Nevada’s Loyalty Pledge Law Regarding the Electoral College Violates the Constitution

“If one of them refuses to do it, they will be dismissed and we’ll bring in an alternate…I know there’s been talk about that in other states but that will not happen here.”

-Nevada Secretary of State elections deputy Wayne Thorley

What if I was to tell you the electoral college..isn’t a college at all?1)Sorry

Worse, this ragtag group of federal officials still don’t even have office space, after all this time.

Finally, though, the electoral college has made its way to the national consciousness2)and here i thought my “Opaque election rules and procedures” club would get off to a much faster start. I’ll talk to the marketing guy.., so I thought it’d be fun to talk about what the electoral college is, what they will be doing next Monday, and most importantly, examine if laws that command a federal electoral vote a particular way are constitutional.

Luckily, our elected officials gave us some great material to work with.

“Haven’t I Voted Twice This Year Already?”

Well, if you start in February, a few. One more, I promise. And this time you don’t even need to participate. Your job as engage citizen voter is completed for this year.

In November, you didn’t vote for president, but for electors that will vote for president this coming Monday, 19 December. The following six people were elected from Nevada:

  • Dayananda Prabhu Rachakonda (The only one from Las Vegas. Will the Tyranny of the North know no bounds??)
  • Larry Jackson
  • Joetta Brown
  • Paul Catha II
  • Greg Gardella
  • Teresa Benitez-Thompson

On Monday, these 6 federal electors will convene in Carson City because the electors do not meet in one place, but at all the state capitols. This has been in effect since 1948.

In all previous elections the electors voted the same way as the people who elected them, and given that Nevada voted for Hillary Clinton, it is fair to assume that all six will vote for Hillary too.

But do they have to?

For the first time in my lifetime (likely yours too), there is serious talk of if the electoral college voters may express a different preference than that of the voters. (Vote for someone else)

Today I am not asking should the electors vote their faith, only if they can.

Now, I try not to be too tough in this forum3)This does function as marketing material as well, as I’m sure you are aware, but the Secretary of State elections deputy Wayne Thorley put out quite the statement in the press regarding this subject:

Secretary of State elections deputy Wayne Thorley said both major parties submitted the names of their six electors, one for each Nevada member of the House and U.S. Senate, well before the election.

He said since Hillary Clinton won the popular vote in Nevada, it will be the Democratic list who meets and votes that date. Rather than all 535 Electoral College electors going to Washington D.C. for that vote, they meet in each state capitol so that vote will take place in the capitol as well.

He said under Nevada law, they’re required to vote for Clinton and Tim Kaine.

“If one of them refuses to do it, they will be dismissed and we’ll bring in an alternate,” he said. “I know there’s been talk about that in other states but that will not happen here.”

Wait wut?

“We’ll bring in an alternative” is quite the loaded statement.

Some potential questions consider:

Who is the “we” he is referring to? Does the Elections office have its own enforcement arm? Since when?

What do you mean by “bring”? Is that a physical threat against a federal official?

Who is the alternative? Which alternative is selected first? What behavior needs to be exhibited to trigger this threat?

(I can keep going.)

Most importantly, the assertion that Nevada’s electors have to vote for Clinton/Kaine is unconstitutional and false. (And disappointing as a Nevada citizen to see an elected official make).

Let’s not get mad at Wayne though, he’s not the only elected official in Nevada that does not understand this. Our legislature actually put one of these silly loyalty pledge4)What year is it? laws on our books in 2013:

NRS 298.065  Meeting of presidential electors; nominees whose candidates receive highest number of votes become presidential electors; procedures for filling vacancies; pledge of presidential electors selected at meeting.

      1.  The Secretary of State shall preside at the meeting of presidential electors held pursuant to 3 U.S.C. § 7. Except as otherwise provided in this section and NRS 298.075, the nominees for presidential elector whose candidates for President and Vice President receive the highest number of votes in this State at the general election are the presidential electors.

      2.  If a nominee for presidential elector is not present to vote at the meeting, the position of presidential elector to be filled by that nominee for presidential elector is vacant and the vacancy must be filled as follows:

      (a) If the alternate is present at the meeting, the Secretary of State shall appoint the alternate to the position of presidential elector;

      (b) If the alternate is not present at the meeting, the Secretary of State shall appoint to the position of presidential elector a person chosen by lot from among the alternates present at the meeting, if any;

      (c) If no alternates are present at the meeting, the Secretary of State shall appoint to the position of presidential elector a person who is:

             (1) A qualified elector;

             (2) Present at the meeting; and

             (3) Chosen through nomination by and plurality vote of presidential electors who are present at the meeting; and

      (d) If votes cast pursuant to subparagraph (3) of paragraph (c) result in a tie, the Secretary of State shall appoint to the position of presidential elector a person who is chosen by lot from those persons who tied for the most votes.

      3.  If all the positions of presidential elector are vacant and no alternates are present at the meeting, the Secretary of State shall appoint from the qualified electors one person to the position of presidential elector, and the remaining positions must be filled pursuant to paragraphs (c) and (d) of subsection 2.

      4.  The nomination by and vote of a single presidential elector is sufficient to choose a person to be appointed to the position of presidential elector pursuant to subparagraph (3) of paragraph (c) of subsection 2.

      5.  Except as otherwise provided in subsection 6, a person appointed to the position of presidential elector pursuant to this section may not serve in that position unless the person signs a pledge in substantially the following form:

 

I agree to serve as a presidential elector and to vote only for the nominees for President and Vice President of the party or the independent candidates who received the highest number of votes in this State at the general election.

 

      6.  If a person appointed to the position of presidential elector pursuant to this section is physically unable to sign the pledge, the pledge may be signed by proxy.

      7.  If a person appointed to a position of presidential elector pursuant to this section does not sign the pledge described in subsection 5, that position of presidential elector is vacant and must be filled pursuant to this section.

      (Added to NRS by 2013, 1231)

      NRS 298.075  Voting for President and Vice President; procedures when presidential elector acts contrary to pledge; recording of votes.

      1.  The Secretary of State shall provide to each presidential elector a ballot for the office of President and a ballot for the office of Vice President. The presidential elector shall mark the applicable ballot provided by the Secretary of State for the person who received the highest number of votes at the general election for the office of President and the person who received the highest number of votes at the general election for the office of Vice President. The presidential elector shall sign and legibly print his or her name on the ballots and present the ballots to the Secretary of State.

      2.  After all presidential electors have presented their ballots to the Secretary of State, the Secretary of State shall examine each ballot. If a presidential elector:

      (a) Presents both ballots and the ballots are marked with votes for the person who received the highest number of votes at the general election for the office of President and the person who received the highest number of votes at the general election for the office of Vice President, respectively, the Secretary of State shall accept both ballots.

      (b) Does not present both ballots, presents an unmarked ballot or presents a ballot marked with a vote that does not conform with the provisions of subsection 1:

             (1) The Secretary of State shall refuse to accept either ballot of the presidential elector; and

             (2) The Secretary of State shall deem the presidential elector’s position vacant. The vacancy must be filled pursuant to the provisions of NRS 298.065. The person appointed to fill the vacancy in the position of presidential elector, after signing the pledge described in NRS 298.065, shall mark both ballots and present both ballots to the Secretary of State pursuant to this section.

      3.  Only the votes accepted by the Secretary of State pursuant to this section may be recorded on the lists of votes made by the presidential electors pursuant to 3 U.S.C. § 9.

      (Added to NRS by 2013, 1232)

Well, at least I admire the chutzpah.

I thought there was consensus among legal professionals of how federalism works, but apparently not.

You have to be wondering before we get into the legal weeds (I know I was), where did this come from/who’s idea is this?

(This is the part that doesn’t make the legislature look very good).

