Every now and then the world gets to be too much, and we need to vent some frustration. Some choose to exercise, some choose to eat, some choose to down three Manhattans and stay out until 4 AM. While these are all good options, sometimes you need to just scream.

While my family is full of wonderful people, and my friends are great listeners, sometimes I recognized that they don’t have a spare few hours to hear me rant, so I came up with The Void, a place where one and all can come to scream into the zeros and ones of the internet to get out that pent-up frustration. Welcome, and enjoy.

My Fellow Californians

The recall election is coming up on September 14, 2021, and I can’t stress enough how important it is that you fill out your ballot and return it.  

Over the past few months, I’ve seen a lot of takes that remind me of 2016 and so I just want to come out and share my two thoughts about this. 

1. Saying “Vote for xxx” even if you don’t like them, b/c “yyy” is so bad is a LOSING strategy. That’s what liberals tried with Hillary. That is how you depress voter enthusiasm and the people who matter won’t turn out.

2. Gavin has done a superb job as governor.

If you are a fellow Californian who is not liberal, obviously you will disagree with a lot of these policies, but these are policies that liberals overwhelmingly support (and that everyone should support).

1. Signed AB 1950 - shortening probation lengths - one of the most dramatic changes to criminal sentencing in decades.

2. Signed AB 1869 - significantly curtailing fines and fees that can be imposed as part of a criminal conviction and halting collection of these fees that haven’t been paid.

3. Extended universal school breakfast and lunches.

4. Expanded funding for Universal Pre-K.

5. Increased subsidies for ACA (Obamacare) and expanded medical for undocumented Californias.

6. Put a pause on all executions.

7. Aggressive climate action to cut greenhouse gas emissions and encourage the purchase of zero-emission vehicles.

8. Launched project roomy which helped move more than 42K people off the street during the height of Coronavirus.

Now, as far as the pandemic goes, here is California’s record:

1. Bottom half of deaths and cases per 100K residents.

2. GDP almost back to 2020 Q1 levels.

3. 66.2% of CA has at least one dose and 53.7% is fully vaccinated - better than more than half of the country.

4. Higher vaccination rate per 100K residents than all but 11 states.

5. Distributed over 46 million vaccine shots - almost twice as many as NY and FL have administered.

All of the above is even more impressive given the size and diversity of California. 

My point is, Vote NO on the recall because having Newsom in place is good for California.  He’s been a good governor during an unbelievably challenging era for California.  

I am furious

I’ve spent the past 24 hours being angry, scared, horrified, and disgusted, and mostly at a loss for words about the horror that we witnessed unfold yesterday.  I went to law school three blocks from the US Capitol building.  I used to play ultimate frisbee on the lawn of the capitol and spent many a drunken night walking past the capitol and marveling at its magnificence.  I worked in the capitol as an intern and would marvel every time I walked through its hallowed halls.  It is more than a building.  It is a symbol of all that is great with America.  It is a symbol of the foresight that a government ruled by the people and operated for the people, could result in the betterment of all.  It is sturdy, resilient, imposing, and beautiful.  

I watched as Donald Trump pulled up to a rally, a rally not half a block from the White House, in an armored caravan, and spent an hour riling up the crowd, lying about voter fraud claims (that dozens of courts - not to mention basic counting - have rejected), calling for legislators being stopped and being brought to justice.  He called for the crowd to defend government by the people, claimed one of their great achievements would be election security, and urged them to walk down Pennsylvania Avenue to the capitol to give them the “boldness” they needed to take back the country.  At that moment, every single person who was watching his speech, knew that the only result of this crowd was violence.  For this was an encapsulation of his presidency.  He stokes anger and resentment, he works to divide us and conquer us, and then he sets us upon each other, and hopes to reap the benefits of the chaos.  

As a criminal defense attorney, I get to see lots of different (often dubitable) theories of culpability proposed by prosecutors.  One of the more common theories of culpability, is that when you wind up a toy, you can’t complain when it goes where you point.  President Trump has spent the two months since election day winding up his supporters, and this morning, tightened the screws once more and pointed them towards the US Capitol; there are your enemies, you alone can stop them.  

Am I surprised by what happened today. Not at all. This was the logical outcome of the last four years. But I am furious.  I am furious at the President for inciting this mob.  I am furious at the months of being gaslit by the president and members of the GOP.  I am furious at the desecration that Mitch McConnell has wrought on the Senate over the past 12 years. I am furious at the majority of the GOP who still refused to accept Joe Biden’s win despite zero evidence of widespread fraud, even after seeing the disastrous and deadly consequences of the President’s seditious lies and claims.  I am furious.  

But I am also encouraged.  I’m encouraged by the Senators and Congressmen, Dems and Republicans alike, who were threatened and endangered for doing their job and then came back and continued it until it was done.  I’m impressed that so many members of the GOP, McConnell and Pence included, who, in the end, refused to bow to President Trump’s will.  They are complicit and responsible for so much damage to our nation, but at least here they stood strong.  I am encouraged that a jewish man and a black pastor, neither of whom have ever held office before, were elected to the US Senate from Georgia.  I am encouraged that our democracy won in the face of domestic terror.  

This four year nightmare is almost over, but our country will not magically become whole again.  Misinformation and conspiracy theories won’t magically end both sides won’t magically like each other again.  In fact, I’m not ready to make nice yet, and I’m not willing to forgive a lot of what happened over the past four years and I’m sure people on the other side feel the same way.  But I do believe that we can, and if we are to survive as a nation, we must, do better.  Politicians and pundits are fond of saying that “This isn’t who we are” or “This doesn’t represent America” and it’s easy to argue that if you have to keep saying that then maybe it is who we are and does represent America. I don’t want to believe that.  Let’s use this moment to improve ourselves.  Let’s come out of this dark chapter and be better.  Let’s never stop fighting for what we believe in.  Let’s prove that this isn’t who we are. 

If you aren’t scared yet, you aren’t paying attention.

In 2016, Donald Trump won Pennsylvania by 44,000 out of 6.16 million votes.  That is less than 1% of the vote.  This year, already 2.1 million people have voted in Pennsylvania, and many more votes are expected to come in before election day.  Of those 2.1 million votes, 1.4 million have been Democratic voters, 400K have been Republican voters and 200K have been No Party Preference voters.  Now, voter registration doesn’t necessarily match up with candidate preference, especially in a state like Pennsylvania, where a lot of rural, blue-collar workers used to be Democrat, but may not have switched their registration, but that doesn’t change the fact that registered democrats have a sizable lead in mail in voting. 

It is expected that the GOP will greatly outnumber Democrats on voting totals reported on election day (a) because so many more democrats will have already voted by mail and those ballots are counted later and (b) because generally more Democratic leaning voters are more likely to have to cast provisional ballots.  In fact, FiveThirtyEight predicts that there could be as much as a 17% swing in results between election night and when all the ballots are done being counted.

Because of the close margins in Pennsylvania, Joe Biden’s close connections with the state (having been born in Scranton, and Senator from Delaware, which shares a media market), and Trump’s generally overperforming in the midwest, the GOP has kept a close watch on Pennsylvania.  They have also systematically gone out of their way to limit access to the ballot in the state and otherwise depress the vote.  

In 2018, the US dropped a consent decree that prohibited the GOP from organizing poll watchers because of previous efforts by the party to intimidate voters of color.  This has allowed Trump to ramp up poll watching operations in the state, prompting fears of intimidation tactics from Trump supporters around polls, especially given Trump’s embrace of white supremacist groups and the recent history that the Right has with carrying guns in public.

Furthermore, while other states have quickly tried to implement measures to make voting safer during the pandemic, the Republican controlled state legislature in Pennsylvania has not made as many changes.  The first big concern to come out of the state was the presence of “naked ballots.”  In order for a ballot to be counted, it must be placed inside of a security envelope, and both envelopes must be signed.  A Philadelphia official raised concerns that the presence of “naked ballots” could result in up to 100K ballots being rejected (in a state that was last decided by 44K).  Lower propensity voters, voters of color, voters who speak other languages, and other voting blocs that often favor democrats are more likely to not be aware of these rules.

