Citizen by birth: The rest of the parts

I skipped a section which was about Congress legislating who is a citizen and what decisions that they should make.

Civil Rights Act of 1866

After the Civil War, there was a question of what would happen with the now freed slaves. The Civil War freed them but the rights of the freed slaves were not immediately clear. Nor was it clear how they should be protected.

Proceeding the 14th Amendment, Congress worked to pass the Civil Rights Act of 1866. In a Congressional Research Service report titled Birthright Citizenship and Children Born in the United States to Alien Parents, Legislative Attorney Alexandra M. Wyatt researched the debates from the Congressional Globe for the session in 1866. Wyatt reports the following from this debate:

Senator Edgar Cowan, often cited by modern opponents of birthright citizenship–objected to the citizenship provision by asking whether “it will not have the effect of naturalizing the children of the Chinese and Gypsies born in this country.” Senator Trumbull stated that it would, “undoubtedly.” As Trumbull stated clearly in the face of Cowan’s xenophobic remarks, “the child of an Asiatic is just as much a citizen as the child of a European.” Echoing Trumbull’s definitive statement, Senator Morrill asked the Congress, “As a matter of law, does anybody deny here or anywhere that the native born is a citizen, and a citizen by birth alone?” Morrill cited,” the grand principle both of nature and nations, both of law and politics, that the native born is a citizen, and a citizen by virtue of his birth alone.” To erase any doubt, he went on to state that “birth by its inherent energy and force gives citizenship.”

President Andrew Johnson who had ascended to the presidency because of the assassination of Abraham Lincoln vetoed the Civil Rights Act of 1866. Johnson noted in his veto message his understanding of the citizenship clause of the bill. He wrote that “every individual of those races, born in the United States, is by the bill made a citizen of the United States.” Because Andrew Johnson was a terrible president, he vetoed the bill.

Undeterred by the President’s veto, Congress overrode the veto and two months later, Congress moved forward with making the citizenship clause permanent in the 14th Amendment.

The 14th Amendment

Senator Jacob Howard of Michigan was the one who proposed the language of the citizenship clause. In his explanation, he said that the clause would declare “that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.”

Senator Edgar Cowan opposed Howard’s citizenship language because he agreed that it would give citizenship to children born of foreign aliens on US soil. His fear was that it would increase the number of Chinese in California and Gypsies in Pennsylvania.

I’ll pause here. The fears of Gypsy immigrants and Chinese immigrants are comparable to the fearmongering that we currently have over immigrants from Latin America and to a certain extent the fear of refugees from war-torn Middle East countries. The charges of immigrants stealing jobs was explicit with Chinese immigrants, specifically. This eventually led to the Chinese Exclusion Acts. The Chinese Exclusion Act was the first exclusionary law that our country passed. I would argue that prior to this law, there was no illegal immigration. While Gypsy immigrants were not typically referred to as jobs-stealers, they were often attacked for not being sufficiently American and were fairly regularly discriminated against.

Senator Cowan’s objection to the Citizenship Clause was understood to be factually accurate. Further, other Senators argued that making these children was a matter of sound policy. Senator John Conness of California:

The proposition before us…relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens…I am in favor of doing so…We are entirely ready to accept the provision proposed in this constitutional amendment, that the children-born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others.

Of course, there are some who would jump on the debates of the 14th Amendment to show that children of undocumented immigrants would not be citizens. They argue that Senator Howard when proposing the citizenship clause made a mistake to prove that they are correct. He noted that the amendment would

not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.

This seems damning to my argument. Except, if we look at it. Elizabeth Wydra, in her report, Born Under the Constitution: Why Recent Atacks on Birthright Citizenship are Unfounded, notes that it doesn’t make the argument anti-citizenship clause proponents make. In her report, she argues that this is not a list of several categories of excluded persons because he did not say, foreigners, aliens, or families of diplomats.

Instead what Senator Howard was arguing, which was part of the debate at the time, is that diplomats and ambassadors while being physically here remain in their home country. This is the concept behind diplomatic immunity. Even if, as Wydra notes, it is a legal fiction.

She may get this term from a debate regarding the citizenship clause. Senator Benjamin Wade of Ohio, during an argument about who would not be automatically granted citizenship said the following:

I know that is so in one instance, in the case of the children of foreign ministers who reside ‘near’ the United States, in the diplomatic language…By a fiction of law such persons are not supposed to be residing here here, under that fiction of law their children would not be citizens of the United States.

The arguments surrounding the 14th Amendment do not seem to indicate that the children of foreign aliens should not be citizens. Further, as we’ll see, by making it an actual Amendment to the Constitution, they were trying to protect citizens from the whims of a majority controlled Congress to revoke citizenship.

Based on the arguments from the Congressional Globe, Wyatt argues that “the Framers of the Fourteenth Amendment believed that providing citizenship to persons born in the United States, without regard to race or color was a long-overdue fulfillment of the promise of inalienable freedom and liberty in the Declaration of Independence.” We do not put inalienable freedoms put to a vote. As the Senators argued when they passed it, the 14th Amendment was intended to establish “a constitutional right that cannot be wrested from any class of citizens, or from the citizens of any State by mere legislation.”

Birthright citizenship after the 14th Amendment

During the arguments of the 14th Amendment, there were many arguments about the potential for a rise in immigration. Many were afraid that some immigrants would try to come here specifically to get the citizenship status of the United States. This was not an unforeseeable problem, as some has suggested. The Framers of this Amendment argued that legislation by itself would not be enough to revoke the 14th Amendment because it is an inalienable right.

While there has not been a court case that directly challenges the 14th Amendment, there have been court cases that affirms the citizenship clause and the idea behind birthright citizenship. Further, any legislation that targets specific nationalities or tries to revoke already held citizenship by children of immigrants would not be constitutional.

In 1982, Plyler v. Doe, the Supreme Court found that the 14th Amendment extends anyone “who is subject to the laws of a state.” This case was brought because the state of Texas was withholding funds for children who were not legally admitted and permitted schools to deny enrollment to children who were not legally admitted. In a 1985 case, INS v. Rios-Pineda, the court found that a child born on U.S. soil to an undocumented immigrant was a U.S. citizen from birth.

The consequences of ending birthright citizenship

Margaret Stock in a paper for Cato, argued that birthright citizenship is arguably the reason that the United States has become the superpower that we are. Without birthright citizenship, thousands of children who are born by undocumented immigrants or who otherwise are illegally in the United States would become stateless. These children will have no ties to any one country. They will likely be deported, at our expense. If they are not deported, they will be able to attend school through high school. Again, at our expense.

Upon graduating high school, they will be unable to join the workforce in an official way. They will not be able to go to college. They will not be able to serve in the military. They will not be able to start their businesses or receive bank loans. They will not be able to contribute to Social Security, Medicaid, or other payroll taxes. They will not pay federal income taxes.