..It was copied and pasted from a lobbyist organization called Uniform Laws.5)If you unfamiliar with these ALEC-type organizations, I will explain briefly. Very rich folks paid to found the fancy organization with governmental sounding names to write drafts of laws they would like see enacted in the states. Jane Mayer’s book on the topic is excellent

The people who do this for a living (shadow-write your state laws) don’t think the public is offended by this idea that people would sit in Washington D.C. and write your Nevada laws.6)This has always shocked me. Not only do they keep a public-running tally of the states in which they’ve succeeded, they even provide a handy map as a visual aid.

Map of the 4 States

Our legislators didn’t even have the shame to not openly admit that this law was suggested by a lobbyist; the notes from the 2013 session say explicitly they are adopting this uniform law.7)Please have more shame going forward

Justification for laws often takes place in the Legislative Digest (for example I am writing about the new moped law, and the digest says taxing/regulating mopeds is the the safety of the riders. No, no, not today..). Here is the Digest for the loyalty pledge law. It provides no justification at all. You would think for as something as important as elections..

So why did Nevada, after voting in one manner since 1948, need to update the voting laws in 2013? The best rhetoric you can find is this for-profit argument (as in, he was told was conclusion to have and then justified it accordingly) from this Northwestern Professor8)What’s going on at Northwestern? Yikes.

I’m not impressed with what he wrote, especially given the incentive structure; I’ll allow you to evaluate it on your own.

My Opinion Regarding the Electoral College is Fairly Common; I Wish I Could Justify Why the Nevada Law Got Put Into Effect

As the last sentence of our loyalty pledge law makes clear (“Only the votes accepted by the Secretary of State pursuant to this section may be recorded on the lists of votes made by the presidential electors pursuant to 3 U.S.C. § 9”.), our legislators are at least aware that there is federal law governing the electoral college.

My favorite part of that sentence of our statute, is that if they would check back just one more section they would see that there already is federal law governing the electoral college 3 U.S.C. § 8:

“The electors shall vote for President and Vice President, respectively, in the manner directed by the Constitution.”

You know what is literally not “the Constitution”? That’s right, the Nevada legislature. Or any other state legislature for that matter.9)Please find me the constitutional provision that allows the states to invalidate electoral college votes.

It’s from this same chapter in the federal code that we decide when the electoral college meets:

3 U.S. Code § 7 “The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct.”

So what we have here is called a conflict of laws because the state of Nevada claims they can disqualify a elector based on her vote, and the federal law says “the constitution” (and nothing else) governs the electors.

Who wins? The federal law. By the Supremacy Clause of the U.S. Constitution:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The laws of the United States are supreme to state laws. We’re talking  McCulloch v. Maryland type of certainty here.10)As in, there is consensus

We saw this not too long ago with the GMO labeling laws and Vermont. We discussed how, in response to Vermont’s strict GMO-label law, the industry moved to get a federal law passed covering the same topic, making the federal law supreme to that hippie-Vermont GMO bill.11)Oh Vermont, never change..You better believe they carved exemptions for their home industries cheese/syrup

So am I saying that the entire loyalty pledge law in Nevada is unconstitutional? No. The federal congress granted authority to the states to address electoral vacancies:

Each State may, by law, provide for the filling of any vacancies which may occur in its college of electors when such college meets to give its electoral vote. 3 U.S. Code § 4

So if there is a vacancy on Monday (one of the electors is absent), NRS 298 instructs us how the Secretary of State will fill the spot. The law they crafted, although weird seems fine with respect to vacancies.

So the power to resolve vacancies has been delegated to the states by this 1948 federal statute covering the electoral college. Why did it take until 2013 for Nevada electeds to take this option? What changed?

The answer is so incendiary I can’t publish it in marketing material like this. There’s a reason you can’t find a written justification for this law anywhere.

What I will say though, is if this was about “the will of the people” not being met, isn’t the obvious solution direct election of the president? (I would support such a measure).

100 years ago we weren’t even directly electing our U.S. Senators; we’ve certainly made some progress.12)I’m listening President Obama; I swear. If the goal is to ensure that the people’s will is effectuated through the vote, the best means to do this is not through obscure, likely unconstitutional, statutes. It’s also highly inefficient.

Nevada’s Loyalty Pledge Law Isn’t Seen As Unconstitutional Just By Me

The (nonpartisan) Congressional Research Office exists to provide necessary background to our legislators before voting on complicated issues. From the limited material I’ve read, their work is excellent. I’ve never heard a cross word against them (Evan McMullin worked for them explaining foreign policy before he ran for president. Bright people like that work there. You will get to see the person who wrote the proceeding grafs momentarily.). In April (8 months ago) of this year, they published a clear explanation of what the electoral college is and how it got to this place for U.S. members of congress13)This is the office that your representatives rely on for data. It’s hard to be more trusted. The man is obviously more conservative14)when I use this word I don’t mean anything pejorative than me, yet we’ve reached the same conclusion:15)The law isn’t supposed to be political

Presidential electors in contemporary elections are expected, and, in many cases pledged, to vote for the candidates of the party that nominated them. While there is considerable evidence that the founders intended that they would be independent, weighing the merits of competing presidential candidates, the electors have been regarded as agents of the public will since the first decade under the Constitution. They are expected to vote for the candidates of the party that nominated them. “Faithless” electors provide an occasional exception to that accepted rule.

…Notwithstanding the tradition that electors are bound to vote for the candidates of the party that nominated them, individual electors have sometimes broken their commitment, voting for a different candidate or for candidates other than those to whom they were pledged; they are known as “faithless” or “unfaithful” electors. Although 24 states seek to prohibit faithless electors by a variety of methods, including pledges and the threat of fines or criminal action, most constitutional scholars believe that once electors have been chosen, they remain constitutionally free agents, able to vote for any candidate who meets the requirements for President and Vice President. Faithless electors have been few in number: since 1900, there have been eight, one each in the elections of 1948, 1956, 1960, 1968, 1972, 1976, 1988 and 2004, and one blank ballot cast in 2000. They have never influenced the outcome of a presidential election, however, but their “faithless” votes, or failure to vote, were all duly recorded, and none of these faithless electors was prosecuted for this action. (Emphasis added).

I would like to think that any person with a basic understanding of federalism would conclude the same, but sophism seems to be all the rage.

The National Archives points out that the Supreme Court has “not specifically ruled on the question of whether pledges and penalties for failure to vote as pledged may be enforced under the Constitution.”16)Source That’s a fair point. This is undecided law.

Do you really think a federal court is going to enforce a state law that commands a federal official how to vote? Really?

The Secretaries of State throughout the country produced this nice handout where you can see how popular this idea has gotten. Doesn’t make it anymore constitutional17)I think the word ends in -hameful.

Mess With the Electoral College at Your Own Risk

Now, if you were an elector and trouble-maker (We know that at least one of the electors is an ran Bernie’s operation in Reno, making this a possibility) you might have some potential fun come Monday.

Let’s say for example you do not like this loyalty pledge law and want it declared unconstitutional by a federal court. In law, there’s a rule called standing which determines what potential plaintiffs are sufficiently connected to a matter enough to sue. It’s used to stop too many people from suing when they should not.

It’s possible that the only people in Nevada that would have standing to challenge the loyalty pledge law would be one of these electors. And they may only have an opportunity to do so every 4 years.

Only if the elector voted as s/he intended, but then was removed by the Secretary of State (as they are threatening to do in NRS 298.), would said elector have standing and a cause of action to bring a claim.

The Secretary of State’s office needs to be prepared for this. Hopefully between now and then, they realize they should not enforce an unconstitutional law, and allow the electors to vote as they choose. (The Congressional Research Office says one of these laws have never been enforced..there must be reason.)

The New York Times recently used our Secretary of State as an example of an elected official using the office to lobby (They have Nevada Energy emails), and I can’t be the only person living here waiting for an explanation. All eyes will be directed their way early next week.

The Secretary of State’s work Monday is likely the most important they will likely ever do. Here’s to hoping they realize that.

If you would like to learn more about the electoral college (or check my work), I invite you to spend a few minutes with Mr. Neale (the Congressional Research Office employee I quoted at length).