The third concern that has hit the state has been the expansion of mail-in ballots and the rules surrounding when mail-in ballots must be returned and counted.  To start with, counties are prohibited from counting returned mail-in ballots before election day.  Many states allow this simple solution because with millions of ballots coming in, they understand that there’s a benefit to allowing the count to start early so there isn’t a delay in reporting the results.  The Pennsylvania Legislature has refused to even allow ballots to be taken out of their envelopes and unfolded early to make it easier for them to count on election day, so all counties won’t start counting mail-in ballots at all until election day.  Some counties won’t even start to count them until after election day, because they don’t have the capacity to do them earlier.  President Trump has been screaming on Twitter that he thinks no ballots should be counted after election day, so you can already see that he is priming the pump to challenge results that come rolling in after election day, which, as mentioned above, could result in as much as a 17 point swing. 

As far as mail-in ballots being returned, the current rule is that ballots must be counted if they are postmarked by election day, even if they arrive late, although the Republican party is suing to prevent this from happening.  The Pennsylvania legislature passed a law (Act 77) that said that mail-in or absentee ballots needed to be received by 8pm on Election Day (and that if you requested an absentee ballot, the only way you could vote in person is if you bring your absentee ballot with you and turn it in).  The Pennsylvania Supreme Court issued an opinion saying that ballots could be received up to three days after election day if they were actually postmarked by election day.  The US Supreme Court declined to overturn that decision for now, but Justice Alito wrote a note (in which Justices Gorsuch and Thomas concurred), clearly indicating that if it wasn’t so close to the election they would strike down the law, but after the election they could readdress it, and that the ballots that arrived after election day should be kept separate (as the Pennsylvania Secretary of State had ordered due to the legislation).  This opinion follows a Supreme Court opinion about late-arrived, but early-postmarked ballots in Wisconsin, where the court reversed a lower court holding and held that ballots received after election day can’t be counted.  That decision, written by Justice Kavanaugh, was riddled with both factual and legal inaccuracies (see here).  For those keeping track at home, that is Justices Alito, Gorsuch, Thomas, and Kavanaugh who are on record with dubious legal and factual claims arguing that ballots shouldn’t be counted if they are received after election day.  I would take this time to point out that Trump has installed a completely unqualified Post-master General who has systematically attempted to slow down the mail over the past six months.

So, let me paint you a scenario.  Election night rolls around, and the election hinges on Pennsylvania.  FiveThirtyEight (the prediction/news/election firm run by Nate Silver) currently has Pennsylvania as the most-likely “tipping point state” - the state on which the election hinges.  The election day vote shows Trump with a comfortable lead, but as mail-in ballots start being counted, more and more are thrown away due to being naked ballots and the election gets closer and closer.  Ultimately, it comes down to Biden wins if we count ballots that were post-marked before but received after election day.  It is important to note that due to the Court not staying the Pennsylvania Supreme Court’s decision, that is the current state of the law.  Said again, it is currently legal to mail your ballot in now, and expect that even if it arrives late, it will count.  That leaves us in a situation where newly confirmed Justice Barrett will be the fifth vote needed to stop counting ballots in Pennsylvania, effectively ending the election.  If there was any doubt as to why the Senate rushed through her nomination, instead of focusing on important things like stimulus or Coronavirus relief, when they could have still confirmed her during the lame duck session after the election, it was for this purpose: so they’d have a solid majority if there was an election dispute.  Furthermore, she, Kavanaugh, and Roberts, all worked for Bush in Bush v. Gore.  

Roberts, for all his veneer of legitimacy, has a history of playing politics and making rulings after elections that improve Republican chances as well. In 2003, after helping put President George W. Bush in office in Bush v. Gore, Bush nominated him to D.C. Circuit.  While on the DC Circuit, Roberts was part of a unanimous court that overturned a lower court, and upheld Bush’s use of military tribunals in Iraq (the case was later overturned at the Supreme Court with Roberts abstaining b/c he was a lower court judge on the case).  That decision was issued on July 15, 2005.  On July 19, 2005, Bush nominated Roberts to the Supreme Court.  After 2008, when the Democrats far outraised the Republicans through small-dollar donations, Roberts was part of the court that overturned the recent precedent of McConnell v. FEC in Citizens United, allowing near-unlimited dark money contributions.  In 2012, after Democrats won again, in large part due to the turnout of black and brown voters, Roberts again struck down a large portion of the Voting Rights Act, declaring that racism was over in America.  He’s just as much of a political hack as Kavanaugh and Barrett and I have no doubt how he’d vote in Trump v. Biden.  

So, we are left with a 5-4 at best vote handing the election to Trump, with no way to overturn the decision.  I legitimately don’t know how our country would survive that.  And I would point out that this is just one state.  These sort of Republican voter suppression tactics are going on across the country.  

I try not to just write doom-porn and so here is my takeaway.  When I am addressing potential jurors during voir dire, I always tell them that being on a jury is one of two ways that people can actually participate meaningful in their democracy.  The other way is voting.  Yet that is under attack in this country, and if you live somewhere like Pennsylvania and Wisconsin, the Republican Party is doing everything they can to make sure you can’t vote.  Everyone who hasn’t voted yet, who believes in democracy and the founding principles of our nation (a government by the people, of the people, for the people) needs to get out and vote for the one party whose position is to increase access to the polls, not to limit the number of people who can vote.  Everyone needs to educate voters on the laws regarding dropping off absentee ballots, putting ballots in secrecy envelopes, voter ID laws, signature matching, etc., and make sure that everyone’s vote counts.  That is fundamental to our society and we shouldn’t settle for any less.  There are five days left.  We can do this.  

Make America Blue Again

If every state had equal population, you’d expect that each state had 2% of the population.  In reality, on 17 states have at least 2% of the entire US population.  California, New York, Texas, and Florida combine for over 30% of the population.  This has made political power and electoral distribution completely out of whack over the years.  For example, here is the population of various different states:

Wyoming: 579K

Alaska: 732K

North Dakota: 762K

South Dakota: 885K

Montana: 1,069,000

Combined, these states have 12 votes in the Electoral College and have voted republican Since 1996.  They have 10 senators, 9 of whom are Republican.  It wasn’t always this way.  They all voted blue in 1964 and the four that were states in ‘32 and ‘36 voted for Roosevelt.

California, on the other hand, has 39.5 million residents.  Over 8x more than those five states combined.  They have 55 votes in the electoral college, and only 2 Senators.      In 2016, San Francisco County voted for Clinton by a 280K person margin.  Santa Clara County voted for Clinton by a 345K person margin.  Alameda County voted Clinton by a 395K person margin.  LA county voted Clinton by 1.27 million voters.

In 2016, in Wyoming, 256K people voted, and Trump won by 120K votes.  

In 2016, in Alaska, 319K people voted, and Trump won by 47K votes.

In 2016, in N. Dakota, 344K people voted, and Trump won by 120K votes. 

In 2016, in S. Dakota, 370K people voted, and Trump won by 110K votes.

In 2016, in Montana, 498K people voted, and Trump won by 102K votes.

Lisa Murkowski won in Alaska by 48K votes (although the democrat was a distant fourth in the polling), Dan Sullivan won by 6,014 votes.  In Montana, Steven Danes won by 75K votes.  In N. Dakota, John Hoeven won by 210K votes, Kevin Kramer won by 35K votes, In S. Dakota, John Thune won by 161K votes, Mike rounds won by 58K votes, and in Wyoming, John Barasso won by 75K votes, and Mike Enzo won by 98K votes. 

Ok, now that we have all of that data laid out, it is clear that more people live in Californian counties than live in those five states, and more people vote in California counties than vote in those five states.  More people voted for Clinton in Alameda County alone than total votes in four of those states. What does California also have?  California has massive tech companies which employ thousands of people, prop up local economies, and offer high paying jobs. California also has a high cost of living.

Apple has 25,000 employees at its headquarters in Cupertino, CA (in Santa Clara County).  Google has 20,000 employees, Cisco Systems has 15,700. Adobe, HP, Intel, and EBay all have thousands of employees as well.  

So, here’s my solution.  Lot’s of tech companies employ very liberal people, and purport to promote liberal ideologies.  Judging from campaign donations, most of the major tech companies have donations that favor democrats by a 70-30 margin.  There should be a major push for these companies to relocate their headquarters, or at least major operating bases, to these five states.  They could provide high-paying jobs, and lure people from California to those five states with promises of lower costs of living.  If just 100K liberals from Santa Clara County, San Francisco County, and Alameda County and 250K from Los Angeles County, moved to high paying jobs with low costs of living in these five states, every single election there would be closer, without changing the margins in California.  California losing let's say 500K people would lose it maybe 1 or 2 seats in Congress, but could potentially help pick up 5+ seats in the Senate, and up to 13 more electoral votes.  Now, no election aside from Bush v. Gore since Woodrow Wilson won in 1916 would be flipped by 13 votes, but it is easy to imagine a scenario this year where it could be that close of a margin.  Moreover, if the GOP had to spend money defending five more states, it would spread their resources more thin. 

