The Jury Talks Back


Integrity Matters

Filed under: Uncategorized — Kevin M @ 9:26 pm

And much as I disagree with him, “kos” has it.  For the last year and a half, the Daily Kos has been running polls of local contests.  Many times their results have seemed skewed to the left, but I’d always assumed it was the question wording or likely-voter assumptions.

Not so.  It turns out that the polling firm (R2000) was faking their data and defrauding the Daily Kos, telling them what they wanted to hear.  Some lefty statisticians finally got suspicious, took a good look at the numbers and pretty much proved that the data was cooked.   They brought the info to Markos, and he outed them big time.  Takes real integrity to admit you’ve been had.  Bravo.



Filed under: California Politics — aphrael @ 3:32 pm

It appears that the Democratic candidate for SD-16 may not actually live in the district.

To be fair, the county elections office claims he does, despite the fact that the State Senate’s tool and the county’s own GIS mapping tool says he doesn’t.

It’s not clear to me who should prevail on the inevitable lawsuit – clearly he’s required to live in the district, but ultimately if the elections office of his county tells him he’s in a given district he should be entitled to rely on that authority, but if there’s a valid state authority it probably isn’t too much to expect a campaign for the state legislature to check it.

But it’s funny (and embarassing) and quite an indictment of the 2000 redistricting that it’s even an issue at all.

Doe v Reed

Filed under: Uncategorized — aphrael @ 7:59 am

The State of Washington has a series of process rules which, when taken together, courts have interpreted to require that the identity of citizens who sign referendum petitions (that is, petitions that have the legal effect of causing a law already passed by the legislature to be suspended and sent to the voters for approval) be published as public information. The proponents of a referendum to overturn the state’s domestic partnership law objected to this, claiming that such a requirement interfered with their right to freedom of speech (by publishing their names, it subjected them to the risk of retaliatory harassment, thereby placing a burden on the exercise of their right to free speech).

They lost at the Supreme Court this morning, but they lost in a way which means they may yet win.


First amendment challenges, like many constitutional challenges, can be brought using two different kinds of argument: (1) a facial challenge that alleges that the law is always unconstitutional under any circumstances, or that the circumstances under which it is constitutional are so small in comparison with the circumstances in which they aren’t that they it’s equivalent to never, or (2) a challenge which says that, in the particular situation presented by the facts of the case, the way the law is being applied is unconstitutional. Generally speaking, as-applied challenges are more likely to succeed, but sometimes facial challenges do as well (the communications decency act was struck down on a facial challenge, for example).

The opponents of SR71 (that is, the people who wanted to hold a referendum and who then cmapaigned against it) have brought both kinds of challenge. Their facial challenge is what made it to the Supreme Court today; their as-applied challenge remains at the district court, and the fact that they lost the facial challenge does not mean that they will lose their as-applied challenge.


Washington law does not explicitly require referendum petition signatures per se to be public, but it requires that all “public records” be available for inspection and copying, and defines that to include “any writing containing information relating to the conduct of government or he performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency”; that clearly covers referendum signatures (and appears to be intended to be so broad as to cover virtually everything imagineable). The Supreme Court states as a basic premise that such a law is subject to first amendment review when it is applied to petition signatures, because (a) signing the petition is inherently an expressive act (and therefore ‘speech’), but they concede that the act of signing a referendum petition is also an act that has a role in the electoral process which can therefore be regulated as part of the electoral process. The issue therefore contains significant interests on both sides, and the court responsds by balancing those interests against each other, looking at: how serious is the burden on the speech interest, how important is the government interest at issue, and how closely tied is the regulation to the government interest?

The standard used in previous cases to perform such balancing has been “a substantial relation between the disclosure reqauirement and a sufficiently important governmental interest.” The burden lies with the State of Washington to demonstrate that, so it put forward effectively three interests: (a) combatting fraud in the electoral process (eg, invalid signatures); (b) fostering government transparency; (c) providing information to the electorate about who supports the petition. The court looked only at the first interest, decided that Washington’s interest in combatting fraud in the electoral process was important enough (and this disclosure requirement was sufficiently related) that the standard had been met, and then ignored the other two rationales (because good courts don’t rule on questions they don’t have to).