If you are unsure if it is proper for an elector to evaluate the candidate for president, just watch the first two minutes.

Thanks for reading.

 

 

Footnotes   [ + ]

1. Sorry
2. and here i thought my “Opaque election rules and procedures” club would get off to a much faster start. I’ll talk to the marketing guy..
3. This does function as marketing material as well, as I’m sure you are aware
4. What year is it?
5. If you unfamiliar with these ALEC-type organizations, I will explain briefly. Very rich folks paid to found the fancy organization with governmental sounding names to write drafts of laws they would like see enacted in the states. Jane Mayer’s book on the topic is excellent
6. This has always shocked me
7. Please have more shame going forward
8. What’s going on at Northwestern? Yikes
9. Please find me the constitutional provision that allows the states to invalidate electoral college votes.
10. As in, there is consensus
11. Oh Vermont, never change..You better believe they carved exemptions for their home industries cheese/syrup
12. I’m listening President Obama; I swear.
13. This is the office that your representatives rely on for data. It’s hard to be more trusted.
14. when I use this word I don’t mean anything pejorative
15. The law isn’t supposed to be political
16. Source
17. I think the word ends in -hameful.
Nevada voting election vote

Election Day Special: Know Your Voting Rights

Need to find your polling place in Clark County? Just click here. Voting is open until 7 p.m. 

 

Happy Election Day! Good news! We have moved into the state-administered calendar of the election season. Why is this good? Because when the state administers an election (as opposed to a political party), you have rights as a Nevada citizen to ensure the election is administered fairly.

More good news! As I’m sure you have heard how new voter-ID laws across the country are disenfranchising people (who could forget Sen. Burr having to vote with a provisional ballot?). Well, we don’t have one! In fact, the next time someone brings that silly topic up, refer them to NRS1)which stands for Nevada Revised Statute 293.775 that states that anyone “who votes or attempts to vote knowing that he or she is not a qualified elector is guilty of a category D felony.”2)Cite

Yes, voter fraud is already a crime. Let’s move on talk to about stuff that’s really important…like bathrooms3)kidding!.

Know Your Election Rights by Statute

It’s one thing to know that it’s “the law” that you do not have to provide state-ID to vote (for example), but what fun is that?

It’s much more fun to vote knowing the precise statute that empowers you!

Let’s start with election day observation:

NRS 293.274  Members of general public allowed to observe conduct of voting at polling place; photographing or otherwise recording conduct of voting by members of general public prohibited.

      1.  The county clerk shall allow members of the general public to observe the conduct of voting at a polling place.

      2.  A member of the general public shall not photograph the conduct of voting at a polling place or record the conduct of voting on audiotape or any other means of sound or video reproduction.

      3.  For the purposes of this section, a member of the general public does not include any person who:

      (a) Gathers information for communication to the public;

      (b) Is employed or engaged by or has contracted with a newspaper, periodical, press association, or radio or television station; and

      (c) Is acting solely within his or her professional capacity.

      (Added to NRS by 1995, 2772; A 1999, 264) (emphasis added)

There was some confusion online if people are allowed to take pictures of their ballots and post them (I am not going to reproduce a potential crime here). There’s been a national rise in demand for folks to film themselves casting a ballot out of fear of voter fraud, but you do not need to worry about that here. In Nevada, you can see a print out of your voter preferences before you leave the booth. I can verify this firsthand.

My point being, you don’t need to film yourself voting. Also, it’s illegal.4)Yes, Jon’s right. Doesn’t excuse that tone of his though.

One last point regarding NRS 293.274 in reference to the general public being permitted to “observe.” That means you can stand near the poll location and watch people vote. “Observe” has a different meaning than “talk to,” “intimidate,” “question” or any other action that involves you interacting with voters.5)Small aside. In 2008 i worked for the “Election Protection” team in Las Vegas where we went to the polls to make sure voters weren’t being made uncomfortable. At the North Las Vegas polling place I visited, there was in fact a man there in a white button down shirt, bright red tie, with a steno pad, looking at each voter’s face and making a note on his pad. I just went and stood next to him..he left 10 minutes later. Guess he had all the notes he needed. Leave them voters be!

You Do Not Need State-Issued ID to Vote

NRS 293.277 and NRS 293.285 states what is required of you to vote:

NRS 293.277  Conditions for entitlement of person to vote; forms of identification to identify registered voter.

      1.  Except as otherwise provided in NRS 293.283 and 293.541, if a person’s name appears in the roster or if the person provides an affirmation pursuant to NRS 293.525, the person is entitled to vote and must sign his or her name in the roster when he or she applies to vote. The signature must be compared by an election board officer with the signature or a facsimile thereof on the person’s application to register to vote or one of the forms of identification listed in subsection 2.

      2.  Except as otherwise provided in NRS 293.2725, the forms of identification which may be used individually to identify a voter at the polling place are:

      (a) The card issued to the voter at the time he or she registered to vote;

      (b) A driver’s license;

      (c) An identification card issued by the Department of Motor Vehicles;

      (d) A military identification card; or

      (e) Any other form of identification issued by a governmental agency which contains the voter’s signature and physical description or picture.

      (Added to NRS by 1960, 252; A 1985, 559; 1991, 2219; 1993, 2181; 1995, 2263; 2001, 2595; 2003, 2176; 2015, 3151) (emphasis added)

NRS 293.285  Procedure for taking registered voter’s signature.

      1.  Except as otherwise provided in NRS 293.283, a registered voter applying to vote shall state his or her name to the election board officer in charge of the roster, and the officer shall immediately announce the name, instruct the voter to sign the roster and verify the signature of the voter in the manner set forth in NRS 293.277.

      2.  If the signature does not match, the voter must be identified by:

      (a) Answering questions from the election board officer covering the personal data which is reported on the application to register to vote;

      (b) Providing the election board officer, orally or in writing, with other personal data which verifies the identity of the voter; or

      (c) Providing the election board officer with proof of identification as described in NRS 293.277 other than the card issued to the voter at the time he or she registered to vote.

      3.  If the signature of the voter has changed in comparison to the signature on the application to register to vote, the voter must update his or her signature on a form prescribed by the Secretary of State.

      (Added to NRS by 1960, 253; A 1971, 442, 1486; 1987, 692; 2007, 2588; 2015, 3152)

If you are looking to remember one election statute, NRS 293.277 is the one you are looking for. As you can see above in the bolded section, if your name is on the voter rolls, with a signature and an affirmation6)legally binding statement, you get to vote.

I was going to add “no questions asked” but that could be literally untrue. Take a look at NRS 293.285. If your signature doesn’t match with the one on file, the election official present will likely ask you a few questions. This is okay!

The procedure for how the election officials ask and take your signature is specifically prescribed by statute. If the above procedure is not followed at your polling place, please inform that Clark County Election Department at (702) 466-8683.

Just in case, here is the language from the Clark County Election website regarding voter identification:

You will give your name to a Clerk at the precinct table. The Clerk will find your name in the Precinct Register and ask you to sign next to your facsimile signature. The Clerk will then verify your identity by comparing your handwritten signature to your facsimile signature. It may be helpful to bring picture identification with you when you vote.

I cannot get enough of that last sentence. I must have read it at least 20 times.

Lastly, if voting is difficult for you because of language or physical disability, the election officials are required to allow assistance:

NRS 293.296  Assistance to voter who is physically disabled or unable to read or write English.

      1.  Any registered voter who by reason of a physical disability or an inability to read or write English is unable to mark a ballot or use any voting device without assistance is entitled to assistance from a consenting person of his or her own choice, except:

      (a) The voter’s employer or an agent of the voter’s employer; or

      (b) An officer or agent of the voter’s labor organization.

      2.  A person providing assistance pursuant to this section to a voter in casting a vote shall not disclose any information with respect to the casting of that ballot.

      3.  The right to assistance in casting a ballot may not be denied or impaired when the need for assistance is apparent or is known to the election board or any member thereof or when the registered voter requests such assistance in any manner.