Now, is it easy to just pick up and move a company, no.  Is it easy to convince people to live in N. Dakota, S. Dakota, Wyoming, Montana, or Alaska - I’m guessing not or more people would live there.  But with an investment in the communities that these companies could make, the promise of high paying jobs, and lower cost of living, it is not only a possible goal, but could be an extremely helpful move for many people and help spread Big D Democracy across the heartland.  

Who cares?

In the 17th and 18th centuries, Hobbes, Locke, and Rousseau (among others) posited the theory of a Social Contract between all men, entered into to protect individuals from the State of Nature, a more or less brutal, every-man-for-himself, existence.  In very, very, very simple terms, the Social Contract is an agreement between free, rational, humans, and a leader, that the leader will protect them and enforce laws that inure to society’s benefit, and that the people will give the leader legitimacy and power.  

This idea has been the basis for governments, states, nations, and empires, and is at the core of the framers conception of the United States.  The government derives its power from the people and is instituted to provide for the people who give it power.  Truman Capote summed it up well, when he stated that “the problem with living outside the law is that you no longer have its protection.”  

When the government stops enforcing the law, or selectively enforces the law, then it loses the support of the people.  As a wise man once said, “the essence of fascism is to make laws forbidding everything and then enforce them selectively against your enemies.”  We see this loss of support in coups around the world, in demonstrations in Hong Kong and Belarus, and in protests here in the United States, after the brutal murders of George Floyd, Ahmaud Arbery, Breonna Taylor, Jacob Blake, and so many more. 

The Hatch Act prohibits government employees from participating in political activity while performing their official duties.  This is because the US Government is supposed to be non-partisan.  The government is elected on a partisan basis, but it is elected by the people for all of the people and is supposed to do what is best for all of the people.  To hold a political rally, or engage in political activity while in the scope of a position of public trust, signals that you are using that position for a partisan purpose, not for a non-partisan purpose.  

During the Republican National Convention, Donald Trump held the final day of his convention at the White House.  While the president is exempt from the Hatch Act, his daughter, who is a federal employee is not, and the hundreds of other federal employees who attended and participated in the event are not.  The White House is a the People’s House and should not be used as a political prop in support of one party over another. 

At this point, I expect lawless and norm-breaking behavior from the president and GOP, but what still shocks me is how openly and brazenly they do it.  After the RNC, White House Chief of Staff Mark Meadows, said that nobody cares if the Trump administration violated the Hatch Act.  The White House Chief of Staff, a former Republican Congressman, and a former chair of the House Oversight Committee doesn’t believe anyone cares if federal employees break federal laws.  

Should this surprise me coming from someone who said that President Obama should go back to Kenya or wherever he is from, who said that he had a bachelor’s degree on his official website, when he really had an AA degree, and who voted against the Violence Against Women’s Act, and opposes LGBT rights?  Clearly the man has no respect for the law, but it is chilling that there was less pushback against the government openly and brazenly violating the law.  

My point is this:  when you have government officials breaking the law, citizens will start to wonder why they have to follow the law.  They are told that there are no repercussions for illegality and so they will get more and more brazen in their actions, especially in the name of their political affiliations.  Mark and Patricia McCloskey stood in front of their house with firearms and pointed them at protesters.  Kyle Rittenhouse drove across state lines with a firearm and killed multiple people.  All are charged with felonies.  All have been embraced by the president and the Republican Party.  What happens when armed men and women show up at voting stations to prevent “illegals” from voting, but actually intimidate voters in violation of federal law?  What happens when President Trump loses and refuses to leave office?  

A repudiation of lawful actions, when there are no checks or course corrections, without fail ultimately leads to violence and strife.  For society to survive, and thrive, we need to reject this thinking and cast out those who believe the law doesn’t apply to them.  This may seem extreme, and I do believe the US is a long way from returning to a “state of nature”, but the essence of a slippery slope is when you start down it, you go faster and it becomes harder to turn back.  So for everyone who believes in a country of the people, by the people, and for the people, for everyone who believes in a country founded on the Constitution and the Bill of Rights, for everyone who believes that nobody is above the law, make sure you vote on November 3rd (or before).  

And here are some resources:

www.votesaveamerica.com

https://voterguide.sos.ca.gov

www.morethanavote.org

www.fairfight.com

You Don’t Build Bridges by Burning Them Down

I recently wrote an Instagram story encouraging people to get behind the Biden/Harris ticket.  In that post, I called out the terrible policies of President Trump and highlighted the progressive policies that Biden/Harris have promised to fight for if they are elected.  I also encouraged people to focus their energy on lifting up the democratic ticket, not tearing them down, and I stand by that advice.  I do want to add that I am obviously a liberal and am writing this to other liberals.  I think certain policies are good, and certain policies are bad – if you disagree with me on those, then my arguments won’t apply to you. Since then, I’ve thought some more about my arguments and wanted to clarify and expand upon that story.

I strongly believe that the attacks from the left on Hilary Clinton helped to increase her unpopularity, which only played into Donald Trump’s hands and furthered the belief that she was a criminal, a corporate shill, and a phony.  She may have been, she may be a creature of the Swamp, but she would not have passed a trillion dollar tax cut for businesses, she would not have shut down immigration from majority-Muslim countries, she would not have tried to gut the ACA, she would not have rescinded DACA, she would not have pulled out of the Iran Deal, she would not have reinstated the global gag rule, she would not have cut environmental regulations, and she would not have attacked the free press and spread fake, dangerous, conspiracy theories, and she would have listened to her scientists, encouraged mask wearing, and not minimized and politicized the global Covid-19 pandemic.  All of these things have real life consequences that affect real people. 

As I’ve written before (see below), a contributing factor to her loss was that tens of thousands of voters voted third party. In 2012, roughly 50K people in Michigan voted third party.  In 2016, despite more people voting, and Trump getting more votes than Romney, that number was over 250K.  In 2012 in Pennsylvania, roughly 80K people voted third party. In 2016, also with more overall voters and Trump beating Romney, over 260K people did.  In both 2012, and 2016, Jill Stein and Gary Johnson were the two next highest vote getters in each of those states.  The same pattern of drastic increases in 3rd party voters holds true in Wisconsin, Florida, and North Carolina.  Exit polls tell us that 18% of voters found both candidates unfavorable, and 23% of those voters voted third party, while 47% voted Trump.  

I mention this to show that there are real consequences to driving up the unfavorables of candidates.  If fewer people thought of Hilary as unfavorable, more people who ended up voting would’ve voted for her instead of third party, and more people would’ve shown up to vote in the first place.  

This brings me to my first main point:  We have a two-party system.    Like it or not, that is the system we have.  Strom Thurmond and George Wallace both won multiple states, but even Wallace only got 13% of the vote.  Not since Teddy Roosevelt in 1912 has a third-party candidate gotten higher than 20% of the vote.  This is especially true this year.  There are definitely minor party candidates who are running, but it is clear, three months out from the election, there is not a third-party candidate that can win.  There are benefits to voting third party.  If a third party gets enough support, they get funding the next cycle.  If a third party gets enough support, it can build enthusiasm and perhaps lead to even more support in the future.  However, there is a certain privilege to being able to vote third party.   In a place like California, it is probably a safe vote, and in a place like NY, it is probably safe, but in Michigan, Florida, Nevada, North Carolina, Virginia, Minnesota, Wisconsin, Pennsylvania, Colorado, it is definitely not a safe vote.  If you are voting third party, you are counting on other people to do the right thing and vote in the better candidate.  And in this election especially, if you believe in progressive causes (food security, housing security, higher minimum wage, better economy for working folks, less money siphoned off by billionaires, affordable healthcare,  fighting climate change, environmental justice, criminal justice) there is one ticket that is 100% better in every single category.  By not voting for them, you are taking one vote away from the better candidate.  If just you do that, that is fine.  If you and your friend, and your neighbor, and their neighbors, and your dentist, etc., do that, then it is most definitely NOT fine.  That is how you end up electing Donald Trump to a second term. 