The opponents of SR71 tried to counter this by arguing that no, really, the burden on the exercise of speech rights is really, really high, and the normal standard for disclosure shouldn’t apply. After all, several groups plan to post the list of signatures in searchable form on the internet, where they could be combined with publically available phone numbers and maps, and this information will be used to harass and intimidate signers. Which is, in theory, a legitimate argument … for an as-applied challenge. There’s no evidence that this is a problem for people seeking a referendum on less emotionally charged issues.


Justice Breyer concurred for the purpose of pointing out that the court, which didn’t say it was balancing interests but obviously was, was balancing interests.


Justice Alito concurred for the purpose of observing that, while he agrees with the argument that in the general case disclosure of referendum petition signatures doesn’t violate the first amendment, he thinks an as-applied challenge will easily succeed whenever there is a “reasonable probability” of harassment, and that he really thinks the SR71 opponents should win their as-applied challenge. (He went on at length about that even though it wasn’t necessary to answer that question and judicial restraint generally calls for not answering unnecessary questions).


Justice Sotomayor concurred for the purpose of pointing out that initiatives and referenda are special creatures whose rules are basically up to the people of each State, acting as sovereigns, and that the court should grant states wide leeway to develop their own rules governing the application of direct democracy. (An unusually strong states-rights position for a liberal justice).


Justice Stevens concurred for the purpose of saying that no, really, signing referendum petitions aren’t an exercise of freedom of speech, and then proceeded to explain why he thinks the as-applied challenge should fail. (It’s unclear whether his off-topic rant or Justice Alito’s off-topic rant came first).


Justice Scalia concurred for the purpuse of saying that he doubts that signing a referendum petition is an exercise of free speech, to criticize a 1995 decision invalidating a ban on anonymous campaign literature, and to wholeheartedly support the argument that, in signing referendum petitions, citizens are acting as legislators, whose behavior has traditionally been *required* to be public, even in colonial times – the federal constitution and state constitutions all require actions of the legislature to be kept in public journals, and revolutionary-era petitions for redress of grievances (which a referendum petition clearly is) were always read publically. He then proceeded to argue that in colonial times, *voting* was public; and if voting on a referendum was allowed to be public, it’s nonsense to say that a rule making petition signatures public would have been prohibited.


Justice Thomas dissented. He believes the problem is not that requiring disclosure interferes with the freedom of citizens to speak, but with their freedom to associate with one another; accordingly, because there’s a particularly high value to privacy in political associations, the standard the state should have used is higher (it must demonstrate a “subordinating interest of the State that is compelling, and … a substantial relation between the information sought and an overriding and compelling state interest”). The state can’t meet that burden.


I agree with Justice Thoms that the state couldn’t meet hte burden he wants the state to meet, but I’m unconvinced that it’s the right one – he doesn’t really explain *how* signing a petition to revoke a law is an act of *association* rather than an act of speech or an act of legislation, and without a compelling argument there, his reasoning just collapses. My position on this is probably closest to Justice Scalia: signing a referendum petition, or an initiative petition, is an inherently legislative act; it has a binding legal effect and should not be carried out in secret.

This decision appears to be unimportant, in that the opponents of SR71 still have an active case and are still likely to prevail, but that’s misleading: a decision on the other side would have had enormous implications – because if a state can’t require disclosure of signatures on a referendum, it probably also can’t require disclosure of authorship of campaign ads (the burden on speech would be the same, but the state interest would be lower). So: there was a possibility of a major upheaval in campaign law coming out of this, and that possibility has been deflected, rather decisively.


Arizona boycott backfiring?

Filed under: Uncategorized — aunursa @ 3:40 pm

Human Events reports that the widespread call for a boycott of the state of Arizona appears to be having the opposite effect, at least so far, as supporters of the law are flocking to visit and do business with the state.