      4.  In addition to complying with the requirements of this section, the county clerk and election board officer shall, upon the request of a registered voter with a physical disability, make reasonable accommodations to allow the voter to vote at his or her polling place.

      (Added to NRS by 1973, 293; A 1977, 244; 1985, 1093; 1987, 693; 1999, 2156; 2015, 1146)

You, the voter gets to pick whom will assist you. No one else (there are exceptions, see the rest of the law below). 

Still think it is too difficult/inconvenient to vote? I wrote a Not-Very-Modest Proposal to fix our election problems..

Thanks for reading.

 

Footnotes   [ + ]

1. which stands for Nevada Revised Statute
2. Cite
3. kidding!
4. Yes, Jon’s right. Doesn’t excuse that tone of his though.
5. Small aside. In 2008 i worked for the “Election Protection” team in Las Vegas where we went to the polls to make sure voters weren’t being made uncomfortable. At the North Las Vegas polling place I visited, there was in fact a man there in a white button down shirt, bright red tie, with a steno pad, looking at each voter’s face and making a note on his pad. I just went and stood next to him..he left 10 minutes later. Guess he had all the notes he needed.
6. legally binding statement
Nevada election

A Not-Very-Modest Proposal to Fix Nevada Election Problems

Insanity: Doing the same thing over and over again and expecting different results.

-Albert Einstein

 

(Editors note: the piece has been reformatted for better accessibility-6/2/2016)

 

If We Change Nevada Election Laws, What Should They Be?

Good news! The answer isn’t all that complicated, and we don’t have to start from scratch.

We clearly (given that Nevada has been a state for 150 years and still cannot host an election) don’t have (or desire to spend) the resources to adequately (some might contend “Constitutionally”) administer elections. This is important to acknowledge.

If learned anything from the state convention, it is that the people working for the Nevada Democratic Party cannot administer an unbiased primary.1)It wasn’t just the convention; I have talked with multiple voters that told me their Caucus wasn’t not administered properly. I caucused up in Anthem (with Sen. Reid in the building, though in a different precinct), and I personally witnessed at least three caucuses run improperly (as in, not according to the party’s rules. Worse, I saw caucuses run by the same precinct chair, administered differently [I guess if you wanted to be in a caucus that followed party rules, it was luck of the draw] in the same gymnasium). If the party doesn’t administer the caucus correctly with the Godfather in the building, I have no reason to think any Caucus meeting was completed in the proper order. If the people working for the NV Dems are so passionate about Hillary Clinton (nothing wrong with that) that they could not administer a caucus fairly, they should have asked someone else to do it. Updating the rules, on the fly, the meet the needs of their preferred candidate, is just not good enough. Our friends in the Nevada GOP have their own legitimacy issues. Do a little reading about the 2012 race; the google can help.

For the reasons discussed above, legitimate ruling authority is more important than any other single issue the legislature will address next session. If the people in office were not put there by legitimate means, no subsequent action taken by these officials will be seen as legitimate.2)Keep going down the logic tree, or read about the ongoing coup in Brazil if you want a real world exampleThis speaks to the very essence of our society.

If we were going to a Rawslian3)I just mean starting from a “state of nature,” as in the famous thought experiment where you would design a system of justice from scratch, perhaps with equal outcomes. experiment here, perhaps I would propose something far more radical4)Imagine if our elections were community meetings of say a couple dozen people that had a fruitful discussion before each individual declared her preference. Or if the complex issues of the day got the debate they deserve. Or if the elected officials entrusted to make tough decisions aren’t permitted to leave the room before action has been taken, etc..

But we don’t need to “revolutionize” the Nevada election process. Our 9th Circuit neighbors to the north have done most of the legwork for us. Up in Oregon, they have enacted (and tested) vote-by-mail laws. 30 years later, the results from their experiment are extraordinary! (wait until you see their voter participation numbers). Let me quote the Oregon Secretary of State to explain the process:

 

Registered voters receive a ballot two to three weeks before an election, giving time to research issues or candidates.

Voters also receive an official ballot to complete and insert into the security envelope which is placed in the ballot return envelope and signed by the voter. The ballot return envelope can be stamped and mailed or dropped off at any official drop box across the state. If a voter casts their ballot after the Wednesday before an election, the ballot should be left at a drop box site to ensure it’s counted.

Ballots must be received by 8 p.m. on Election Day.

 

Better than that? The same process applies for the primary! Problem solved!

Just in case the benefits don’t jump off your mobile device at you, allow me to list the first ten I could think of:

  1. No More Long lines: In a state where folks work around the clock, having folks stand in line for hours to vote is terrible for our economy. Just think of all the waste from the February caucus.
  2. No More Voter Intimidation: There have been complaints5)I’m not speaking to their veracity that certain voters, from both parties, feel intimidated.6)I recall seeing pictures on State Sen. Aaron Ford’s account of voter intimidation that will infuriate any good Nevadan. Being able to express your voter preference is a fundamental tenant of American life and should be protected. This is the best means to do so.
  3. Improved Fairness for Our Senior Citizens: The first concerns listed above are particularly acute for our area seniors. Allowing folks to vote from home at their own convenience is an idea I believe most of our senior citizens would support.
  4. Improved Fairness for Casino Workers: If you haven’t worked in the casino industry, the shifts constantly are in flux (until you have tenure) and it is difficult to plan for anything too far in the future. Under the caucus system, people only have a 2 hour window to express their preference. Saturday is a busy day in the casino industry, and most of the Valley’s casino shifts include working on Saturday. Casino workers are the true foundation of our economy here, and we should be doing everything possible to make it easy for them to vote. I’m sure the Casino owners do not want to continue to pay their workers during the caucus either. Let casino workers vote when they can.
  5. Potential for a Significant Voter Turnout: In 2012, 2/3rd’s of the country didn’t vote. This is a huge problem for a number of reasons. 10% of registered democrats in the state voted in this year’s caucus. This is a civic failure of which we could blame any number of institutions, but now is not the time for distractions. The more cynical folks in the media like to use these stats to make unfavorable conclusions about Americans generally. Me? I think most Americans are willing to participate, they just don’t have 6 hours to dedicate to the process with families, work and other obligations. Don’t believe me? With a vote-by-mail option, More than 70% of Oregon residents voted in the 2014 midterm.
  6. More Honest Political Parties: Closed primaries don’t make sense in Nevada where as much as 1/3 of the voters do not want to be apart of either major political party. An open, vote-by-mail primary allows every citizen to have an equal voice in the process. Once the major parties have competition, they will be forced (as much as they can be) to meet the will of the voters. My conservative readers have to be in favor of more competition..
  7. People Will Feel Invested in Their Community: When 2/3rds of the country didn’t vote, these folks can just turn around and blame the other 1/3 without having to take any responsibility. We want our citizens to have skin in the game, to care about the results. I suspect that there are many people with the civic spirit in Nevada that want to participate and be a part of the process, but they are disincentivized by the impropriety of the process (even just the look of it). A more engaged citizenry will lead to a better Nevada, no question about it.7)There will be growing pains, but that’s ok!
  8. Fairness for Non-Partisan Voters: Did you know the fastest growing voter demographic in Nevada is non-partisan voter? Shouldn’t folks with independent streaks/non uniform political opinions be allowed to participate in the primary? Wouldn’t the result likely be a candidate that more of the country actually likes?8)Note, Nevada currently uses a closed primary system to exclude non-partisans from the process. This can be easily fixed.
  9. Lower Cost: Think about the cost of running an election for a moment: supplies, personnel, rent for polling locations, plus the opportunity cost of having public officials not completing their regular business. Then add on early voting! Know also that the ballot drop boxes around the state (under Oregon law) don’t need to be supervised (like a mail box). Also, in terms of added cost, we already send out a voter guide! Why not just include the ballot as well?
  10. A Better Government: Our government, like the rest of life, is a product of what we put in. A more engaged/inspired voting public will produce a more engaged/inspired government. When in life have you received something worthwhile that didn’t take serious effort to produce? It’s time to stop pretending our government is any different.