A second common thread I hear is that non-voters and third-party voters don’t want to feel like their votes are taken for granted or that they are being pandered to by people who won’t actually do anything to help them.  I am a well-off, straight, white, male, so, obviously, I am looking at this from the outside in, but trying to pretend like there isn’t a difference between the two parties is just an absurd exercise.  Take for example the following situation: one candidate offers to legalize marijuana (LM), one offers to not prosecute marijuana offenses (DNP), and one promises to increase enforcement of marijuana (EML).  Candidate 1 (LM) has 15% of the vote, DNP has 40% of the vote, and EML has the remaining 45% of the vote.  IF everyone votes for their preferred candidate, despite a majority of people agreeing that marijuana should not be criminalized, the EML candidate will win and enforcement will increase.  However, if LM voters vote with DNP voters, there won’t be enforcement.  That is obviously a compromise, but a compromise that results in FAR LESS ACTUAL HARM than the non-compromising position.  You may be being pandered to, but that doesn’t mean that you won’t get something out of it.  

For the people who ask why they would vote for someone who isn’t going to actually do anything for them, my answer is that it is because they will not do as much harm to you or others.  I want to be very clear that I don’t believe that this is the case with the Biden/Harris ticket, but in a two-party system, you can choose to vote or not vote.   Either way, someone will be elected, and I’d rather that the least negative person is the president because the decisions that they make affect real lives. 

You often see people who set up straw men to fight with and I would strongly urge against this.  Both parties are corrupt.  Both parties are war mongers.  Both parties use dark money.  If I have to choose someone to hold onto my money, and my choices are the bank, someone who I know will peel off a fiver to buy a coffee, or someone who will take it all, and then laugh at me when I try to take it back, I’m going to choose the bank.  However, if the bank is closed, or won’t take my money, then I’m choosing the first guy.  Yes, both people are thieves, but that doesn’t mean they are equivalent.  

Compromise isn’t always a fair position.  It’s not always worth it to compromise.  I understand that.  There are plenty of things in my life that I will not compromise on (no, Diet Pepsi is not a good substitute for Diet Coke), but in a situation like this, where one ticket will continue the lawlessness and destructive harm that we’ve witnessed over the past three plus years, and one will fight for a more progressive future, the decision should be easy for anyone who truly believes in progressive causes.  

My last point is that there are different ways to support candidates.  The easiest is to vote for them.  You can vote for somebody without ever saying anything nice about them.  In order to support someone in this fashion, all you have to do is not say bad things about them.  Another way is to push them.  Pushing somebody on an issue can force them to change their opinion because they will want to get more votes.  You can ask someone why they support a cap and trade program, but don’t support harsher emission standards.  This furthers the debate and can increase awareness about your position, but you can do this without saying they are in the pocket of big oil.  Another way is to support candidates in local and state elections that support your positions.  By electing people in local elections to places of power, you help to build a coalition that can support your ideas.  When more people in power have more liberal ideas, it pushes people all the way up the chain to be more liberal.  Furthermore, it builds the base, it strengthens the bench, and it makes the people at the top (who are maybe the “compromise” pick) be more liberal in the future. 

The Justice Democrats are a great example of this.  They have been running candidates in safe democratic seats.  They are then able to have very progressive liberals get into power, without compromising the seat.  For example, Alexandra Ocasio Cortez beat Joe Crowley in the NY-14 a D+29 district, Cori Bush beat William Lacy Clay (D+29), Jamaal Bowman beat Eliot Engel (D+24).  The more people that keep winning seats, the more they can leverage their votes.  “The Squad” for example will be joined by Cori Bush and Jamaal Bowman and Marie Newman, almost doubling their voting bloc.   

My last point is that by suggesting that people (who are disappointed with the Biden/Harris ticket being too moderate) not criticize them, I am most definitely not suggesting that you shut up or sit down or be quiet.  I am suggesting the opposite.  Step up your game.  Stay out there.  Keep pushing a liberal/progressive message.  Keep fighting for the things that you believe in.  Help to boos that enthusiasm and create new energy and get people excited to vote and get progressive policies/agendas/candidates elected up and down the ballot.  But you can do that without tearing down those who don’t fully agree with you.  You can do that respectfully.  And I believe that if you do that without tearing people down, you will actually gain more support for your position.  This election is too important to sit out or to lose because of intraparty fighting.  We have to stand together, push ourselves to be better, and defeat Donald Trump.  

Amendment 4 and Voting in America

Voting is under siege in America. While we’ve seen Gerrymandering, cutting down on polling places, and the President’s most recent tweet decrying vote-by-mail, we have also seen the insidious rise of a past practice: the Poll Tax. While poll taxes weren’t originally tied to voting, by the late 19th century, the poll tax, in most forms, was linked to the right to vote.  Generally, people would have to either pay to register to vote, or show proof of payment to vote.  Some states required cumulative taxes to be paid, so if someone failed to pay a tax for a while, they’d have to pay the cumulative amount before being able to vote. 

Obviously, this had a dramatic effect on the ability of individuals to vote.  In Mississippi, fewer than 9,000 of the 147,000 voting-age African Americans were registered to vote after 1890.  In Louisiana, 130,000 black voters were registered in 1896, but after the poll tax was implemented, that number plummeted to 1,342 voters. 

Poll Taxes were originally upheld by the United States Supreme Court in 1937 in Breedlove v. Suttles, 302 U.S. 277 (1937). In that absolutely bonkers opinion, the court not only held that poll taxes were legal, but also that women being exempted was fine because under Georgia law, wives were subject to their husbands, and subjecting women to a tax would further add to the husband’s burden.  In 1966, the court struck down Poll Taxes in Harper v. Virginia State Bd. of Education, 383 U.S. 663 (1966).  In that case, the court held that “a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard.”  It further added that “wealth or fee paying has, in our view, no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned.”

In 2018, Florida citizens passed Amendment 4, an amendment to the State Constitution.  This amendment passed with 64.55% of the vote, well over the 60% threshold needed for a constitutional amendment in the State.  In the relevant part, it stated that “Except as provided in subsection (b) of this section, any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.”  The Florida Senate passed a new law stating that “all terms of sentence” included legal financial obligations, namely fines and fees arising from criminal convictions including Restitution.  Florida judges would often turn the fines and fees into civil liens if they determined that an individual was unable to pay (Fla. Stat. § 938.30(6)–(9)). Through a lengthy court battle, the court eventually held that those who can genuinely show that they have the inability to pay their fines and fees can not be barred from voting because of unpaid fines and fees.  

Florida appealed to the Eleventh Circuit, which temporarily stayed the Florida Judge’s ruling, and prevented those who have not paid fines from voting.  The US Supreme Court declined to overturn the stay, although Justices Sotomayor, Kagan, and Ginsburg authored a dissent, stating: "This Court’s order prevents thousands of otherwise eligible voters from participating in Florida’s primary election simply because they are poor. And it allows the Court of Appeals for the Eleventh Circuit to disrupt Florida’s election process just days before the July 20 voter-registration deadline for the August primary, even though a preliminary injunction had been in place for nearly a year and a Federal District Court had found the State’s pay-to-vote scheme unconstitutional after an 8-day trial. I would grant the application to vacate the Eleventh Circuit’s stay."

There’s a reason that Florida is fighting this so much, and it’s because allowing felons to vote has the potential to dramatically alter the outcome of future elections.  

In 2018, Ron DeSantis, the Republican Governor of Florida won his election by 33,000 votes (.4%).  Rick Scott, the Republican Senator from Florida, won his election by 10,000 votes (.13%).  There are approximately 1.4 million ex felons in Florida who this amendment, which was supported by over 60% of Floridians, would’ve made eligible to vote.  Disenfranchised felons comprised 10% of the entire population and 21% of the Black population.  In 2018, Andrew Gillum, Governor DeSantis’s opponent, won 93% of the African American vote, and Bill Nelson, Senator Scott’s opponent, won 88%.  In 2016, Hillary Clinton won 84% of the Black vote.  In 2004, Bush beat Gore by 380K votes, and in 2000, Bush “beat” Gore by roughly 500 or so votes when all was said or done.  

While race obviously doesn’t align perfectly with party preference - if it did, you’d see one party win 100% of the vote from a certain race - these results show that democrats typically win a substantial majority of the Black vote.  When the gubernatorial race and Senatorial races were decided by under 35K votes each, it is easy to see that adding potentially millions of new voters into the pool, and potentially hundreds of thousands of voters of color, could dramatically change the election landscape in Florida and would likely have put Messrs DeSantis and Scott out of their jobs.  