“There are no negative effects I can quantify,” said Tony Venuti, publisher of AZ Tourist News and webmaster of a pro-Arizona business site. “There have been cancelations caused by the boycotts, but for every cancellation, four or five (reservations) are coming in.”

More tourism businesses are reporting to Venuti that they are seeing increased business that they attribute to the reaction against the boycott calls. Venuti says the news coverage of the immigration enforcement law is skewed to represent the 30% nay-saying minority opposed to the law, and largely ignoring the viewpoint of an overwhelming number of supporters.

Arizona Fights Back, a web site set up by Gilbert, Ariz. resident Brett Scott, promotes a reverse boycott of municipalities and groups that have attacked Arizona SB 1070.  Another site, Buycott Arizona, also provides a reverse boycott list, as well as a list of Arizona-based companies to support.

On a personal note, at the time of the initial boycott calls by California cities that should mind their own business, I decided to extend my upcoming road trip to Las Vegas with two additional nights at a Pointe Hilton resort in Phoenix.  The Grand Canyon State offers many exciting and memorable experiences for travelers, some of which I will highlight in an upcoming post.


The Definition of Chutzpah – Campus Hate edition

Filed under: Uncategorized — aunursa @ 6:47 pm

The Muslim Student Union at UC Irvine has conducted many virulently anti-Israel and anti-Semitic events over the past several years.  Now the MSU faces a one year suspension (that would be effective September 1st) for deliberately orchestrating the disruption of a speech by Israeli ambassador Michael Oren back in February.  One of the ironies of anti-Semites is the claim that a supposed Israeli Lobby seeks to shut down any criticism of Israel; in fact the disruption of Oren’s speech is just one of hundreds of examples of anti-Zionists seeking to silence Israelis and pro-Zionists who dare to speak out in support of the Jewish state.

The irony was apparently lost on MSU lawyer and anti-Israel activist Reem Salahi.  She declared that the suspension “would create a really dangerous precedent for shutting down dissent.”


The Definition of Chutzpah — Capital Punishment edition

Filed under: Uncategorized — aunursa @ 6:09 pm

As I write this, Ronnie Lee Gardner is just hours away from being executed for killing attorney Michael Burdell during an escape attempt from custody in 1985.  (Burdell was not involved in Gardner’s case.)  Gardner was at the courthouse for a pre-trial hearing in the 1984 murder of Salt Lake City bartender Melvyn Otterstrom, who left behind a wife and 3 year-old son.

Gardner’s attorney’s are filing several desperate appeals attempting to delay his date with the firing squad.  One of the appeals is that he has been on death row for too long.  “He asserts that executing him now, after nearly 25 years on death row in Utah, so lacks retributive or deterrent value that it violates the Eighth Amendment,” his attorney explained.


Another unknown candidate surprises everyone ….

Filed under: California Politics — aphrael @ 5:38 am

There’s been a lot of talk in the political press and blogosphere about the weird result in South Carolina: an unknown candidate who didn’t bother campaigning won a primary election, and there are allegations that somehow the opposing party was responsible.

Apparently something similar happened in California: an unknown candidate for Insurance Commissioner, whose campaign expenses consisted of paying the filing fee, paying for his statement in the voter guide, and flying to an endorsement meeting, appears to have won the Republican party primary.

Perhaps, in a year with a strong anti-incumbent backlash, this shouldn’t be surprising. But the fact that it is happening makes the similar occurrence in South Carolina seem less bizarre.


Obama to support anti-Israel resolution at UN

Filed under: Uncategorized — aunursa @ 9:00 pm

According to the Weekly Standard, the Obama administration will support the call for an independent UN-sponsored commission to investigate Israel’s role in the Gaza flotilla incident.  As the Standard notes, “the investigation will be one-sided, focusing entirely on Israeli behavior and not on Turkey or on Hamas.”