Losing these taxpayers will be significant because there will be a larger bureaucracy that would handle the birth of children as different classes of citizens. Currently, I can present my birth certificate or certificate of live birth to be able to claim that I am a citizen. This is issued by a state or local government. In order to ensure that my child is a citizen, I will have to present this information as well as my partner’s to ensure that we receive the birth certificate and eventually the Social Security Number and Card. Who will I present this information to, though? Will it be presented to my OBGYN? The birthing team? Will I have to prove this to the Social Security Administration? Or Health and Human Services? What information is going to be safeguarded to ensure that my documentation is not fraudulent? What if the father of a child with an undocumented immigrant mother turns out to be someone different than who is listed? Will citizenship be revoked, if not, what mechanisms are in place to ensure it is not?

This is an undue burden on those of color and who are poor. Millions of people in the United States will be flagged as illegally being here or have questions about the eligibility. They will disproportionately have to prove their citizenship to confer the rights of citizenship to their children.

Further, for those who are here via illegal immigration, whether it is undocumented immigration or overstaying of the visa or what have you, this could potentially move them to have their children away from hospitals and to be at home to not be subjected to discriminatory laws or enforcement of immigration laws. This could potentially lead to the deaths of many children and mothers.

As it stands, the revocation of birthright citizenship is ahistorical, immoral, and unconstitutional. The idea of not conferring citizenship by birth is not in the traditions of the United States and goes against the blatant text of the Constitution to assauge misguided fears of immigrants stealing jobs or being criminals.

I will not stand for it.

A quick electoral guessing game

Here is the Presidential voting results since 2000 for a major metropolitan area. I’ll give you more information about this area for a later post

Year	R Vote Share	R Raw Votes	D Vote Share	D Raw Votes
2000	48.06	27660	48.62	27984
2004	50.78	34938	48.74	33534
2008	50.21	33634	47.71	31958
2012	49.49	31820	48.67	31297
2016	56.88	35205	37.69	23328

A letter to State Senator John Murante regarding winner take all legislation in Nebraska

Dear Senator Murante and staff,
In the past, Senator Murante has been a sponsor of legislation to change how Nebraska allocates our electoral votes. The state can potentially split the electoral votes based on how a Presidential candidate performs in each Congressional district. In the time since Nebraska made this change, the split has only happened once, in 2008 with Barack Obama.
There was talk last session when the legislation died that the Senator would reintroduce the bill in the next session and the next and the next until the legislation passed. The idea seemed to be that the Democratic candidate for President would have a good chance to win Nebraska’s 2nd Congressional District and the electoral vote associated with it.
While the Senator’s district does not cover all of the 2nd Congressional District, there is a number of constituents of his who live there. Many have seen it as a cynical ploy from the Senator on the off chance that he would seek the Congressional seat, some day. It would be tougher for a Republican candidate to win the district if the President was able to carry the district (although, as we know it happened in 2008).
With Nebraska being close to a one party state, many Democrats and moderates increasingly find it frustrating that their voices are not heard in the state. Often times good governace is sacrificed in the effort to help consolidate power by Republicans and keep many from having their voices effectively heard. The political science research suggests that competitive elections have a positive associate with increasing turnout for later elections. This is critical for all states to try to increase voter turnout. Because there are less people in each Congressional District than the state as a whole, many find that their voices matter more for these Presidential elections with the potential split of electoral votes from Congressional Districts. With the brain drain that Omaha has been experiencing for college graduates leaving the state, it is critical that we do whatever we can to help encourage them to stay. Simply allowing the current law on the books is a potential draw for younger adults who hear about the city from many different news outlets across the country. Moving to winner take all electoral system will only exacerbate the issue. Many college graduates want their voices heard.
After Senator Murante voted in favor of repealing the death penalty and subsequently voted against overriding the veto, he cited the overwhelming response from his constituents as to why he changed his mind. I am asking Senator Murante to reconsider his position on changing Nebraska changing our electoral system to winner take all. This will make many people feel that their government is not listening to them, that their votes don’t matter, and will drive even more young people away from Omaha and Nebraska at a time when we need them the most.
Sincerely,
Josiah

5 things to watch in every state: Montana

Montana is such a weird state for electoral politics, really.

Montana Gubernatorial election: The current Governor of Montana is a Democrat. Democrat Steve Bullock. This tends to confuse people who think that states like Montana and a few other states like to elect Democrats at the state and local level. Bullock is running for re-election. He is facing Republican Greg Gianforte. Pretty much all of the rating groups, say that this rate is lean Democratic. The polling for the state shows s a close race between Bullock and Gianforte. It’s important to watch because if Gianforte wins the election, Republicans will hold the State Senate and State House in addition to the Governor’s mansion. Bullock won election to the Governor’s mansion with 49% of the vote in 2012. Barack Obama lost the state by 14 points at the same time. It’s possible that Trump’s style dos not match well with Montana voters which could hurt both Trump and other candidates trying to hold onto his coattails. This election is going to rely on Bullock to outpace Clinton in the state which seems likely but not guaranteed.
U.S. House of Representatives, Montana’s At Large Congressional District: This seat is currently held by Republican Ryan Zinke. Zinke initially own election in 2014 with 55% of the vote beating Democrat John Lewis by 55,000 votes. Steve Daines won the 2012 election with 53% of the vote defeating Democrat Kim Gillan by 50,000 votes. Sabato’s Crystal ball has this race as likely Republican and I tend to agree. Zinke would have to have Trump fail in the state or run significantly behind Trump at the statewide level. His challenger is Democrat Denise Juneau. Juneau is currently the Montana Superintendent of Public Instruction so she knows what it takes to get elected at the statewide level. While I think Juneau is likely to get defeated, it seems possible that Juneau would be able to pull the upset.
I-182, Medical Marijuana Initiative: Montana legalized medical marijuana in 2004. It was later revised in 2011. This revision limited dispensaries to only having three users. This ballot measure would repeal this limitation and change the way law enforcement agencies interact with medical marijuana dispensaries. Polls are showing that the measure is going to be close (51% opposing the measure, according to the last poll I looked at). But that’s a pretty close ballot measure. I’m interested in watching how it fares, despite my qualms about having so many medical marijuana ballot measures this year.
Montana State Senate District 10: Democrat Deborah Magin is running for this State Senate seat against Republican Steve Fitzpatrick. The seat is currently held by Democrat Brad Hamlett. He won re-election in 2012 with 51.1% of the vote defeating the Republican by 171 votes. That’s a really close election, in which the incumbent held an advantage. It looks like it is going to be a very close election in 2016, as well, and one well worth checking out.
Montana State Senate District 25: Not really sure why this election for the district last took place in 2010. Kendall Van Dyk, a Democrat, was able to unseat the Republican incumbent Roy Brown by 8 votes. 8(!) votes. Can you imagine? That’s really insane. Anyway, Van Dyk was initially considered a potential candidate for the U.S. Senate but dropped out after his wife had their first child. He is not running for re-election. Since the last election took place in 2010, it’s unclear to me how the new state senate seats were drawn for the district. Democrat Jen Gross is facing Republican Donna Huston in the seat. If the district was redrawn to be slightly more conservative, then Gross is likely to lose but we shall see.
Montana Secretary of State election: The current Montana Secretary of State is Democrat Linda McCulloch. She can’t run for re-election due to term limits. Based on previous elections, the Secretary of State in Montana flips control every other election. So it would seem likely that the Republican Corey Stapleton could be able to win the election. He is running against Democrat State Auditor Monica Lindeen. They are nearly tied at fundraising, so it will come down to who can get the vote out on November 8th. My bet is on Lindeen who has been elected but she’s going against party registration numbers so it could be pretty close.