The right to vote is a fundamental aspect of American life and a sign of the freedom of a people.  Being able to have a say in the people who represent you, to vote on bond issues, constitutional amendments, and other initiatives, ties voters directly to those who lead them, and helps to hold those leaders accountable.  Now, there are many arguments against a universal franchise  (Are young people mature enough to vote responsibly? Are old people sound enough to vote? Should we encourage people who don’t intricately know the issues to help decide them?) There are also many criticisms of the current voting system in our country - The anti-majoritarian nature of the Electoral College, the idea that your vote doesn’t matter if you live in an extremely polarized location, etc.  These are all fair questions/criticisms, but there is one thing that has been true throughout history; when the right to vote has been diminished, the rise in authoritarianism is soon to follow. 

We have a massive voting problem in this country.  Since 1900, turnout of the voting age population in the United States has not topped 70%, and in the past 50 years it hasn’t topped 60%.  This has left 40% of the country, nearly half of the voting age public, with their voices not being heard in the governance of our country.  Even in California, a liberal bastion with progressive voting laws, only 50% of voters turned out in the last general election.  (As an aside, if you think your vote doesn’t matter, you are only right if you don’t vote.  If everyone who didn’t vote vote, they could change every single election.  It’s a classic collective action problem and a self-fulfilling criticism.) 

I don’t have a solution for that part, but I know the solution is not to make voting harder.  Make Election Day a National and State Holiday.  Have universal voter registration.  Have abundant polling places and easily returnable vote-by-mail access.  I also don’t have a global over-arching point to make; only that more people should be able to vote and fewer people should be barred from voting.

So go register, do your research on the topics, and then vote.  

A Response to Harper’s Letter

Recently, a number of preeminent public figures signed on to a letter written for Harper’s Magazine criticizing so-called “cancel culture.” As Websters defines it: “Canceling and cancel culture have to do with the removing of support for public figures in response to their objectionable behavior or opinions. This can include boycotts or refusal to promote their work.”  Among the individuals who signed on to this letter are Wynton Marsalis, Margaret Atwood, JK Rowling, Gloria Steinem, Fareed Zakaria, Malcolm Gladwell, and Noam Chomsky.  Over the past few years, “cancel culture” has grown, and the writers claim that those who offer views in opposition of the masses face firing, investigation, censorship, or other punishments.  Their argument boils down to this: Writers should have the ability to write bad ideas without facing reprisals, but with only facing good-faith disagreement, argument, and persuasion. 

With all due respect, this is absolute hogwash.  First, I have paid attention to the rise in “cancel culture” over the past decade and have seen no decrease in the amount of opinions being shared.  Openly, or barely hidden, racist points of view are commonplace amongst right-wing commentators, the twitter mob, Fox News personalities and more.  JK Rowling herself regularly comes onto twitter to share her beliefs/thoughts/points of view.  In the past year, despite the rise in “cancel culture,” there have been op-eds published in notable news organizations denouncing climate change, coming out against removing Confederate monuments, and for using troops against protestors.  While people have faced social opprobrium and repercussions for writing and/or publishing such articles, it has not stopped them from being written/published. 

The writers of the letter couch this as a debate between justice and freedom (yeah, they literally use that example), and yet their argument fails at the halfway mark.   They claim that “the way to defeat bad ideas is by exposure, argument, and persuasion, not by trying to silence or wish them away.”  And yet, what is “cancel culture” but exposing bad ideas, arguing over them, and persuading the masses that they are wrong. 

The problem isn’t “cancel culture,” but people not learning from being “cancelled.”  If someone writes that transgendered individuals aren’t real and then gets social opprobrium launched at them, the exact “exposure and argument” that the writers claim to support, the solution is for the writer to listen, learn, and grow.  If a comedian makes homophobic or racist remarks and is fired from his new job or gets a documentary cancelled as a result of those comments, the result should be the comedian learning that he shouldn’t be racist or homophobic. 

The letter ends with “if we won’t defend the very thing on which our work depends, we shouldn’t expect the public or the state to defend it for us.”  The State does protect against First Amendment violations.  If a state employee was fired for writing an op-ed denouncing climate change, during their non-work hours, I would agree that would be a problem, but that is not what is happening.  The First Amendment protects your ability to say what you want without being arrested/silenced/stopped by the State.  It does not protect you from having to live with the private consequences of your speech (even when your speech is done in a public forum).  If I walk up to my nice old neighbor and tell her that she is a self-righteous ass, I am protected from being arrested for that, but not protected against the rest of my neighborhood excluding me from future gatherings. 

“Cancel Culture” has also shown that it has its limits.  When Louis CK admitted to masturbating in front of colleagues, he was dropped by his agency and lost some shows.  But he is back to performing and selling out shows now.  Scarlett Johansson received backlash for comments about playing a trans woman, but was one of the highest paid actresses last year. JK Rowling, one of the signatories of the letter, has come out on twitter against trans individuals multiple times, but the Harry Potter franchise is alive and well.  Cancel Culture can also recognize when people don’t need to be cancelled.  Aziz Ansari was accused of sexual misconduct, but there was a chorus of op-eds, like this, about how it was overblown, and Aziz has since come out with a Netflix special. 

The letter asks for journalists to have it both ways.  They want to be able to publish whatever they want, but they don’t want to face any of the repercussions of being wrong, distasteful, transphobic, homophobic, racist, or anything else they are.  The internet is a fantastic tool and its function as a marketplace of ideas is one that should be protected.  But as with any marketplace, if you are selling bad goods, you should be prepared for bad reviews and to not last long in that marketplace. 

Can cancel culture go too far?  Perhaps.  But again, when it does, those who think it has gone too far, like all of these oft-published, well-known, public figures, can push back on it . . . as they did here. 

I want to end this with what I think we should do regarding “cancel culture.” We should learn from it. We should challenge not only the behavior/opinions of ourselves, but those of others as well. We should engage in earnest arguments, debate, and disagreements. We should listen, engage, learn, and change, if needed. If someone does all that and still disagrees, we should look at them as a whole and decide if that one opinion of theirs warrants the end result, be it them being fired, “cancelled,” or just not being someone we listen to anymore.

I Believe in America

Kevin McCarthy is a Republican member of the U.S. House of Representatives, from the California 23rdCongressional District (area near Bakersfield – pop. Roughly 750K people.).  He is also the House Minority Leader.  On July 5th, 2020, he tweeted: “Dear Democrats: You cannot save America if you don’t even believe in her.”  As a Democrat, a Californian, and someone who wholeheartedly does believe in America, this struck me as an absurd statement, and I felt that it was necessary to respond. 

Dear Leader McCarthy –

 You recently tweeted “Dear Democrats: You cannot save America if you don’t even believe in her.”  This statement struck me, as it is patently non-sensical, and simultaneously unimaginably bold.  I am a democrat.  I’ve been a democrat since I first started studying government and I’m still a democrat to this day, 15+ years later; I can promise you that I do believe in America. 

First, assuming for a second that you meant this literally, I believe that America exists.  I’ve been to Washington DC, I’ve seen the Capitol Building and White House, I’ve crossed border checkpoints into Mexico and Canada, and I have money in my pocket right now that says it is legal tender in the United States, and that I’ve offered, and has been accepted, in exchange for goods and services.  

I went to law school and studied the constitution of the United States, I’ve worked in the Hart Senate Office Building, for a United States Senator, and I’ve walked through the halls of Congress where representatives, like yourself, passed and negotiated laws regulating the United States of America.  

I’m a public defender and have represented people in court who the government has charged with crimes.  I have been appointed because the United States Supreme Court ruled that all citizens get appointed a lawyer if they can’t afford one, and I have been actually appointed.  Furthermore, I have made arguments, and had judges order my clients released, because of those arguments and because juries have found them to be not guilty of what the government charged.  What could be better proof that America exists then actually seeing American laws be followed, not only by people subjected by those laws, but by people in charge of enforcing those laws.  For all these reasons, and more, as a concrete object, I am certain in my belief that “America” (specifically, the United States of America) exists.  

Now, assuming that you didn’t mean did I think America was real, which I’m hoping you didn’t, what could you mean?  Could you have meant that I don’t believe in the principals that lead America’s founding fathers to declare their independence?  They believed that (1) all men are created equal, (2) all men have certain unalienable rights, such as life, liberty, and the pursuit of happiness, (3) that governments are instituted to secure these rights, (4) that government derives it’s powers from the consent of the governed, and (5) that the people have the right to abolish or alter, “laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”  See, generally, Declaration of Independence.