 

In case any of the members of our fine Nevada Assembly come across this discussion, I have included the Oregon statutes below for your perusal. Additionally, I included Oregon voting statistics, which alone should be enough to get you to consider this idea.

I would be the first to concede that my proposal is, by no means, modest. But for the listed reasons above, I ask the citizens of Nevada to take it under serious consideration.

We do not have to pick insanity. Our democracy is a beautiful thing. It’s time to reinvest.

 

How We Got Here

By now, you’ve heard at least a little bit about what happened at the Nevada Democratic Party State Convention from the Paris Hotel. Frankly, I’d be impressed if you haven’t.

If you missed all the fun, this Maddow segment sums up the Nevada election fun.

 

The look on Ralston’s face is priceless.9)How’s that #fallofTrump hashtag going by the way?

Here’s a litany of “thinkpieces”10)How long does someone need to think about something before a “reaction” becomes a “thinkpeice”? from the Convention, if it’s a recap you are after: NY Times CNN  Commentary Medium Salon Statement from Lucy Flores

I am less interested in what occurred last weekend, but much more concerned about what we should do going forward. As I wish more people were.

But how much does what happened last weekend matter? If the Nevada Democratic Party followed their own convention rules, Hillary would have won 13-12. With the new, updated11)to account for Bernie’s supporters winning too many delegates at the county conventionsconvention rules, Hillary won 15-10.

That’s right, all of this is about two delegates. Yes, every delegate counts. And Hillary is currently 274 delegates ahead of Bernie. For those of you not math inclined, we are talking about less than 1% of the total delegates. Unless Bernie wins at least 70% of the California vote, Hillary is going to win the primary.

As we keep calling each other names, please keep that in mind.

One last point regarding the Convention..

 

I, for one, would appreciate it if the national media stops reporting false facts to make Nevadans look bad. As far as I can tell, no Nevadan threw anything at anyone.

As for the disgusting harassment of Roberta Lange, no one has proven anyone from Nevada had anything to do with that either. Over on Jezebel, Anna Merlan wrote a great piece where she called up a few of these harassers and asked them to explain themselves. It’s worth reading in full. Of the three harassers she spoke to, none was from here.12)For all I know, these jerks all work for David Brock..I kid David, I’m sure he doesn’t do stuff like this anymore..

 

Now That We Got That Silliness Out of the Way, Onto Important Business

That is, that our primary (at the very least) has the appearance of impropriety. And that is a huge problem.

Yet, it is important to acknowledge that administration of a legitimate election is not a Nevada-specific issue. In fact, this is a problem in many13)but not all…stay tuned states in the union.

But how bad are things across the country?

http://www.esquire.com/news-politics/politics/news/a43311/war-on-voting/

Well, Charles Pierce had to write about it without cursing, so yes, pretty serious. In that piece, he aggregates voting issues in North Carolina, Wisconsin, and Alaska. Anyone else see a common theme across jurisdictions making it more difficult to vote?14)George W. Bush’s politics/results showed that conservative values can easily win on the merits; there’s absolutely no need/value for these laws.

We could continue to complain on social media, write terse letters to the editor, and create (less than mature) vines to express our displeasure, or we could Make a Change.

 

Why This Matters

In my humble opinion, this matters as much as anything we’ve written about on the Clear Counsel Legal Blog. We are talking about the fundamentals of our democracy here, the essence of our social contract. Allow me a moment to take a step back so we can get a little perspective.

When the uproar in Tunisia began in the end of 2010, I speculated15)#humblebrag…you’ll just have to believe me. Also, there were many a folk that said the same thing that it was very possible for the unrest to spread to the other neighboring countries. Why?16)I apologize for the Darling-esq rhetorical question

The conditions that acted as a catalyst in Tunisia were present across the Middle East17)Not the murder of the fruit vendor, but that the government was not chosen by the people but imposed on the people, and not the surprisingly, the unrest spread beyond Tunisia’s borders18)I’m going to put a pin in the discussion of the Arab Spring for now. Yes, I am aware of that there are many, many variables at play, and I am not omniscient. If you want more information about the Arab Spring, the Google can help.

That condition I speak of? The lack of legitimate authority over the citizens by the autocratic governments in question. This is incredibly important.

Beginning with the American Constitution of the 18th Century, peoples of the Western World declared that we (collectively) have the right to live by self-determination through self-governance. Europeans/fellow Americans followed suit over the next 200 years to the extent that now most Western societies consider governments that were not popularly elected as illegitimate19)I am fully aware of the happens of Brazil…We should let that play out before drawing conclusions. Certainly, it’s concerning.

The brilliance of our American experiment is that we,

1. Established a repeatable means to determine whom should lead us, and

2. Instituted an invaluable20)literally, try to put a price on this method for the peaceful transition of power.

Let’s reflect why this is important. Before 1776, Every person in the world was born into a society in which s/he had no voice/power to make a change. Political transitions before the Great American Compromise were, in essence, a storming (then subsequent re-storming) of the Bastille. The peasants of this era (and before) had no means to express their displeasure, except a good storming.

Imagine, if instead of having an election every 4 years, there was a violent conflict for power? Sounds awful, right? There’s real value in our political development over the past 200 years.

Good. We start here.21)Unfortunately, this is where most of the analysis I have seen stops. We seem to have hundreds of people ready/able/willing to disseminate an opinion, less that want to try to address the issues in question.

In reference to the Einstein quote to open the piece, if we don’t make serious changes to the Nevada election laws, there is no reason to think all of this chaos won’t happen again in 2018, 2020, 20204..

It doesn’t have to be that way!

 

Thanks for reading.

http://sos.oregon.gov/elections/Documents/246.pdf

 

 

http://sos.oregon.gov/elections/Documents/251.pdf

http://sos.oregon.gov/elections/Documents/Voter-Turnout-History-Primary.pdf

http://sos.oregon.gov/elections/Documents/Voter_Turnout_History_General_Election.pdf

 

 

 

Footnotes   [ + ]

1. It wasn’t just the convention; I have talked with multiple voters that told me their Caucus wasn’t not administered properly. I caucused up in Anthem (with Sen. Reid in the building, though in a different precinct), and I personally witnessed at least three caucuses run improperly (as in, not according to the party’s rules. Worse, I saw caucuses run by the same precinct chair, administered differently [I guess if you wanted to be in a caucus that followed party rules, it was luck of the draw] in the same gymnasium). If the party doesn’t administer the caucus correctly with the Godfather in the building, I have no reason to think any Caucus meeting was completed in the proper order. If the people working for the NV Dems are so passionate about Hillary Clinton (nothing wrong with that) that they could not administer a caucus fairly, they should have asked someone else to do it. Updating the rules, on the fly, the meet the needs of their preferred candidate, is just not good enough. Our friends in the Nevada GOP have their own legitimacy issues. Do a little reading about the 2012 race; the google can help.
2. Keep going down the logic tree, or read about the ongoing coup in Brazil if you want a real world example
3. I just mean starting from a “state of nature,” as in the famous thought experiment where you would design a system of justice from scratch, perhaps with equal outcomes.
4. Imagine if our elections were community meetings of say a couple dozen people that had a fruitful discussion before each individual declared her preference. Or if the complex issues of the day got the debate they deserve. Or if the elected officials entrusted to make tough decisions aren’t permitted to leave the room before action has been taken, etc.
5. I’m not speaking to their veracity
6. I recall seeing pictures on State Sen. Aaron Ford’s account of voter intimidation that will infuriate any good Nevadan
7. There will be growing pains, but that’s ok!
8. Note, Nevada currently uses a closed primary system to exclude non-partisans from the process. This can be easily fixed.
9. How’s that #fallofTrump hashtag going by the way?
10. How long does someone need to think about something before a “reaction” becomes a “thinkpeice”?
11. to account for Bernie’s supporters winning too many delegates at the county conventions
12. For all I know, these jerks all work for David Brock..I kid David, I’m sure he doesn’t do stuff like this anymore..
13. but not all…stay tuned
14. George W. Bush’s politics/results showed that conservative values can easily win on the merits; there’s absolutely no need/value for these laws.
15. #humblebrag…you’ll just have to believe me. Also, there were many a folk that said the same thing
16. I apologize for the Darling-esq rhetorical question
17. Not the murder of the fruit vendor, but that the government was not chosen by the people but imposed on the people
18. I’m going to put a pin in the discussion of the Arab Spring for now. Yes, I am aware of that there are many, many variables at play, and I am not omniscient. If you want more information about the Arab Spring, the Google can help
19. I am fully aware of the happens of Brazil…We should let that play out before drawing conclusions. Certainly, it’s concerning.
20. literally, try to put a price on this
21. Unfortunately, this is where most of the analysis I have seen stops. We seem to have hundreds of people ready/able/willing to disseminate an opinion, less that want to try to address the issues in question
gmo produce food america monsanto

The New GMO Law: Is It Constitutional?