5 things to watch in every state: Nebraska

Ahhh, my home state. Even though we are a Conservative state, there is quite a bit to watch in this state. I wrote a voter guide for the state.

U.S. House of Representatives, Nebraska’s 2nd Congressional District: Moderate Democrat Brad Ashford won election in 2014 against Republican incumbent Lee Terry. District 2 had been a close election in every election except 2010 when Democrat Tom White got crushed by Lee Terry. Jim Esch had twice almost upset Lee Terry (2008 was a lot closer than 2006) and John Ewing had very nearly defeated Terry in 2012, losing by 4,000 votes. In 2014, with turnout much lower, Ashford managed to defeat Terry by close to 6,000 votes. The Libertarian Party candidate Steven Laird received 9,021 votes. Laird is on the ballot, again, in 2016 which will likely help Ashford. Ashford’s opponent this year is retired Brigadier General, Don Bacon. Bacon’s campaign strategy in this election has been to try to make Ashford seem more like a partisan than he really is and that Ashford doesn’t know what he’s talking about. Bacon, for whatever it’s worth, initially called for Trump to step down but then deleted that press release from his website. He has since affirmed his support for Trump. It’s a weird strategy, in my opinion, see below. Currently, as we finished October for early voting, Democrats have a ballot advantage of 6.5 thousand ballots that have been returned. Independents have returned 8,742 ballots as of 10/31. In 2014, Ashford had a 10,000 vote lead in Douglas County. This is to combat a more conservative Sarpy County. The 2nd Congressional District also has a slight registration advantage for the Democratic Party.
Presidential election, Nebraska’s 2nd Congressional District: As most of you probably know, Nebraska can split their electoral votes based on Congressional districts. In 2008, Barack Obama was able to win the 2nd Congressional District and for the first time, able to split the electoral votes in the state. Can Clinton do the same? As I stated above, Democrats are on their way to getting a 10,000 vote advantage in Douglas County. Clinton and the Democratic Party has decided to focus staff and resources here that were not focused here in 2012. This is similar to the Obama pledge in 2008. In order to really pull out the electoral vote split, they need to continue the “get out the vote” effort that they have started. My personal opinion is that Trump and his abraisveness does not play well within the district, certainly, not as well as Mitt Romney. For whatever reason, my belief is that Gary Johnson does fairly well here. The reason being is that while there are a lot of Conservatives in Omaha, we do have a Libertarian streak within us. The other thing to pay attention to is how Mormons in the city of Omaha will vote. Since we’re dealing with a smaller population, there are tends of thousands of Mormons in the city who may end up flipping the district toward Clinton. It’s a real shame that we’re very terrible at counting ballots so we probably won’t know early on in election night if it’s going to flip.
Referendum 426: The Conservative Legislature in Nebraska voted to repeal the death penalty in Nebraska. This was vetoed by Governor Pete Ricketts. When it was sent back to the legislature, they voted to override the veto. Beau McCoy and other Conservatives decided that they were so angered by this action that they would take this to the people. Ricketts contacted State Senators personally to override his veto. He spent time, donating, and his political clout to try to get State Senators who voted to override his veto out of the legislature. Nebraska is a conservative state and it’s a confusing ballot question. You can vote to retain which will retain the repeal. If you vote to repeal, you are going to vote to repeal the repeal. Confused, yet? It’s very confusing. I’ve written about why we should repeal the death penalty (vote to retain on the ballot question) and why I oppose the death penalty. But I think the voters of Nebraska disagree with me and will vote to repeal the repeal.
Nebraska State Senate District 7: This is a very Democratic district (I know, I know the Nebraska legislature tries to dress itself up as nonpartisan) and voted for Jeremy Nordquist in 2012 with 70% of the vote. When he resigned to become the Chief of Staff to Brad Ashford, Governor Pete Ricketts decided to appoint Nicole Fox as his replacement. Fox, a Republican, lost in the primary in 2016, losing by 20 votes to appear on the ballot for the general election. The general election will pit two Democrats against each in the district, Tony Vargas vs. John Synowiecki. Synowiecki is a former legislator for the district. Vargas is an up and comer in politics. I like both of these candidates and am interested if Vargas can end up winning after winning the primary election by so much.
Nebraska State Senate District 31: This is my former legislative district in the state. It pits fairly moderate Rick Kolowski. Kolowski barely won the 2012 election, winning by less than 700 votes. Kolowski’s opponent in this election is Ian Swanson. Swanson is a young conservative who has been endorsed by most of the Republican Party in order to try to take back this Senate district. Swanson’s qualifications are pretty sparse, to be honest. If I’m interested in watching to see if the state senate will be even more conservative than before (which I am) than I am intently watching this election.
Nebraska State Senate District 13: To a less depressing election for me to watch, we have State Senate District 13. Jill Brown is running and facing Justin Wayne. this is another election that I like both candidates so I can’t really decide who I would want to see win but I do want to watch it fairly closely.
Nebraska State Senate, the interference of Gov. Pete Ricketts: The figure that looms large over Nebraska politics in this election and potentially going forward is Pete Ricketts. In District 23, Ricketts had a hand in propping up a challenger to Jerry Johnson. Johnson voted to override a veto for a gas tax hike and providing driver’s licenses to undocumented immigrants. Ricketts explicitly endorsed Les Seiler’s opponent Steve Halloran. Ricketts targeted Seiler because Seiler voted to override his veto on the death penalty and the gas tax. And in District 43, Ricketts also supported a challenger to Al Davis who voted to override Ricketts’s veto. There are more than a handful of reports of Ricketts going out of his way to help challengers to legislators who oppose him. I’m interested in watching this dynamic because Ricketts is effectively saying that he can’t work with these legislators if they oppose him. It should come as no surprise that Ricketts backed away from his initial anti-Trump stance into a pro-Trump stance including a fundraiser for the nominee. As Nebraska faces a $1 billion shortfall, we need legislators who are willing to stand up for their convictions and work for what is right without repercussions from who is essentially their boss.