Now, I surely believe in these ideals: That all men are created equal, that we all have unalienable rights, that the government’s power comes from those governed, and that we may, to borrow a phrase, petition the government for a redress of grievances,” if we are unhappy with the current state of affairs.  I can tell my government leaders that I believe they are wrong, that I fundamentally disagree with their actions, and that I am advocating for their removal from office, I can do so arm in arm with my fellow citizens of other races, genders, sexual orientations, relative wealth, and I can do so with no fear of harm coming to me at the hands of my government.   

Now, that being said, I am a white, male, upper-middle class, educated, member of our society, and so I recognize that I have the privilege of being able to engage in those actions without fear of repercussion.  That right exists for me, as it does for others, but it does not exist for all people.  I acknowledge this disparity, but it doesn’t make me doubt the existence of my country, the ideals that my country stands for, or the as-of-yet unrealized dreams of our forefathers.  For, even from the beginning, they envisioned that the constitution was not perfect, and there would need to be changes and amendments down the line, as evidenced by their creating a method through which we can amend the Constitution to create new rights and abolish unjust laws.  This is the America that I believe in.  I also believe that she, much like myself, is not the best version of herself, and I will constantly strive to improve her and let her “live out the true meaning of [her] creed.”

Which brings me to my next point. You start your tweet with the idea that America can’t be saved if we don’t believe in her.  So either you think America needs to be saved – in which case we agree that there are serious flaws in America, but that it can be delivered, by the struggle and hard work of its citizenry, to its highest form, but which would consequently render your second phrase about Democrats not believing in America, because we don’t like the way she is currently being manifested, meaningless, if you yourself acknowledge that she can need to be saved (you wouldn’t need to save something that isn’t broken or endangered), or America doesn’t need to be saved, in which case it shouldn’t matter to you that Democrats can’t save her, which makes me wonder why you’d need to tweet the thought in the first place.  

You are not my personal representative (Thank God) but you represent my state, of which I am exceedingly proud, and when you tweet utter, nonsensical, garbage like this, it makes me embarrassed that you are member of the United State House of Representatives.  Although I don’t need any more proof, one more example of my belief in America is this: I can say that you are an ignorant buffoon, an embarrassment on the state and country that I love, and that I hope you lose your next election in a landslide, and have no fear of retribution in so saying.

 I am a Democrat and I believe in America.  Do you? 

District Attorneys Are Elected . . . VOTE!

The District Attorney has substantial power in the criminal justice system. They get to choose whether or not to charge cases, what charges to charge, the offer on the cases, whether or not to dismiss charges, etc. While judges have some authority to accept or reject plea deals, sentence clients after trials, rule on motions, there are many things they can't do, such as engaging in judicial plea bargaining, meaning that if the DA charges an offense, the judge can't offer that the defendant plead to a different offense, or if they charge multiple offenses, the judge can't dismiss one and accept a plea on another, on his own motion. And, when judges have power, the bench often takes the word of the prosecutor as gospel, and is loathe to disturb what the prosecutor wants. While substantial criminal justice reform should still be the goal, local elections matter. These are just a few of the ways in which changing the District Attorney (or her practices) could substantially affect the criminal justice system in California.

In California, crimes can be categorized as infractions, misdemeanors, or felonies. Some felonies are known as strike offenses, meaning they fit into California's Three Strikes Law, allowing increased sentences for people who have suffered prior convictions of those specific crimes. Some strikes are "Serious Felonies" and some are "Violent Felonies." If an individual has suffered a prior strike, they are ineligible for probation, must serve any prison sentence in State Prison (as opposed to local county jail "prison"), and will serve a term that is twice the term otherwise provided. If someone has prior strike offense, and is charged with (and convicted of) a current strike, their is a 5 year enhancement that is added automatically on top. The DA often waits to add this until an individual decides to fight their case at a trial. While some strikes (homicides, rapes, etc) are serious and violent (to use common vernacular) some are not, such as violations of Penal Code 422, threatening someone, (such as saying "I'm gonna kill you." during an argument, assault with a deadly weapon (can be a conviction even when nobody is injured), or Estes Robbery (shoplifting where there is any force used to take the items, including shoving an employee out of the way). I mention these not because they are mild offenses, but because if someone commits one of them once in their life, they are subject to additional draconian sanctions, even potentially years later.

In the typical process, when an individual is arrested for a crime, the police write a report and forward that report to the District Attorney for prosectuion. The District Attorney can review the report and then decide what charges, if any, to charge. At this point, it is not up to the police, the alleged victim, or anyone else besides the District Attorney, if the charge is filed or not, or, once filed, continued to be prosecuted. The individual is then arraigned in court and told of their charges and asked if they want to speak to a public defender or if they can hire their own attorney. The District Attorney will then give the defendant an "offer" to resolve their case, usually involving pleading to one of the charges, or multiple of the charges, or a reasonable related charge, for either probation, probation and custody time, probation and time on the Sheriff's Work Project or Home Detention, County Jail "Prison" just longer sentences in the county jail) or State Prison. If the individual wants to accept that offer, they can, or they can provide a counter-offer. If they don't want what the DA is offering and the judge is unwilling or unable to give a different offer, they are forced to set the case for a preliminary hearing/trial. At that point, the offer usually increases. The typical rule is that when an individual goes to trial, if they are convicted, the sentence that they get will be worse than the offer they got before trial. As an example, a client with an offer of the Low Term in State Prison (often 16 months) will typically get a Mid Term (2 years) or Upper Term (3 years) sentence after trial. The judges and DA's explain it is because the judge got to listen to all the facts during the trial, and the defendant did not take advantage of early resolution to save the court's resources, but it is, in all but name, a tax for going to trial and exercising one's rights.

1. The DA routinely charges 11377s (simple possession of methamphetamine for personal use) as felonies for clients who have prior superstrikes and/or offenses that require them to register as sex offenders.  If the client has a prior strike, the MINIMUM amount of time that an individual is looking at for simple possession of meth is 32 months in State Prison. The DA could charge these as misdemeanors, or as felonies still, but choose not to use the prior strikes.  When the prior strike is charged, it is up to a judge to strike it to avoid the 32 month prison sentence.  Often, the judge will not due this due to a client's prior criminal record.  

2. When someone has suffered a felony conviction, the person is prohibited from owning or possessing any firearm or ammunition FOR LIFE.  (Regardless of whether or not the original crime involved a firearm, or the age of the prior offense.)  The DA routinely files felony charges against people who are found in possession of one (or just a handful of) bullet (or non-functioning firearms).  If an individual has a prior strike offense on their record, the MINIMUM offer they can face is 32m SP if a judge is unwilling to strike the strike.  

3. When the police have acted in an unconstituional manner to gather evidence, the defense can file a 1538.5 motion, to suppress the evidence that was found so that it can't be used against them.  The DA will often keep an offer on a case open until the 1538.5 hearing, meaning that they pressure defendants to take a better offer before litigating the legality of police action, and then, if a judge rules against the defendant, and allows the evidence, the offer will increase.   Solely because the defendant challenged the potentially unlawful police action. 

4. There are two main charges relating to resisting police officers, Penal Code 148 and Penal Code 69.  The District Attorney will often ask that the defendant stipulate that the Police acted with probable cause (to forestall a civil action against the officer) when agreeing to dismiss one of these charges.  

5. In Sacramento, Bodycam footage or Dashcam footage is often not turned over until after a defendant has set his case for a preliminary hearing.  This means that they do not have the benefit of determining if the police acted responsibly before deciding to forego early resolution offers (which usually are more lenient).  

In 2018, 280,000 people voted in the District Attorney election in Sacramento. Anne-Marie Schubert won that election by just over 70,000 votes. Sacramento County has a population of 1.55 MILLION people. Only 310K of the 750K registered voters voted in the primary election where Anne-Marie Schubert won a majority of votes, obviating the need for a general election. That means 440K voters who were registered to vote in 2018 didn’t vote for the local DA. Not only did more registered voters not vote than voted, but 5.5 times more people didn’t vote than the spread. If we can get out the vote to either vote in a progressive DA who believes in REAL criminal justice reform, or to put pressure on Anne-Marie Schubert to change, we can make a real difference, but we have to VOTE!

Just Stop

This is an incomplete thought, but, as this website was built to yell incomplete thoughts into the void, here goes:

In just the past few weeks, since the country has been shut down by shelter in place orders, we have seen at least five incidents go viral involving police use of force against minority subjects. At what point do we say that it is enough?