The GMO labeling debate has gone national! Those of us that live out west have been hearing these rumblings for years, but since the Congress has taken up the issue, now we may debate it as a country.  It seems no one has a lukewarm opinion of GMOs; people either hate them passionately, or hate the people who hate them1)with an equal amount of passion.

There are currently three states2)Vermont, Connecticut and Maine that have passed laws requiring food companies to note on their label if the food product being sold was produced with a GMO. However, there are 85 more GMO related bills in 29 additional states addressing GMO labeling3)Source. The anti-GMO folks consistently cite poll numbers that say 90% of the public would prefer that food made with a GMO be labeled as such. We cannot count on our friends in the House of Representatives for much, but when a super majority of the populace agree on a matter, they most often will take a strong stand on that issue.

The opposite seems to be occurring with the GMO legislation.  Last week, the House passed the Safe and Accurate Food Labeling Act of 20154)the latest in ironic bill names from the House, the details of which we will go into in a moment.   For now, know that the environmentalist crowd is quite irritated with the bill. Before we take sides, point fingers and do a little name-calling, we will need a little background on what a GMO is and why everyone is so upset.

 

What is a GMO and is it necessary to label them in our food?

A GMO is a “genetically modified organism” which means food that was grown from seeds that are manufactured5)the correct verb choice here is difficult, the scientists are splicing genes and attempting to optimize desirable attributes.  Currently, there are only eight GMO products that are permitted to be sold on the U.S. market:

  1. Corn
  2. Soy
  3. Alfalfa
  4. Canola
  5. Cotton
  6. Papaya
  7. Sugar Beets
  8. Zucchini and Yellow Summer Squash6)Source

You may be interested to know that the majority of processed food7)think food you buy in a box is also on this list because most corn syrup is made with GMO corn. Also, the majority of animals that we eat (cows, pigs, chickens) are fed with GMO produce. With that in mind, know that since GMO produce have been on the market since the 1980s. In turn, we all are one big case study of the effects of GMO produce on humans.

I do not have a strong opinion on this issue, one way or the other8)that should sufficiently upset everyone so please do not take the above statement as a GMO endorsement. The Europeans have done hundreds of tests on GMO products for years now and have yet to come back with any conclusive evidence that GMO food products are harmful for humans to consume. This does not mean that GMO foods are not harmful, only that there is no scientific evidence to suggest such. Everyone offended now? Good. Let us take a glance at the bill that passed the House.

 

How does the Safe and Accurate Food Labeling Act of 2015 affect GMO labeling?

The proposed bill states the following:

Section 424. Food derived from new plant varieties

(2)Labeling required

The Secretary may require that the labeling of a food produced from, containing, or consisting of a genetically engineered plant contain a statement to adequately inform consumers of a difference between the food so produced and its comparable food if the Secretary determines that—

(A)there is a material difference in the functional, nutritional, or compositional characteristics, allergenicity, or other attributes between the food so produced and its comparable food; and

(B)the disclosure of such material difference is necessary to protect public health and safety or to prevent the label or labeling of the food so produced from being false or misleading in any particular.

 

As I am sure you can tell, “material difference” is the key term here. Because American scientists have not found a difference in taste, nutritional value, or form of GMO crops, the federal government considers there to be no “material difference” between organic and GMO bread produce.  Until science discovers9)if there is one a “material difference,” Big Food10)tm pending? will not be required to label their GMO grown products.

Section 113. Preemption

Regardless of whether regulations have been promulgated under section 112, beginning on the date of the enactment of this Act, no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce any requirement with respect to the sale or offering for sale in interstate commerce of a genetically engineered plant for use or application in food that is not identical to the requirement of section 461 of the Plant Protection Act (as added by section 111 of this Act).

 

This language, as you will see below, explicitly states how federal and state laws interplay. If the Congress passes a law about a subject matter, then the states are not permitted to pass laws that regulate the legal area in a different manner. This is the Supremacy Clause (of the Constitution) in action.

Section 203. Effective date; preemption

(b)Prohibitions against mandatory labeling of food developed using genetic engineering

(1)In general

Subject to paragraph (2), no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any covered product (as defined in section 291 of the Agricultural Marketing Act of 1946, as added by section 201 of this Act) in interstate commerce, any requirement for the labeling of a covered product indicating the product as having been produced from, containing, or consisting of a genetically engineered plant, including any requirements for claims that a covered product is or contains an ingredient that was produced from, contains, or consists of a genetically engineered plant.(emphasis added)

 

If you have come across the Safe and Accurate Food Labeling Act of 2015 in a press account, this is the section of the law folks are most upset about.11)Not that I have a dog in the fight but the political party sponsoring this bill is the same one that has been arguing for a few years now that Obamacare violates states’ rights. Some folks on the other side of the aisle are perturbed. I say if you want logically consistency, politics is not the place to look The text above would make it illegal for the three states that have passed GMO labeling legislation to put it in effect and prevent any other states from taking similar action. Folks on both sides12)once they are finished with the ad hominems think the opposition is violating the Constitution. We will have to dig deeper to find out for sure.

 

There must be a Constitutional violation here somewhere; we may need to round up the usual suspects

Each side in this debate feels the other is violating the constitution. First, our libertarian/state’s rights friends claim that the federal government does not have the constitutional authority to dictate to a state government if it is permitted to require a GMO label on food sold in their state.13)Source.

It is time to get out our pocket Constitutions! To comprehend the constitutionality question, we need to understand the Commerce Clause. I call your attention to Article I, Section 8, Clause 3, which states that the Congress has the power:

“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”

I bet you are wondering how broad the term “Commerce” is in that context. If so, you have latched onto one of the most controversial areas of constitutional law. The interpretation continues to develop with the change in norms of each generation of Americans14)good thing the Constitution is a living, breathing document. See also Missouri v. Holland 252 U.S. 416 [1920]

I will avoid a summary of the history of Commerce Clause interpretations15)for the sake of time, space, and your sanity and instead excerpt a summary from Justice Stevens from Gonzalez v. Raich:16)In this case, the federal government raided a Californian’s medical marijuana supply. The Respondent, Mr. Raich [You may remember Mr. Gonzalez as President Bush’s Attorney General] claimed that the federal government had no legal authority prohibit his growth or use of medical marijuana that took place exclusively in the state of California. The Court disagreed with Mr. Raich.

In assessing the validity of congressional regulation, none of our Commerce Clause cases can be viewed in isolation. As charted in considerable detail in United States v. Lopez, our understanding of the reach of the Commerce Clause, as well as Congress’ assertion of authority thereunder, has evolved over time. The Commerce Clause emerged as the Framers’ response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. Then, in response to rapid industrial development and an increasingly interdependent national economy, Congress “ushered in a new era of federal regulation under the commerce power,” beginning with the enactment of the Interstate Commerce Act in 1887, 24 Stat. 379, and the Sherman Antitrust Act in 1890, 26 Stat. 209, as amended, 15 U. S. C. §2 et seq.