5 things to watch in every state: Delaware

Oh look another election that is mostly going to be focused on state elections and smaller elections:

Delaware House of Representatives, District 9: Democratic member of the Delaware House, Rebecca Walker did not have opposition in either the primary or the general election in 2012 so it’s hard to compare how she would have done in a Presidential election year. In 2014, Republican Kevin Hensley was elected to the House of Representatives with 3,290 votes which was 340 more votes than Democratic candidate Jason Hortiz. There were 152 votes given to independent Douglas Campbell. That’s not a lot of wiggle room for Hensley to work with. In a Presidential election year, you might expect a Democratic challenger to be able to win the seat. It’s definitely worth watching, just to have a baseline for the district.
Delaware House of Representatives, District 10: Dennis Williams was re-elected in 2012 with 52.1% of the votes which gave him a 449 vote advantage over the Republican challenger. Williams then lost in the 2014 Democratic primary by 126 votes. There were 1,262 votes in the Democratic primary. Williams lost to Sean Matthews. Matthews then won the election in 2014 by 654 votes. So he improved by a few hundred votes which may mean that he knew what he was doing. He is running for re-election against Judith Travis who he previously defeated in 2014.
Delaware House of Representatives, District 11: It looks like I’m just going in order of the House of Representatives districts. In 2012, Republican incumbent Jeffrey Spiegelman received 4,337 votes to win re-election. He won the district by 210 votes over Democratic challenger Lynne Newlin. In a rematch in 2014, Spiegelman was able to win re-election with 3,347 votes which was 1,400 more votes than Newlin. Even in a year that would have been better for Republicans , that is an impressive rebound. It makes the potential of a fall even more entertaining. He is not running for the third straight time against Newlin but rather against Democratic nominee David Neilson.
Delaware House of Representatives, District 29: Democrat William Charles Paradee won election to the Delaware House of Representatives in 2012 with 5,183 votes defeating Republican incumbent Lincoln Willis by 800 votes. Paradee won re-election in 2014 with 3,332 votes defeating Peter Kramer who received 2,471 votes. The margin was much greater in 2014 than 2012. The reason that this is important is that in 2016, there is a potential spoiler who may tip the seat back to the Republicans. Paradee is facing off against a new Republican challenger, Janice Gallagher. Ruth James is running as the Green Party candidate. If James can tip enough votes, she could potentially tip it back to Republicans. Based on 2014, I don’t think there will be a small enough margin for her to do so.
Delaware House of Representatives, District 41: It’s a set up for one of my favorite type of districts to watch in 2016. The set up is that a Democrat wins the 2012 election by a small margin (69 in this case). Then he gets defeated in in 2014 by a fairly small margin (270, in this case) and then a new Democrat runs for election against the incumbent in 2016. Richard Collins is the Republican in this scenario. S. Bradley Connor is the new Democrat running for office in 2016.

5 things to watch in every state: California

I’m going to cheat here. There will be 10 things that I’m interested in watching in California. This first post will just be the statewide ballot measures that I’m interested in watching. With the election less than a forknight away, let’s get it done.

Proposition 55: This is somewhat of a selfish election for me to watch. I did volunteer work in California to pass Proposition 30 in 2012. Part of Proposition 30 called for a personal tax increase for those with incomes over $250,000. The vast majority of the funding, nearly 90% was allocated to fix K-12 schools with an additional 10% going to state community colleges. Proposition 30 also had a sales tax increase. Proposition 55 would extend the income tax increases from Proposition 30 until 2030. Without this proposition, the income tax increases from Prop 30 would phase out in 2018. The income tax rate would continue a 1% increase on taxable income at $263,000 – $316,000, 2% on $316,000 – $526,000, and 3% on incomes over $526,000. It is overwhelmingly supported by Democratic elected officials and opposed by a few Republicans. Liberal blogger Kevin Drum also opposes Proposition 55 because he argues that the California budget was a mess in 2012 and Proposition 30 was needed. But we need a more stable tax structure. Well, yes, that’s true. But the problem is, without the extension of Proposition 30, the budget will likely be a mess, again. I’m not personally that big of a fan of Prop 55 but I am interested in watching it. If you are a casual observer of politics, you probably often hear about how California is going to go bankrupt, if it’s not already.
Proposition 59: This is a dumb proposition. A yes vote for the proposition would encourage state officials to use their authority to overturn Citizens United. I am not a fan of the Supreme Court decision in Citizens United but the proposition also includes the idea of passing a Constitutional Amendment. What does the Constitutional Amendment say? Well, nobody knows. Drafting a Constitutional Amendment for every bad Supreme Court decision is a bad idea. Particularly so in this case, when a fifth Supreme Court justice could overturn Citizens United. Oh well, it will probably pass.
Proposition 62/66: This is pretty straight forward and is one of a handful of ballot measures that would help repeal the death penalty in their respective states. Proposition 62 is a fairly straightforward repeal of the death penalty with a maximum punishment being the life without possibility of parole. Proposition 66 is more or less the opposite of Proposition 62. Prop 66 would keep the death penalty in place, speed up the appeals process, require prisoners on death row to work and pay restitution to the victims’ families. If it gets more votes on November 8, it will supersede Proposition 62, if they both pass.
Proposition 63: According to some, this proposition was more or less part of the political ambition of Gavin Newsom. I’m particularly harsh on Newsom because I think that he is eventually going to run for Governor in 2018 and for President in 2024. Essentially, the ballot measure would require background checks for the sale of ammunition; prohibit large-capacity ammunition magazines; require lost or stolen firearms and ammunition be reported to law enforcement; and prohibit people convicted of stealing a firearm from possessing firearms. Of course, because this is California, the ballot initiative is largely irrelevant since a number of gun control measures were passed this year to ban high capacity ammunition, regulate ammunition purchases, etc. The proposition doesn’t do enough to improve on the gun control legislation already passed. But, since there’s guns on the ballot, enough people might oppose it.
Proposition 65/67: Proposition 65 and 67 are both about the ban on single use plastic bags in grocery stores. Proposition 65 would redirect funds collected would be redistributed to the Wildlife Conservation Board. The idea is to change the 10 cent fee into a tax to make it unpopular, in my opinion. I’m interested to see if the confusing wording will do enough so that people end up supporting Proposition 65. Proposition 67 is a referendum on Senate Bill 270. Senate bill 270 was the bill that would ban plastic bags. A yes vote keeps the ban. A no vote would overturn the ban. Plastic bags are probably a big driver in climate change, if you believe in that, or just takes up unnecessary space and is hard to get rid of without feeling bad. Also plastic bags are really difficult to carry. Reusable bags make it easier to carry groceries, especially if you live in an apartment. I speak from experience. I can make one trip up the three flights of stairs to move my groceries if I use resusable bags instead of plastic bags. This is very important when I have to take my 2 year old daughter up with me, as well. I’m interested in watching the plastic bag ban to see if it gets upheld or overturned. I’m much more interested in this rather than the marijuana legalization bill.

2016 elections: Wyoming

Presidential elections:

Mitt Romney received 68.6% of the Presidential vote in 2012. This was a fairly similar percentage to the 2008 election where John McCain was able to win 64.8% of the vote. The biggest question for the 2016 presidential election is how much of the vote Gary Johnson will receive in November. In the 2012 election, Johnson received 2.14% of the vote in Wyoming. This was the 4th highest state for percentage of the vote. It helps that Wyoming doesn’t have very many votes to begin with. 5,326 votes in 2012 were able to get 2% of the vote in 2012. While the primaries are not predictive of how the election will happen in the general election, Trump struggled noticeably with Western states. I think it’s possible that Trump’s abrasive nature and his take on conservative policies do not play well with Western states. I think it’s possible that Johnson can get up to 4% of the vote in Wyoming. That would double his vote share in 2012 but I do think that this is possible. I think that Johnson will do fairly well for a third party in Western states, especially with states that have a higher vote share for third parties.

