malignant autistic son in the same house. You don't have to with poisonous reptiles and you don't have to with arsenals. We can require an arsenal holder to insure that the weapons are safely stored, require inspection to be sure, and abate the nuisance - require removal - if they are not.

Those two measures would ha e prevented EVERY one of these mass killings except one (Las Vegas, where the killer took extraordinary measures to fly under radar). These crimes are all committed by social misfits, loners, outsiders, or morbid kids. They are all committed with spanking new weapons, since none of the perpetrators has the social skills to locate an underground dealer and very rarely the mechanical skills to fix up a second-hand weapon. (Besides, who wants to trust your moment of glory to some schlock piece of weaponry?) Since these are all exercises in self glorification, there is almost always a public expression of hostility, enough to get you on a no-buy list.

The first of my thoughts is a no-brainer. The second would require some politicking, until the analogy to building codes, people who own dangerous pets, and so on is made clear. Throwing the NRA a carrot doesn't hurt. Both accept the on-going sales and legitimacy of assault weapons, which I don't like, but which is another carrot. Both seem to me achievable. Both are in the spirit of Atul Gawande's marvellous book 'Better' - not to look for a complete solution at this time, but simply means and methods of bettering it.

This is what might be accomplished if we talked of the issue in calm voices as a problem with solutions. What we prefer, however, is to damn gun owners as redneck racist cretins, indifferent to mass murder - which inevitably brings counter accusations of gungrabber and cultural elitist. It is amazing to me that people who use these tragedies as opportunities to emphasize their own smug moral superiority do not realize that they are not contributing anything to solving the problem.

In fact, they may be the problem.