Cases decided during that “new era,” which now spans more than a century, have identified three general categories of regulation in which Congress is authorized to engage under its commerce power. First, Congress can regulate the channels of interstate commerce. Perez v. United States, 402 U. S. 146, 150 (1971). Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce. Ibid. Third, Congress has the power to regulate activities that substantially affect interstate commerce. Ibid.; NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37 (1937). Only the third category is implicated in the case at hand.

Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce. See, e.g., Perez, 402 U. S., at 151; Wickard v. Filburn, 317 U. S. 111, 128–129 (1942). As we stated in Wickard, “even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.”17) 545 U.S. 1, 12-13 [2005](emphasis added).

 

If you are not familiar with Wickard18)cited in the paragraph above, you would not believe how angry a dispute of selling wheat would make people (seriously, really angry).  As much as my libertarian friends would like to think the Safe and Accurate Food Labeling Act of 2015 is unconstitutional, it is difficult to make a distinction from Wickard or Raich because, even though, states like Vermont19)In the 19th/early 20th century, the Commerce Clause cases were concerned with states protecting local industries and arbitrarily punishing competitive industries from foreign states[protectionism is as old as any type of politics]. Interestingly, the Vermont law exempts cheese and beer from the food products requiring GMO labeling. are only regulating commerce within their own borders, their regulations will have a “substantial effect on interstate commerce,” and therefore, the regulation from a federal level is likely constitutional.20)Some critics of commerce clause jurisprudence find that contemporary courts decisions to be blatantly results-oriented, meaning that the courts will use the commerce clause to allow the federal government to regulate industries they find displeasing (marijuana, small business) but not for issues where they are sympathetic to the users (guns, big business), for instance see United States v. Alfonso D. Lopez, Jr., 514 U.S. 549 (1995), where the court struck down a federal law banning guns near schools. I would defend my justice friends with more passion if the distinctions drawn made more sense. I find it unlikely, if the Safe and Accurate Food Labeling Act of 2015 is signed into law,21)also unlikely, even if it gets through the Senate that a court would declare that the federal government overreached.

In fact, a few months ago a federal judge in Vermont (Act 120 is the law I am referring to) examined the inverse of the question, whether it is unconstitutional for a state to pass laws requiring food manufacturers to label GMOs if they want to sell in the state.  Big Food22)tm pending? sued the state to prevent Vermont from instituting the new GMO labeling law.  They threw the kitchen sink at Vermont, saying they violated the First Amendment23)mandatory speech?, the Equal Protection Clause, and the Supremacy Clause. The Court only upheld the last constitutional objection, because the FDA promulgated laws through FMIA24)The Federal Meat Inspection Act and PPIA25)Poultry Products Inspection Act that concerned the sphere of influence of GMO labeling:

Act 120 mandates a GE26)genetically engineered disclosure that is clearly in addition to and different than the marking, labeling, and packaging requirements imposed under the FMIA and PPIA. Act 120’s GE disclosure requirement is therefore expressly preempted for products subject to those federal laws.27)Grocery Manufacturers Association et al v. Sorrell et al, No. 5:2014cv00117 – Document 95 [D. Vt. 2015] p. 42(emphasis added)28)Mr. Dillard has more on the Vermont opinion.

 

Although Judge Reiss29)author of the Vermont opinion is not the final authority of what is and is not constitutional, her contention that Act 120 may violate the Supremacy Clause is persuasive.  Granted, on its face, this seems confusing. States are permitted to regulate cigarette smoking, both in terms of where and how much it costs, and alcohol (with respect to the liquor content of certain beverages, for example). Why would states not be permitted to regulate if GMOs are permitted in her citizen’s food? Any legislative arena that the federal government has abdicated (by lack of legislative action) or is forbidden to regulate (by the Constitution) is in the purview of the states. The FMIA and PPIA (with respect to meat) and the new bill would assign the arena of GMO labeling exclusively to the federal government. Dislike this as an anti-GMO person/states’ rights individual? Time to call your Congress-person.

 

How will we address our GMO concerns in the long run?

First, we need to have a better understanding of why so many folks want GMO labels on our food. Unfortunately for them, but Monsanto has been straw-manned into the evil corporate entity that wants to overtake our food supply30)not that the other GMO companies have much better reputations. Many of us are familiar with the rumors of what Monsanto produced during the Vietnam War31)rhymes with cagent dorange, and a lot of folks, justly or unjustly, are uncomfortable with the same company selling us food. Maybe one or more of these companies could use a Blackwater-esq rebranding?

Often cited is the fact that more than 60 countries have banned GMO produce. If a GMO is not harmful, than why the worldwide ban? A little conjecture, given that I am not privy to internal politics of any other countries (or even ours): Perhaps the ban is political. The majority of the companies that sell GMO seeds are American, and American corporations do not have the best reputation abroad32)rightly or wrongly. Perhaps all these countries do not want to be dependent on American corporations for their food supply. Although state autonomy is a valid motive, it is distinct from GMO food being dangerous.

In fact, the American Association for the Advancement of Science ends their paper discussing the research of the health effects of GMO foods with the statement “Legally mandating such a label can only serve to mislead and falsely alarm consumers.”33)Source I am not sure I buy that claim, but I will take them at their word.

This New York Times debate on GMO products has a nice segment that middles the issue:

Currently, there are two paradigms of agriculture being widely promoted: local and organic systems versus globalized and industrialized agriculture. Each has fervent followers and critics. Genuine discourse has broken down: You’re either with Michael Pollan or you’re with Monsanto. But neither of these paradigms, standing alone, can fully meet our needs.

Organic agriculture teaches us important lessons about soils, nutrients and pest management. And local agriculture connects people back to their food system. Unfortunately, certified organic food provides less than 1 percent of the world’s calories, mostly to the wealthy. It is hard to imagine organic farming scaling up to feed 9 billion.

Globalized and industrialized agriculture have benefits of economic scalability, high output and low labor demands. Overall, the Green Revolution has been a huge success. Without it, billions of people would have starved. However, these successes have come with tremendous environmental and social costs, which cannot be sustained.34)I found each entry of this debate interesting; it is worth a look

 

Like it or not, GMO foods will likely be part of our future. For those concerned about their safety, it might be wise to engage in the debate so that there is at least some regulation35)My guess is that many of the anti-GMO folks have similar passions toward fracking. Disengagement and protest have not resulted in any less domestic drilling, nor any progress in having the drilling companies identify what is in the fracking liquids

More GMO reading for your perusal, in particular I enjoyed the material written by grist.org36)also a silly Jimmy Kimmel video as a reward for all your hard work:

 

The Hill

Open Secrets

Nature News

RT

USA Today

Mother Jones

Common Dreams

Scientific American (subscription required)

Grist

Grist II

 

Footnotes   [ + ]