Statewide elections:

Since Wyoming has such a small population, they only have one Representative in the House of Representatives. The Congressional election is a statewide election. Liz Cheney is back after losing the 2014 Republican Senate primary in Wyoming. She won the 2016 Republican primary for the Congressional seat. That was essentially the election to determine who would be the next Representative from the state of Wyoming. She won 35,043 votes in the Republican primary. There were 18,823 votes cast in the Democratic primary. During the 2014 primary run, she was criticized for opposing same-sex marriage because her sister was a part of a same-sex marriage. She was also criticized of being a carpetbagger. At any rate, she is going to win the Congressional election in November against Democrat Ryan Greene.

Ballot measure:

There is one ballot measure found on the Wyoming ballot this year. It is known as Constitutional Amendment A. Ballotpedia has the text of the measure:

Currently, the Wyoming Constitution allows the legislature to authorize the investment of public employee retirement systems funds and permanent state funds in equities, such as stock or shares in private or public companies. Permanent funds of the state include funds designated as permanent funds by the Constitution. The Wyoming Constitution does not allow the state to invest any other funds in equities.

The adoption of this amendment would allow the legislature, by two-thirds vote of the members of both houses, to authorize the investment of additional specified state funds in equities.

State treasurer stated that the state’s permanent funds have done three times better invested in equities than other investments. This would allow the state to get a better return on investment for the state funds and could help solve upcoming budgetary crises. The ballot measure will likely pass fairly easily. I do not see any obstacles to it, at this point.

State senate:

District 8:

Affie Ellis (R)
Floyd Esquibel (D)

This is the only competitive district in the Wyoming State Senate election that I can find. Esquibel won the 2012 general election by less than 300 votes. There were 337 under votes in this Senate district election. Affie ellis is a small business owner who is trying to unseat Esquibel. I think that it will be another close election but I do believe that Esquibel will emerge victorious.

State House of Representatives:

Wyoming House of Representatives District 8:

Bob Nicholas (R)
Linda Burt (D)

Nicholas won the general election in 2012 by less than 400 votes. Burt is the former director of the ACLU in Wyoming and decided to get involved in the state legislature. She does not have a campaign website currently up. This district was also close in 2010 where Nicholas got re-elected with about 300 votes. With a strong enough candidate, Nicholas could be defeated. Right now, I think that Nicholas gets re-elected by less than 300 votes.

Wyoming House of Representatives District 11

Jared Olsen (R)
Mary Throne (D)

Throne won re-election in 2014 by 230 votes. There were about 1,000 less votes in 2014 in this district compared to 2014. Olsen was a delegate to the Republican National Convention and is challenging Throne. I think the presidential election will help Throne get more of a margin of victory as she gets re-elected.

Wyoming House of Representatives District 12:

Lars Lone (R)
Lee Filer (D)

Lars Lone was appointed to this seat after Harlan Edmonds resigned from the seat on August 15, 2016. Edmonds defeated the incumbent Lee Filer in 2014 by 91 votes. There was 1,769 votes cast for this seat in 2014. Just 1,769. Filer held this seat from 2013 to 2015. He is a fairly strong candidate to try to defeat Lars Lone. I think that the Presidential election will help Filer be able to retake his seat. I think it’s a fairly close election and I think Filer retakes the seat.

Wyoming House of Representatives District 15:

Donald Burkhart (R)
DeBari Martinez (D)

Burkhart was originally elected to this district in 2010 by 11 votes. He won the rematch in 2012 by less than 200 votes. He ran unopposed in 2014. He is opposed by DeBari Martinez. It doesn’t seem to be much of an online presence for Martinez. If he was a stronger candidate, I would think that this could be a real challenge to Burkhart. But I think Burkhart is able to win re-election.

Wyoming House of Representatives District 33

Jim Allen (R)
Sergio Maldonado (D)

Maldonado is a candidate who ran against State Senator Cale Case from District 25. He lost that election by just over 1000 votes. Allen was elected in 2014 after defeating Andrea Clifford in 2014 by 130 votes. He had previously been defeated by W. Patrick Goggles in 2012 by 126 votes. The fact that this is a presidential election should help Maldonado in his quest to upset Allen. I think that Allen holds onto this seat but I could see it flipping. This is definitely one worth watching.

Wyoming House of Representatives District 36:

Gerald Gay (R)
Debbie Bovee (D)

Gay was re-elected in 2014 by 168 votes over the Democratic challenger Eric Nelson. Gay ran into some trouble after he questioned the dependability of women workers and “suggested women were at least partially responsible for Wyoming’s gender-wage gap, one of the worst in the nation.”

The biggest challenge for Bovee, outside of her party, is that she is running as a write-in. Gay should be re-elected. If they had a candidate on the ballot with the party next to their name instead of a write-in, I’d have more faith that Gay could be defeated.

Wyoming House of Representatives District 45:

Tom Schmit (R)
Charles Pelkey (D)

Pelkey won election ion 2014 with 1,115 votes leading the Republican opponent Charles Young by 126 votes. 2014 was a good year for Republicans all over the country so I think that this election will not be as close as it was in 2014. Pelkey should be able to win re-election fairly easily. I’m going out on a limb and think that Pelkey will more than double his margin in 2016.

Wyoming House of Representatives District 46:

Bill Haley (R)
Ken Chestek (D)

Republican Glenn Moniz is not running for re-election in 2016. He won re-election in 2014 with 1,826 votes compared to Democratic candidate Mike Selmer’s 1,579 votes. Neither of the candidates seem to be well known. Chestek is a law professor running for the open seat. If we think that 2014 is the main reason Moniz was able to get re-elected, then we should feel pretty confident that the seat could flip to a Democratic held seat. But I’m not so confident. Moniz did better in 2012 than 2014. I think that Haley is able to win this election fairly comfortably.

Wyoming House of Representatives District 48:

Mark Baker (R)
Jackie Freeze (D)

Baker upset the Democratic incumbent Joseph Barbuto in 2012 by 110 votes. Barbuto challenged Baker in 2014 and failed again. This time he lost by 27 votes. It’s very interesting that Baker was able to win in a Presidential election year in 2012. This doesn’t seem to bode well for Jackie Freeze. I think Baker is able to hold onto his seat but I think it will be pretty close.

2016 election predictions: Alabama

Statewide:

U.S. Senate:

Richard Shelby (R): Incumbent Senator of Alabama. Govtrack does an analysis of members of Congress based on the bills that they sponsor and co-sponsor among ideological grounds and leadership scores. When you look up Shelby, there are two other Senators who score nearly identical with them. Shelley Moore Capito and Joni Ernst are the most similar Senators by that score. Govtrack provides some other statistics: in this Congress, Shelby introduced 0 bills that became laws. He cosponsored 49 total bills in this Congress. 14% of those bills were introduced by someone other than a Republican.