No word yet on whether the UN plans to investigate the Taliban for hanging a 7 year-old boy in Afghanistan.


What’s that going to achieve, exactly?

Filed under: Uncategorized — aphrael @ 2:25 pm

There’s a FB group meme going around today: boycott BP until they fix the oil spill.

I don’t get it.

I mean, I can understand “BP hosed us really badly so we should boycott them as punishment.” That’s consistent, and it’s basically what I did to Exxon after Valdez (and, while I now believe that I was wrong to do so because the people who were most hurt by it were the service station owners, I can understand the impulse). It’s not clear that an oil company which operates no branded service stations can effectively be boycotted – it’s not like I know who extracted the oil that was refined into gas/plastic/etc that I buy – but modify it to ‘boycott Arco because BP hosed us really badly and they deserve to suffer’, and there’s at least something understandable there.

But boycott them until they fix it?

That only makes sense if you believe that BP could fix it but hasn’t – if you ascribe to them some deliberate delaying action which they would abandon in response to the economic pressure of a boycott.

But that’s not really a reasonable way to look at it. The blowout is on the order of a mile below the surface of the ocean. It’s in a place where very few manned vessels can go, under intense water pressure which makes everyday activities slow and complicated. Fixing a leak of this sort at this depth is something which has never been done before; as far as I can tell, they have some theories about things which might work, but it’s not like those theories have ever been put into practice. They don’t know how to fix it; they’re trying the ideas they have until one of them works. Trying to use economic pressure to get them to do it faster isn’t going to help.


How I voted in the California election

Filed under: California Politics — aphrael @ 7:05 pm

I had intended to write up full-scale analyses of each of the propositions prior to the election, but my morale got shattered, and my willingness to devote energy to anything other than rank avoidance dwindled away.

But someone expressed interest, so even though it’s too late to sway anyone’s votes, here are the short versions:

Proposition 13:

As I explained here, Prop. 13 is a minor technical revision to the Constitution which I have a hard time caring about in any way. It’s almost certainly harmless. It’s probably pointless – I just don’t believe there are a substantial number of unreinforced masonry buildings owned by people who aren’t retrofitting them but would if they were given a reassessment exclusion which lasted until their next sale instead of fifteen years. It’s on the ballot because the only way to change it is via a ballot measure, and the people I think should be deciding this unanimously placed it on the ballot, so I voted yes … but I would have preferred not to have to care about it.

Proposition 14:

This measure would change the way elections are conducted in California. Currently we have partisan primaries (run by the state and paid for by the state) to select partisan nominees who automatically qualify for the general election. The new system would be to have jungle primaries in which all candidates of all parties are on the same ballot; the top two vote getters would advance to the general election but would not be the nominees of their parties. (Presidential elections would be handled differently).

Activists of all parties hate it.

I like it: I think the single biggest problem with California politics is that the election structure requires candidates to appeal to the most extreme members of their respective parties. To win the primary, Democrats must appeal to Democratic activists, and Republicans must appeal to Republican activists … resulting in candidates who are forced to the extreme and then are punished for comprmising, and resulting in the 30% of the state who are nonpartisan (plus the liberal Republicans and conservative Democrats) being frozen out of the legislative process.

Part of the fix to this is to fix redistricting, which is why I voted for Prop. 11 in 2008. (DISCLAIMER: I am currently an applicant to be a member of the state redistricting commission). Another part of the solution is to change the incentive structure for elections. Proposition 14 should do that: it should encourage candidates to run to the middle in all races, and in lopsided districts it should allow the centrist members of the dominant party to combine with the other party’s members to elect a centrist partisan rather than a radical partisan.

It’s not a cure-all. But it’s worth trying.

Proposition 15:

I really like the idea: take one race and see if public financing works. It’s great to have an experiment limited to one race rather than experimenting with the entire system; and it’s particularly appropriate to use the Secretary of State as a test bed for this kind of reform.

I really dislike the fact that the implementation discriminates between candidates based on the party in which they are registered.