On April 14, Steven Taylor was in a San Leandro Walmart. Steven Taylor had previously struggled with paranoid schizophrenia and bipolar depression. He was “wielding” an aluminum bat and was refusing officer’s commands to drop it. Officers both had their Tazers out, and he was shot with the tazer first and then shot with a real gun. He died.

On April 27, an LAPD officer punched a detained, unarmed man, multiple times. The video shows the man did not fight back and the officer clearly was the aggressor.

On April 28, a Rancho Cordova police officer detained a juvenile individual for allegedly participating in the sale of alcohol. The individual was young, said he was 18, and was detained. While on the ground, the officer shoved the child’s face into the rocky ground and attempted to strike him multiple times.

On May 3, officers, allegedly enforcing social distancing protocols, approached two individuals who security video shows were minding their own business outside of a store. They detained both individuals, being rough with them both. Then, a bystander, who was watching the police, was approached by one of the officers with his taser drawn, and, while swearing, tells the bystander to move back, then tackles him to the ground, repeatedly hitting him.

On May 6, former DA investigator and police officer Gregory McMichael and his son Travis follow Mr. Arbery and end up shooting him after cutting him off.

Five incidents in fewer weeks than that. Two deaths, and five other individuals assaulted by officers. And these are only the cases that have gone viral. These are only the cases that are caught on camera. Every day, as a public defender, I see bodycam/dashcam/security footage video of officers using force against suspects. Sometimes the suspects are seen committing crimes, sometimes they are merely suspects, and sometimes they respond with violence towards the officers. But often they do not. Often the entire confrontations are initiated, escalated, and ended by officers. And most of the time, the officers use of force does not come under investigation. Their use of force is incidental to whatever the individual gets charged with, so it is not subject to a suppression hearing, it does not negate any crime they may have committed, and sometimes there is no injury, or at least no injury great enough to justify a civil suit or a 1983 action. There is no recourse, and everyone goes about their day, the victim instilled with further dislike of the police and the police instilled with the belief that their actions are beyond reproach .

In Sacramento, officers going through the academy would start their Use of Force training with a montage of officer funerals over the speech from Any Given Sunday, wherein the coach refers to the other team as “the enemy” and urges them to be aggressive. As the DOJ concluded in their 2019 report into the Sacramento Police Department: “Simply put, in the first exposure recruits have to use of force principles, SPD appeared to characterize officers’ worlds as one in which they face constant war--one in which they either win or die. No matter how much subsequent tactical communication, de-escalation, and principles of the sanctity of life may be mentioned in the remainder of the academy, SPD’s introductory message to recruits was that they must be warriors, prepared to fight the community at any moment.”

I don’t have a solution for this. If I did, I would be trying to fix it. I know it starts with better initial training, more community engagement, implicit bias training, better recruitment, stronger restrictions on use of force, and harsher sanctions for violating use of force policies. But mostly, we will have to change the culture of a country that has always viewed law enforcement (from wild west shootouts, to J. Edgar Hoover, to the Texas Rangers, to Training Day) as gritty heroic gunslingers who lay down the law. We honor our first responders and officers at every turn, and vilify those who speak against them.

I almost don’t want to include this, because I don’t believe it is relevant, and I believe it is used as a defense too often, but my job puts me in contact with many in law enforcement who are good, honest, kind, people. Officers who don’t want to use violence against others, who want to tell the truth, who legitimately want to help their community, so I know that those officers exist. However, it also puts me in contact with officers who jump to the use of force, who leave important details out of reports, who assume guilt, who blatantly lie, who profile/sterotype/etc.

Anyone who is called for jury duty and points this out is kicked by the prosecution, and sometimes by the judge “for cause”, for being unable to be fair, yet the dozens of potential jurors who are married to law enforcement officers or raised by law enforcement officers who “trust them” or “think they are trying to do their job in a tough environment” are left on.

I’ll leave you with this. Imagine being a young minority individual who is arrested for an assault. You had a fight with someone. They started it, but they also called the cops and they said you started it, and they came out on the worse side of it and there are no other witnesses. They are a young white professional and got their nose broken and you are now facing a Felony and a Strike offense. When the officers showed up, you hadn’t felt that you had done anything wrong, but get thrown against a fence and then shoved to the ground . . . maybe even punched yourself. In the commotion, the officer injures his knee and says that you hit him back. There is no bodycam, it was malfunctioning that day, and so you get charged with a felony assault on an officer. It is the officer’s word against yours. You couldn’t make bail, so, although you’re wearing civilian clothes, you are sitting at counsel table and the judge has told the jury you are in custody and the officer walks in in a freshly pressed uniform. The victim walks in in a suit and tie, maybe with a victim advocate in tow. You see any person who claims that there are racial disparities in the criminal justice system (a fact backed up by more studies than I could even mention) or who proclaims a distrust of police gets kicked off the jury, while those who proclaim a love of police may be kicked, but the defense only has 10 peremptory challenges to use. Now, put yourself in that situation, a not uncommon one, and ask yourself if you’d trust the system. Ask yourself if you’d believe that justice is being done.

Courts get their legitimacy from the consent of the governed. When courts aren’t seen as legitimate arbiters of justice, they slowly lose their efficacy in providing deterrence, structure, and punishment.

*******

I wrote the above before officers in Minneapolis kneeled on the neck of George Floyd for 5+ minutes, depriving him of oxygen, and murdering him.

I wrote the above before a woman in central park used 911 and a “hysterical voice” to sic the police on an African American man.

I wrote the above before the police shot tear gas into demonstrators protesting the killing of George Floyd, but sat by and watched as armed white protesters invaded government buildings to reopens hair salons and restaurants. I continue to be horrified by the racism, both overt and covert, that is on display in this country.

We need structural change in our institutions and we need it now.

We need people to speak out against hate and racism and we need it now.

We need change. We need big radical, structural, monumental change in the way we police, prosecute, and dispense justice.

Steven Taylor - San Leandro, CA - April 14

https://twitter.com/i/status/1251679673785839616

LAPD - Los Angeles, CA - April 27

https://ktla.com/news/local-news/video-shows-lapd-officer-striking-man-repeatedly-in-boyle-heights-prompts-investigation/

Rancho Cordova Juvenile - Rancho Cordova, CA - April 28

https://twitter.com/juliancastro/status/1255251138401665024?s=21

NYPD Social Distancing - New York City, NY - May 3

https://youtu.be/oSkHkOewR3s

Ahmaud Arbery - Brunswick, GA - May 6

https://www.youtube.com/watch?v=TFmsdAtOaC4

George Floyd - Minneapolis, MN - May 25

https://youtu.be/ZWzkgKPZWcw

Christian Cooper - New York City, NY - May 25

https://www.nytimes.com/video/us/100000007159234/amy-cooper-dog-central-park-police-video.html

Bernie Isn’t The Problem

I’ve recently read several impassioned tweets, read a slew of articles, and listened to several perfervid arguments that if Bernie Sanders wins the nomination, democrats will have elected Trump to a second term.  

I don’t particularly like Bernie Sanders.  I think that the damage he did to Hillary Clinton’s campaign in 2016, his incessant attacks on her character and credentials, and his refusal to gracefully concede when the nomination was out of reach has not been talked about enough, and he has seemingly not ever realized and/or recognized the harm he did to her campaign.  I think his burn-it-all-down, never-settle, incrementalism-is-death, mentality is not the way that you accomplish change, and I think that his refusal to address glaring holes in how he will pay for his plans, get them passed in a divided congress, or bring supporters along with him when all evidence points to the contrary, is under-scrutinized.

That all being said, to all the tweeters, writers, arguers, and pundits out there saying that Bernie winning the democratic nomination will hand the election to Trump, I have one thing to say:  you are all full of shit.

I have three arguments against this message.  

First, we don’t have to look that far back in history to see an example of a populist with radical ideas, who eschewed and cast off the party elites, and was opposed at every step by the press, the pundits, the party, and the establishment, and fervently hated by the other side, go on to win the presidency.  Donald Trump is not Bernie Sanders. I can not stress that enough. Bernie Sanders, despite his fault, is an earnest politician, a believer in his causes, not a racist, not a xenophobe, believes in science, and truly wants what he believes is best for this country. He may call himself a democratic socialist, but his policies are an extension of those that got FDR elected four separate times.  But, in this way, Donald Trump and Bernie Sanders are similar. All the same people now saying that Bernie could never win were saying the same thing about Trump four years ago. Before Obama ran in 08, nobody believed that first-term African American senator could possible win. People win elections by getting more people to turn out to vote for them. There is no such thing as electability. If you can’t see that after the past three presidential elections, then I can’t help you.