He introduced 6 bills in this Congress The bill with the most co-sponsors was S. 1867 International Megan’s Law to Prevent Child Exploitation Through Advanced Notification of Traveling Sex Offenders. The bill would provide notice of travel by registered sex offenders outside the US and when sex offenders would travel to the US.

Shelby is a pro-life politician who opposes same-sex marriage. He voted against debating the Gang of Eight immigration bill calling it the “mother of all amnesties.” He supports a balanced budget Constitutional Amendment and has opposed raising the debt ceiling. He supports a flat tax system. More on Richard Shelby’s support or opposition to issues can be found here.

Shelby has $9.8 million cash on hand for his Senate run.

Ron Crumpton (D): Crumpton is running for Senate on the Democratic ticket. He won his primary with 56% of the vote. Hillary Clinton won the Democratic primary in Alabama with nearly 78% of the vote. Crumpton announced a number of policy issues on his website that he is running on.

He is trying to run a more populist campaign for the Senate seat. He is supporting a minimum wage increase to $12/hour with an increase to $15/hour over the next three years. He ants to reschedule marijuana and end federal crimes on marijuana, mandatory minimum sentences, and private prisons. Despite running in Alabama one of the worst states for supporting immigration reform, he does support immigration reform.

Despite running as a Democrat on a number of issues, he is trying to thread the needle with gun rights and does not support gun control bills. This can mostly be attributed to the fact that he’s running in Alabama.

The rest of his issues can be found on his website.

Prediction: Alabama is a very conservative state and Shelby has a tremendous cash advantage over Crumpton. This election will not be close.

The 2012 Presidential election saw Mitt Romney get 60.55% of the vote and Barack Obama got 38.36% of the vote. I believe the margin will be similar in this election which would give Shelby’s

Amendment 1: Ballotpedia has the title of the Amendment:

Proposing an amendment to the Constitution of Alabama of 1901, to establish procedures to ensure that no more than three of the members of the Auburn University Board of Trustees shall have terms that expire in the same calendar year and to add two additional at-large members to the board to enhance diversity on the board.

A “yes” vote would add two members to the Auburn University Board of Trustees and prevent that not more than three board member terms expire in any one calendar year.

There doesn’t seem to be much opposition to the proposed Amendment. As far as I can tell, at least. It doesn’t even seem to be that controversial. It should pass with very high margins.

Amendment 2: Ballotpedia has the following title for this ballot measure:

Proposing an amendment to the Constitution of Alabama of 1901, to prohibit any monies from the State Parks Fund, the Parks Revolving Fund, or any fund receiving revenues currently deposited in the State Parks Fund or the Parks Revolving Fund, and any monies currently designated pursuant to statute for the use of the state parks system from being transferred for another purpose other than the support, upkeep, and maintenance of the state parks system.

Notwithstanding, in the event that guest revenues to the State Parks Revolving Fund exceed the threshold of $50 million (as annually adjusted based on increases in the consumer price index) in a fiscal year, the sales and use and cigarette tax revenue distributed to benefit the State Parks System shall be reduced in the following fiscal year. The amount of the reduction shall correspond to the amount of guest revenue to the State Parks Revolving Fund exceeding the threshold. The amount of tax revenue not distributed to benefit the State Parks System shall be distributed to the General Fund.

Proposing an amendment to Amendment 617 of the Constitution of Alabama of 1901, to allow the Department of Conservation and Natural Resources the option to provide for the operation and management, by non-state entities, of hotels, golf courses, and restaurants at any applicable state parks in Alabama

In plain english, the amendment would prohibit the legislature from reallocating state park funds for other uses. Opposing the amendment would allow the legislature to reallocate funds for other uses. The Montgomery Advertiser in their editorial that $15 million has been transferred from the state parks system to the General Fund. Further, they note that the parks department does not get any General Fund dollars and raises most of its money from entrance fees and other fees.

The legislature transferred $3 million out of the service fees and maintenance budget pots that led to the closure of five parks last October. The Montgomery Advertiser argues taht without this amendment being passed the parks would continue to face budget crunches and ample opportunities for the legislature to cover up other budgetary shortfalls. They argue that the only way to restore the parks to budget stability would be to pass this amendment.

Transferring money from the parks department is passing a value judgment on what is important to the state and their legislators. While Alabama does have a budgetary crisis with the prison system and public education dollars, the parks department and state parks provide valuable economic revival to cities and towns that have parks. They also increase property value and quality of life.

There is not significant opposition to the amendment but the idea of covering up budget shortfalls may be popular with some. Explaining how much it costs to run state parks and maintain them may be difficult to explain but ultimately explaining that transferring money away from parks is going to be more difficult.

I suspect this passes with nearly 60% of the vote.

Amendment 3:

Ballotpedia’s title of the amendment:

Proposing an amendment to the Constitution of Alabama of 1901, to revise the procedure for adoption of local constitutional amendments to provide that a proposed constitutional amendment the Legislature determines without a dissenting vote applies to only one county or a political subdivision within one or more counties shall be adopted as a valid part of the constitution by a favorable vote of a majority of the qualified electors of the affected county or the political subdivision and county or counties in which the political subdivision is located, who vote on the amendment

The amendment, if passed, would change the way the Alabama Constitution is amended. Local constitutional amendments are voted on by the entire state of Alabama unless 3/5 of the legislature and a unanimous vote of the constitutional amendment commission determine that the amendment only applies to one county or jurisdiction.

If it was passed, it would eliminate the constitutional amendment commission and require a unanimous vote of both houses of the Alabama legislature.

I don’t see a lot of opposition to this bill. I assume that it will pass.

Amendment 4:

Proposing an amendment to the Constitution of Alabama of 1901, to authorize each county commission in the state to establish, subject to certain limitations, certain programs related to the administration of the affairs of the county

This amendment would grant more authority to carry out community, transportation, and emergency assistance programs. Project VoteSmart gives the following summary:

Authorizes a county commission to establish certain programs necessary for the administration of the affairs of the county, including, but not limited to, the following programs (Sec. 1):

Programs relating to county personnel, including, but not limited to, employee benefits and employee incentive programs;

Programs relating to the community, including, but not limited to, programs to provide for clean roadways and to protect individuals from dangerous animals;

Programs relating to local transportation, including, but not limited to, public transportation programs and programs to encourage road safety;

Programs relating to county offices; and

Programs relating to emergency assistance, including, but not limited to, ambulance service programs and programs to improve emergency management services.

Prohibits a county commission from establishing, assessing, or increasing a tax or fee (Sec. 1).

Prohibits a county commission from establishing a program that infringes on private property rights (Sec. 1).

This was opposed by 17 members of the Alabama House of Representatives, 11 Democrats and 6 Republicans.