So did Prop. 11, but in that case the initiative was fixing a critical problem. In this case, it isn’t. So I’d rather wait for a measure which doesn’t have this flaw.

Proposition 16:

Proposition 16 is a measure to change the state constitution to require a particular type of government action – and only that particular type of government action – be approved by a 2/3 majority vote of the voters.

I don’t like supermajority requirements unless there’s a compelling public policy reason for them.

I don’t like singling out particular kinds of action unless there’s some compelling public policy reason for it.

There isn’t in this case. Public provision of electric power is no different than public provision of garbage collection (or of sewage collection) or, to be honest, of water. Why should the state constitution carve out a particular hurdle for this type of public provision of utility service and not for others?

It shouldn’t.

The measure is being advertised as a way to protect the taxpayers’ money and allow people to vote on how their money is spent. But the advertising ignores what I think of as the key questions: what makes public power provision different, so that it should be subject to a public vote when other things aren’t; and what makes public power provision so special as to require a 2/3 majority vote?

As far as I can tell the answer is: nothing except the fact that the primary sponsor wants the state to write into the constitution an effective way to prevent competition.

In short: the proposition is a scam perpetrated by PG&E. It deserves defeat.

Proposition 17:

I don’t understand this initiative.

I know it has something to do with changes to the rules for auto insurance to allow a particular type of discount to be portable when you change insurance providers, and that the trade-off for it is a barrier to entry to the insurance market for people who don’t already have insurance.

I see no particular reason to prefer that trade-off.

Moreover, I don’t understand the ramifications – which consumers win by this? Which don’t? What are the long-term second-order effects on the industry?

I don’t have the time, skills, or interest to figure this out. Figuring this out is why we have an Insurance Commissioner.

so I resent being asked, I’m not convinced it’s a good idea, and I don’t want to spend the time figuring it out.

I feel somewhat bad for reflexively voting ‘no’ without taking the time to understand it. But … unless someone can make a case that it’s worth my time, why should I?

Measure G:

This is a San Mateo County measure involving a short-term (4 years) parcel tax whose revenue would be used to plug a hole in the local community college district’s budget caused by state budget cutbacks.

To start with: community colleges are a fantastic resource which are, I think, more important to the well-being of the state’s working class population than CSU and UC, and are a vital service which should not be cut back. I would support cuts to CSU and UC before I’d support cuts to the community colleges.

And yet … a temporary tax to plug a long-term budget hole?

This might make sense if there were any reason to believe the state’s budget crisis would end in the next four years.

There isn’t.

And so it doesn’t.

The measure calls out for another election in four years to plug the exact same hole we’re plugging now.

So … we should buckle down and either pass a permanent tax now or figure out how to balance the books without the increase now. But we shouldn’t be trying to use a short-term temporary fix to the problem.

That way lies continuing crisis.

And wouldn’t it be better not to renew the crisis?

System-wide DirecTV DVR failure

Filed under: Uncategorized — Kevin M @ 7:26 am

All of DirecTV’s installed base of DVRs locked up this morning due to a corrupted guide update.

The DVRs will not respond to remote control signals and are stuck on the last channel viewed.  To fix, you have to open the panel on the lower right and push the little red RESET button above and to the left of the card.

Then, after it comes back up (or gets stuck ;-)) you have to reset it again.  Apparently it takes two resets in 30 minutes to purge the guide data.


Law School Advice

Filed under: Uncategorized — Leviticus @ 2:41 pm

I’m going to be applying to law schools within the next six to eight months, and I was wondering if the lawyers who frequent this site had any advice they’d like to share: about where to go, which schools had good programs in what, advice about study habits, and any other general stuff that seems pertinent. Should I go to an East Coast school? I’m partial to the West – to its ways, views, and climate; and I’ve lived here all my life. But people keep telling me I should try for someplace in the East.

I like the idea of UT-Austin, or LSU, but I’d also be interested in hearing about some other good places. Any advice would be appreciated.

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