Primaries are designed to pit the factions in our parties against one another.  They are designed to test the boundaries of the party platform. They are designed to battle-test the candidates so that when they reach the general election they have dealt with the biggest pitfalls of their campaigns and are prepared to go up against an onslaught of negativity.  Therefore, it is not surprising that we are seeing attacks on Bernie from other liberals, just as we saw attacks on Trump from the likes of Lindsay Graham, Ted Cruz, Jeb Bush, and other conservatives in the run-up to the general, and, for the most part, they quickly fell in line behind him.

Secondly, all of the people who are making these arguments are the same people who were arguing that of course Hillary would win, and Trump could never recover from the Access Hollywood tapes, or his proposed Muslim bans, or his “Mexicans are rapists” comments, or his attacking a Mexican judge or gold star family.  Before just buying everything these talking heads are telling you, sit back, engage in some self-reflection, and acknowledge that all of the politicians/pundits/talking heads may not be correct, and they, and quite frankly you, may not know everything. Gasp!  

Third, even if democrats nominate Bernie and Bernie loses, Democrats will not be re-electing Trump.  Republicans will be re-electing him. Words matter, and using this sort of flourish lets moderate conservatives off the hook for staying home or voting for a racist, xenophobic, misogynistic asshole.  Democrats will be standing up for what they believe in and standing strong in the face of strong opposition. What can be more rewarding than that. Imagine if Germany had beaten the United States to building the bomb and won WWII. We would not have been wrong for standing up to the despotism and pure evil of the Nazi regime.  Imagine if the North had lost the Civil War. They would not have been wrong for standing up against slavery and fighting against the literal chaining of our brothers and sisters.  

If Trump wins again, Republicans will have re-elected him.  If Trump wins again, it will be by the same bigotry, xenophobia, racism, hatred, sexism, and fear that elected him the first time.  The GOP will have to wear the Trump re-elect around their neck for the rest of time. Regardless of what happens in the short term, history will not look kindly on the Trump-era of the GOP and the GOP will have their day of reckoning, as do all corrupt organizations eventually.  The way to combat that is not to shy away from fighting it, but to go all out stand for what is right. As Michelle Obama said, when they go low, we go high.

I have one last comment to make.  When there is a persistent narrative that a candidate can’t win, that drives down enthusiasm.  When there is a persistent hum that a candidate is too liberal, or too radical, or too crazy, that drives down their popularity.  In the age of Trump, the most important thing that we can do is to stand up together. We saw the engagement in the 2018 election that ushered in a Blue Wave and we need to replicate and extend that enthusiasm.  Anyone who claims to be a democrat should welcome Bernie Sanders as the candidate. While he may not get everything passed, he will be fighting for things that democrats do and should believe in: a woman’s right to control her own body, gun rights, civil rights, LGBTQ+ protections, dreamer protections, criminal justice reform.  In the first women’s march, we saw the sight it makes and the attention it grabs when millions of people take to the streets. We saw the demonstrations after the Muslim ban when thousands of people flocked to airports. We saw the donations pour in to the ACLU when the Muslim Ban occurred and they made 6 times their yearly donations. When we stand together, we are a formidable force.  We can’t forget that.

If Bernie is nominated, it is incumbent on every single person who does not want to see four more years of Trump to get out and vote for him.  I don’t care if you don’t like him, I don’t care if you aren’t excited by him. I don’t care if you don’t like all of his policies. If you don’t vote for him, you , not “the democrats”, you, will quite actually, be helping Trump win.  Furthermore, it is incumbent on all of us who do not love him to share those things about him that we do love. We can always push him to be better, but we can’t give up on the election or give up on him because we don’t like some of his rhetoric or policies, because on his worst day, Bernie is 10 times the man that Trump is and anyone will be a better president than President Trump.  

Also, don’t forget that the vast majority of the country did not vote Mr. Trump for president.  He received roughly 63 million votes out of a total of 136 million. That means that 73 million people voted for someone else.  Hillary lost by 23,000 votes in Wisconsin, when 150,000 people cast third party votes. Hillary lost by 44,000 votes in Pennsylvania when over 200,000 people cast third party votes.  Hillary lost by 113,000 votes in Florida when over 270,000 people cast third party votes. Hillary lost by 11,000 in Michigan, when third party candidates got over 230,000 more votes.  The NE-2d also was within the margin.  

The race is going to be close, no matter how you cut it, but it is not lost, nor will it be lost if Bernie is the nominee, nor, for that matter, if anyone else is the nominee.  The majority of the country does not approve of Trump, and if we can get out and vote, we can beat him. It’s been a long three plus years, but we only have nine more months to go.  We can do it, but we can only do it together.  

Elizabeth Warren Should Clearly Be President

Elizabeth Warren is the best person for the job.  

1. She is prepared.  

This isn't just a campaign slogan.  She actually has a plan for everything.  You just flat out cannot say that about Joe or about Bernie or about Mike.  They waive platitudes and generalities around, but Elizabeth has taken the time to not only come up with a position, but figure out how she would pay for that position, how she would implement it (getting rid of the filibuster, passing it through reconciliation, taking executive action) and has thought through the end results.  For months people attacked her medicare plan as unrealistic and she came out with a plan that not only covered everyone, but phased it in, and didn't raise middle class taxes.  Nobody has faced the scrutiny that she has with regard to her ideas and she has risen to the occasion every time.  Biden and Bernie just can't say the same thing.

2. She is intelligent.

She is a teacher, a lawyer, a Harvard law professor, and a senator.  She was an educator and an academic long before she was a politician.  After the crash, she was instrumental in creating the CFPB, as a private citizen. She is quick on her feet, she can understand the root causes of things, and she is willing to embrace other points of views and change her mind if she is wrong.  Years before the financial crisis, when everyone was praising the booming economy, she was warning that the middle class was fighting a losing battle against the corporate world and she was right!  

3. She is tough.

After watching the debates, nobody can have any doubt that she could go toe to toe with Donald Trump, if he even decides to debate anyone (I think he will).  But look what she did to Mike Bloomberg.  She could do ten times that to Donald Trump because she has ten times the ammunition against him.  When she was in the Senate, she stood up and spoke truth to power, claiming that Jeff Sessions was racist.  She was told to stop by Mitch McConnell, but kept on going and was sanctioned.  What did she do after that . . . turned it into a slogan and million dollar fundraising push.

4.  She is an avowed capitalist.   

She used to be a republican and came to believe, after years of studying the subject, that republican policies were not the best way to move forward.  Unlike Bernie, and the handicaps that come with him being a democratic socialist, she has always been a democrat, always been a capitalist, and has always embraced the free market.  

5.  She does not have the liabilities that Joe and Mike and Bernie have.

Bernie is incredibly divisive.  Half the party hates him.  Half the independents hate him and think he is a socialist who will turn America into Venezuela and Donald Trump will spend the next six months hammering that and frothing up his supporters to turn out en masse to stop him.

Joe is old and dottering.  He has failed to capture the enthusiasm of the base of the party.  He is not sharp on a debate stage, Trump would run circles around him, and he doesn't have any plans/ideas/etc of his own to push the country forward. Even after living through the Obama and Trump presidencies, he believes that Mitch McConnell and the Republicans will act in good faith.  There's a reason that it took so long for the party to get behind him.  He is not a strong candidate.  

Mike is also incredibly divisive.  He has been a billionaire for so long that he doesn't understand what the base of the party, the people that we need to phone bank and knock on doors, and actually put in the work that gets people elected, wants and so will not have as effective of a ground game even with all of his money.  He comes with mountains of liabilities, NDAs, stop and frisk, redlining.  He used to be a republican, he has recently funded Lindsay Graham and other republican's election campaigns in tight races.  If in office, he will continue giving billionaires tax breaks.  Yeah, he has money, he has done some good things, but he can use that money as a private citizen.  Not to mention that he is not going to surpass Biden or Bernie in the polls, and if he is elected, there is a large swath of the democratic base that will likely not see a difference between him and Trump.  

6.  She is the smartest candidate.  She is the most prepared candidate.  There is no doubt on whose side she stands.  She is strong, dedicated, and has unmatched energy.  

And if you need another reason, she would simply be the best president.  There is nobody left in the race, and nobody gone from the race who used to be running who I would be more comfortable with as my president.  

I'll vote for whoever it is against Trump. I'll vociferously support whoever it is against Trump.  But Warren would be the best president.  And I will be very proud to cast my vote for her.