I do think that there should be some specifities about what infringing on private property rights includes. But I am not sure what specifically is in the bill that should be opposed. I have not been able to locate the reasoning behind the opposing votes. The Amendment should pass. This section will be updated as I find more opposing statements on it.

Amendment 5: Ballotpedia

Proposing an amendment to the Constitution of Alabama of 1901, to repeal and restate the provisions of Article III of the Constitution of Alabama of 1901 relating to separation of powers to modernize the language without making any substantive change, effective January 1, 2017

This amendment simply modernizes the language found in the constitution of Alabama. It does not seem to make any substantial changes to the Constitution. Because it does not make any substantial changes, the Amendment should pass.

Amendment 6: Ballotpedia – “Proposing an amendment to the Constitution of Alabama of 1901, to become operative January 1, 2017, to repeal and replace Article VII, Impeachments.”

The amendment would change the language to specify that to impeach a state official, a two-thirds supermajority of the state senators present. Apparently, the current Alabama constitution does not list whether a majority of all state senators or if majority approval of the senators present would be sufficient. Other changes with this amendment would include removing the superintendent of education from the list of offices subject to impeachment, added members of the State Board of Education, and removed other irrelevant language. Finally, it engages in political correctness by removing gender-specific language (I’m just kidding about the political correctness part).

The reason for the amendment is because of the potential impeachment of Governor Robert Bentley. Governor Bentley will probably have articles of impeachment brought against him because of sexual harassment. There, apparently, was some debate over how the articles of impeachment would occur if we did not know how they could be impeached.

Clearly, it has not been an issue in the past. There was only one attempted impeachment in the last 100 years. I think it’s important to clarify language in the state constitutions so that there is not any ambiguity. Since there is not any shifting of powers or exclusion of powers but just clarification, I expect this amendment to pass.

Amendment 7:

Relating to Etowah County, proposing an amendment to the Constitution of Alabama of 1901, to provide that the employees of the Office of Sheriff of Etowah County, except for the chief deputy, chief of detention, chief of administration, chief of investigation, director of communications, and food service manager, shall be under the authority of the Personnel Board of the Office of the Sheriff of Etowah County

The reason for this measure is so that Etowah county sheriff’s deputies to receive raises without giving similar raises to all county employees. This seems to be one of those places where an amendment could only be applied to one county or locality instead of having the whole state vote on it. I think it will probably pass.

Amendment 8:

Proposing an amendment to the Constitution of Alabama of 1901, to declare that it is the public policy of Alabama that the right of persons to work may not be denied or abridged on account of membership or nonmembership in a labor union or labor organization; to prohibit an agreement to deny the right to work, or place conditions on prospective employment, on account of membership or nonmembership in a labor union or labor organization; to prohibit an employer from requiring its employees to abstain from union membership as a condition of employment; and to provide that an employer may not require a person, as a condition of employment or continuation of employment, to pay dues, fees, or other charges of any kind to any labor union or labor organization

Adding right-to-work text to the Alabama constitution will probably make it harder to change in the future. Alabama is already, more or less, a right-to-work state so even without this amendment, Alabama would continue down the path of being a “right to work state.” Maybe I’ll write something more in the future but I do not agree with “right-to-work” policies, in the abstract. I think that it’s likely to pass, regardless. It will probably get around 60% of the vote. This will make it more difficult in the future if Alabama wants to change away from being a “right to work” state.

Amendment 9:

A local constitutional amendment to the to the Constitution of Alabama of 1901; to provide that a person who is not over the age of 75 at the time of qualifying for election or at the time of his appointment may be elected or appointed to the office of Judge of Probate of Pickens County

This amendment would prevent anyone over the age of 75 be elected or appointed to the office of Judge of Probate of Pickens County. This seems like a way just to age people out of the judiciary. This is not something that I agree with overall. Typically, these type of age requirements and the like is to prevent popular people from maintaining their posts.

It will likely pass, I mean, 75 seems old.

Amendment 10:

An amendment to Constitution of Alabama of 1901, to provide that any territory located in Calhoun County would be subject only to the police jurisdiction and planning jurisdiction of a municipality located wholly or partially in the county

This will probably pass. The reasoning is that it would redefine jurisdictions to prevent it from going across county lines.

Amendment 11:

Proposing an amendment to the Constitution of Alabama of 1901, as amended, to permit cities and counties, notwithstanding any existing constitutional restrictions, to utilize tax increment district revenues collected within a Major 21st Century Manufacturing Zone and other moneys to incentivize the establishment and improve various types of manufacturing facilities located or to be located in such Zone, and to validate and confirm the Major 21st Century Manufacturing Zone Act, Act No. 2013-51.

This doesn’t seem like a bad idea. This creates a new way to fund infrastructure projects in underdeveloped areas. The idea is that the tax increment financing would fund the debts of a project because the infrastructure will create more taxable property and increase value of the surrounding real estate. The increased revenue finances the debt.

Amendment 12:

Relating to municipalities in Baldwin County; proposing an amendment to the Constitution of Alabama of 1901, to authorize the Legislature by general or local law to provide for any municipalities in the county to incorporate a toll road and bridge authority as a public corporation in the municipality for the construction and operation of toll roads and bridges in the municipality and to authorize the authority to issue revenue bonds to finance the projects.

This creates a governing body to establish tolls to fund major road projects. They will be able to issue bonds to help fund these projects.

I actually think this will be pretty close but will be passed about 55%.

Amendment 13:

Proposing an amendment to the Constitution of Alabama of 1901, as amended, to repeal any existing age restriction on the appointment, election, or service of an appointed or elected official, with the exception of persons elected or appointed to a judicial office, currently imposed by a provision of the Constitution or other law; and to prohibit the Legislature from enacting any law imposing a maximum age limitation on the appointment, election, or service of an appointed or elected official.

I agree with this concept. I don’t think there should be maximum age restrictions because I think that they are largely passed to prevent popular politicians from retaining power. In general, I believe that democracy is the best way to prevent those you do not want in power from gaining power. This prevents age restrictions in the future. I wish it would go further and get rid of age restrictions for judicial appointments.

It should pass.

Amendment 14:

To propose an amendment to Amendment 448 to the Constitution of Alabama of 1901, now appearing as Section 71.01 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, to ratify, approve, validate, and confirm the application of any budget isolation resolution authorizing the consideration of a bill proposing a local law adopted by the Legislature before November 8, 2016, that conformed to the rules of either body of the Legislature at the time it was adopted

I’ll let Ballotpedia explain this:

Currently, bills passed in the Alabama Legislature prior to budget approval require a “budget isolation resolution” (BIR). These BIRs must be passed by a three-fifths supermajority of the quorum present. More recently, the Alabama House had been passing BIRs with only three-fifths of those members who were both present and voting, requiring the support of fewer legislators.

Amendment 14 guarantees the legitimacy of the “present and voting” interpretation of BIR voting procedure and ensures that over 600 local laws that were passed using this procedure would be protected. Otherwise, courts could strike down these local laws. For example, a Jefferson County sales tax law was struck down after it was revealed that it was passed using this BIR voting procedure.

This clarifies the language out there with regards to the Budget Isolation Resolution. This is a little “inside baseball”, but this should pass. I think a number of people will be confused by this.

Ugh. That is a lot of ballot amendments.

Statewide Presidential election: There will not be any polls out there for Alabama because it is a safe Republican state. In 2012, Mitt Romney won the stae with 60.55% of the vote compared to Barack Obama’s 38.36%. The total votes for Romney were 1,255,925 votes compared to 795,696 for Obama. There were a total of 2,074,338 ballots cast.

I’m anticipating a similar amount of ballots cast in 2016 despite the talk that is going out there currently. I’m projecting Trump getting 58% of the vote. I have Clinton at 40% right now.

We’re assuming that the third party vote share will be around 2%.

Federal elections:

None of the Congressional elections are going to be very close. The Congressional Districts are drawn to be noncompetitive. Romney won 6 of the 7 Congressional districts and got over 60% in those districts. The last district was won by Obama with 72.4% of the vote.

Alabama Congressional District 2:

Martha Roby (R)

Nathan Mathis (D)

Predicted winner: Martha Roby

Alabama Congressional District 3:

Mike Rogers (R)

Jesse Smith (D)

Predicted winner: Mike Rogers

Alabama Congressional District 5:

Mo Brooks (R)

Will Boyd (D)

Predicted winner: Mo Brooks

No fly, no buy: still a terrible policy

After the Orlando nightclub shooting at Pulse, there was an increased call for gun control or gun reform laws. The most prevalent call was the idea of “no fly, no buy.” This policy would entail that people who are on the “no fly” list would not be allowed to buy guns. Quinnipiac University found that 86% of registered voters back this type of proposal when they polled this issue at the end of June. A Suffolk University poll taken around the same time found that 76% of likely voters supported such a measure. The idea has quite a bit of popularity. It has a “bumper sticker politics” feel to it where it sounds really good on bumper stickers. What’s more is that it is very easy to say to someone on the no fly list should not be able to buy guns. It appeals to your gut. It’s designed to attack those who oppose it. But it’s terrible policy. The amendment offered by Dianne Feinstein that would prevent those on the “no fly” list from purchasing guns failed as did Senator Susan Collins’s compromise amendment. The amendments would include those within the Terrorist Identities Datamart Environment which includes the Terrorist Screening Database of which the no fly list is a subset. I don’t think it will be brought up again, anytime soon in terms of actual legislation, but I do think people will continue to have discussions revolving around this issue.

Due process problems

There are some Constitutional arguments that we can have over whether or not gun control laws violate the 2nd Amendment. I, for one, believe that the Constitution does allow for regulations of firearms but for those that disagree with me, I certainly understand. But I do believe that regulations of firearms have to follow the other Constitutional amendments that we have and the principles found within the Constitution. We do have principles of due process, equal protection, privacy, and unlawful searches that are equally entrenched and protected in our Constitution. We must follow through with these principles. So, you must provide for reasoning as to how or why someone is prevented from purchasing firearms and/or a remedy for them if they are prevented from doing so by either a mistake or inaccurate information.

In 2003, in the immediate aftermath of the 9/11 terrorist attacks, President George W. Bush expanded the screening of suspected terrorists. The FBI Terrorist Screening Center (TSC) was created. The TSC houses the consolidated Terrorist Watchlist. This watchlist is a “single database of identifying information about those known or reasonably suspected of being involved in terrorist activity.” We’ll get back to the “reasonably suspected” portion of their statement in a bit. This database is what helps create screening agencies to prevent people from obtaining visas, enter the the country via aircraft or seacraft, or travel via air or sea around the country. The American Civil Liberties Union (ACLU) has been a critic of this agency and process since the onset. They noted in their report that the TSC also contains “the selectee list) which identifies “individuals who are subjected to additional questioning, inspection, and screening before being allowed to board flights to, from, or over U.S. territory.” The ACLU writes that 875,000 individuals as of December 2012 are on the consolidated terrorist watchlist. The Associated Press reported in February of 2012 that there were about 21,000 individuals on the “no fly list” alone. The ACLU has since reported that 47,000 people are on the no fly list as of 2013.

The authors for the ACLU write about what it would take to be placed in the Terrorist Screening Database. The TSC defines a reasonably suspected terrorist is an “individual who is reasonably suspected to be, or have been, engaged in conduct constituting, in preparation for, in aid of, or related to terrorism and terrorist activities based on articulable and reasonable suspicion.” As the authors of the ACLU write, this is “broad enough to include First Amendment-protected speech and association…mere proximity to a suspected terrorist should not make one a suspected terrorist, but that is what the standard allows.” The Government Accountability Office (GAO) acknowledged that “agencies utilizing watch list records recognize various definitions of [terrorism].” That’s just the standard to be included on the database. The no fly list and selectee list, though, are subsets of that database. Government representatives acknowledge that there are “additional derogatory requirements.” These requirements have not been disclosed.

As the ACLU has found in their efforts of representing clients that most of the people do not find out that they are on the no-fly list until they try to fly and are barred from trying to fly. Previously, the government had not confirmed or denied if people were actually on the no-fly list. This has since been changed.

What’s more startling is that there are a number of mistakes with the terrorist watchlists and what is not surprising is that people are placed on the watchlists based on discriminatory factors. The ACLU found that 280,000 on the master watchlist who have “no recognized terrorist group affiliation.” The city of Dearborn, Michigan which has one of the largest Arab American communities in the country has more people on the terrorist watchlists than any other city in the country except New York City. There are less than 100,000 people in Dearborn, Michigan.

People are erroneously placed on the No fly list and the list is not updated. The ACLU writes in their report:

Rahinah Ibrahim, a Stanford PhD student and Malaysian citizen, was prevented from boarding a flight in San Francisco, handcuffed (despite being wheelchair-bound at the time), and held in a detention cell for hours in January 2005 based on what turned out to be a bureaucratic error by the FBI that placed her on the No Fly List. The government fought to avoid correcting the error for years, even invoking the state secrets privilege in an unsuccessful effort to prevent judicial scrutiny. She was permitted to leave the country, but to this day, she has been barred from returning, even though the government admits that she should not have been placed on the No Fly List.

The ACLU reports the Department of Justice Inspector General wrote in 2008 that watchlist records are not appropriately generated, updated, or removed as required by FBI policy. In 2009, the same Inspector General found that many people were not removed from the watchlist and tens of thousands of names were placed on the list without a factual basis. Some of the other more notable names that have been included on the watchlists include Nelson Mandela, Ted Kennedy, and John Lewis.

Those on the watchlists have very little opportunities to be able to get their names off of the list as they are not offered a chance to make their case in front of a neutral arbitrator. In Feinstein’s amendment would require the attorney general to draft measures to make sure that national security is not compromised which would prevent an individual from finding out why they were denied the ability to buy a gun. Unless the government provides reasons as to why an individual is on the watchlist that is preventing them from purchasing a gun and allows for a real ability to correct the issue, it fails basic due process standards.

A More Perfect Union

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