1. with an equal amount of passion
2. Vermont, Connecticut and Maine
3. Source
4. the latest in ironic bill names from the House
5. the correct verb choice here is difficult, the scientists are splicing genes and attempting to optimize desirable attributes
6. Source
7. think food you buy in a box
8. that should sufficiently upset everyone
9. if there is one
10, 22. tm pending?
11. Not that I have a dog in the fight but the political party sponsoring this bill is the same one that has been arguing for a few years now that Obamacare violates states’ rights. Some folks on the other side of the aisle are perturbed. I say if you want logically consistency, politics is not the place to look
12. once they are finished with the ad hominems
13. Source
14. good thing the Constitution is a living, breathing document. See also Missouri v. Holland 252 U.S. 416 [1920]
15. for the sake of time, space, and your sanity
16. In this case, the federal government raided a Californian’s medical marijuana supply. The Respondent, Mr. Raich [You may remember Mr. Gonzalez as President Bush’s Attorney General] claimed that the federal government had no legal authority prohibit his growth or use of medical marijuana that took place exclusively in the state of California. The Court disagreed with Mr. Raich.
17. 545 U.S. 1, 12-13 [2005]
18. cited in the paragraph above
19. In the 19th/early 20th century, the Commerce Clause cases were concerned with states protecting local industries and arbitrarily punishing competitive industries from foreign states[protectionism is as old as any type of politics]. Interestingly, the Vermont law exempts cheese and beer from the food products requiring GMO labeling.
20. Some critics of commerce clause jurisprudence find that contemporary courts decisions to be blatantly results-oriented, meaning that the courts will use the commerce clause to allow the federal government to regulate industries they find displeasing (marijuana, small business) but not for issues where they are sympathetic to the users (guns, big business), for instance see United States v. Alfonso D. Lopez, Jr., 514 U.S. 549 (1995), where the court struck down a federal law banning guns near schools. I would defend my justice friends with more passion if the distinctions drawn made more sense
21. also unlikely, even if it gets through the Senate
23. mandatory speech?
24. The Federal Meat Inspection Act
25. Poultry Products Inspection Act
26. genetically engineered
27. Grocery Manufacturers Association et al v. Sorrell et al, No. 5:2014cv00117 – Document 95 [D. Vt. 2015] p. 42
28. Mr. Dillard has more on the Vermont opinion
29. author of the Vermont opinion
30. not that the other GMO companies have much better reputations
31. rhymes with cagent dorange
32. rightly or wrongly
33. Source
34. I found each entry of this debate interesting; it is worth a look
35. My guess is that many of the anti-GMO folks have similar passions toward fracking. Disengagement and protest have not resulted in any less domestic drilling, nor any progress in having the drilling companies identify what is in the fracking liquids
36. also a silly Jimmy Kimmel video as a reward for all your hard work
Flag of South Carolina

The Confederate Flag Has Little to do with Free Speech

Pardon my pontificating by wading into a politically charged subject, but the issue has really gotten under my skin and I cannot hold it in any longer. And, yes, I am going to take a side in this debate and you may not like it. I am talking, of course, about the hubbub about the Confederate battle flag (or whatever you prefer to call it). Here is my take on the issue: free speech has nothing to do with it.1)What? You thought I was going to pick a side on what to actually do about the flag? The author does have an opinion on that question, but reserves the right to blog about that question at another time. Feel free to hit me up for lunch if you want to know my opinion privately.

As is well-known, in the wake of the shooting in Charleston, SC, numerous companies and state and local governments have removed the Confederate flag and merchandise bearing images of the Confederate flag from their shelves and buildings. Wal-Mart, Amazon, Sears, and eBay (among others) have all announced that they will no longer sell any merchandise that bears the Confederate flag.2)CNN has the story NASCAR has asked its fans to not fly or display the Confederate flag at NASCAR events.3)The LA Times has the story The South Carolina legislature quite publicly determined to remove the Confederate flag from its state capitol building.4)Reuters has the story

Among other responses from defenders of the flag, the response that drives me crazy and makes me want to write a blog post about it is this: “But, what about my free speech rights? How can Wal-Mart take away my right to wear the flag? That’s unconstitutional!” AAAGH!! No, this is not about your free speech rights. I am not going to tell you5)in this blog post whether you are right or wrong to love the flag and want to fly it or wear it loud and proud, but I am going to tell you6)with peace and love that your free speech rights are not affected.

 

The Constitution and the confederate flag

The First Amendment to the Constitution provides that “Congress shall make no law … abridging the freedom of speech, or of the press ….” Simply stated, the United States Supreme Court has consistently (and always) upheld the principle that governments (city, state, national) and their various departments may not codify or enforce laws that tell you what you may or may not say. Most importantly, in order for a restriction on speech to be unconstitutional, the restriction must have been imposed by the government, not by a private citizen or business7)Univision also did not violate the First Amendment by breaking up with Donald Trump.

Now let us look at the examples noted above. When Wal-Mart, Amazon, Sears, and eBay made a business decision that they will not sell merchandise bearing images of the flag, this was NOT an unconstitutional restriction on anyone’s free speech rights because their decision was not compelled by a governmental action. In other words, no governmental entity forced these private companies to make this decision. However, if the government passed a law that told these companies that they are prohibited from selling merchandise with images of the flag, that WOULD be an unconstitutional restriction of free speech. To my knowledge, no governmental entity anywhere has yet passed a law telling private companies that they cannot sell such merchandise. These companies have simply made a business decision that they will not engage in certain speech. You, of course, still have every right to own, fly, and/or wear any item you want that shows images of the Confederate flag and no governmental entity has yet told you that you are legally prohibited from doing so. However, you do not have a constitutional right to require WalMart or eBay to sell it to you.

Whatever you feel about the “political correctness” of business decisions by private companies, please, for the love of the Constitution, do not ever say, “But what about my rights of free speech?”

Footnotes   [ + ]

1. What? You thought I was going to pick a side on what to actually do about the flag? The author does have an opinion on that question, but reserves the right to blog about that question at another time. Feel free to hit me up for lunch if you want to know my opinion privately.
2. CNN has the story
3. The LA Times has the story
4. Reuters has the story
5. in this blog post
6. with peace and love
7. Univision also did not violate the First Amendment by breaking up with Donald Trump
music and politics

Copyright Laws: When Music and Politics Do Not Mix

We are in the heart of political primary season, meaning we have reached that time, as we do every four years, where politicians play rock songs during their campaign events, followed by musicians becoming irritated and lashing out at said politicians in the press.

Who is in the right here? Are the musicians being overly sensitive or are the politicians violating copyright law? We will have to unpack a few laws to find out. We will have to start at the primary point of reference for all good legal discussions, the U.S. Constitution.

 

Who regulates copyright laws?

Ah, it is time to get out your pocket constitution that I know all of you are carrying!1)I hear there is a new ithing case that can hold your pocket constitution and smart phone all at once. In case you left your pocket constitution in your other pants, I will reproduce Article VI, Section 2:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. (emphasis added)

 

Supreme huh? The courts interpret Article VI, Section 2, to mean that if the federal constitution expressly grants authority to the federal government to regulate a subject matter, than the states are preempted and may not pass laws regarding that subject area. If the constitution is silent regarding an issue, then the authority to regulate the matter belongs to the states.

So does the constitution grant authority to the federal government to regulate copyright law? Indeed. Let us look at Article I, Section 8:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

 

Courts interpret Article I, Section 8 to mean that the federal government has exclusive rights to regulate copyright laws2)copyright laws are different than trademarks, which states are permitted to regulate so long as the state laws are not contrary to federal trademark laws.

 

What are the federal copyright laws?

Now we must examine the U.S. Code, in particular 17  U.S.C. 106 and 107:

§ 106. Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

 

§ 107: Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

 

As you can see, Section 106 grants an exclusive copyright to the author of a musical work to distribute the work as s/he sees fit.  Political campaigns often cite Section 107 as an excuse when accused of using a song at a rally without consent of the artist. To see if their excuse holds water, we will need to review each of the four elements in more detail.

 

How Section 107 of the copyright law applies to music played at a political rally

  • Purpose and character:
    • This is an inquiry into how the copyrighted music is being used. Courts will often look to see if there is a transformative quality in the art’s application. By transformative, I mean the use of the work that has a copyright changes or updates how the art was originally published. Additionally, courts will look to see if the copyrighted art is being used for profit or not-for profit. Although most candidates go heavily into debt on the trail, they are using the music for personal gain (power if not money), so this factor will not help.
    • Neither have I seen a campaign transform any copyrighted music for their own devises, so this factor will not assist them.
  • Nature:
    • Is the copyrighted work creative or factual? Use of factual material is given more leeway. Courts will also look to see if the work is published or not; they will be more stringent with unpublished works as creators have the right to decide how and if to release their work product.
    • These rock songs are creative works of art, hard to say the nature of the work supports campaigns using the music without permission
  • Amount of the work used:
    • Courts will look to see how much of a song is being played. Playing less than 30 seconds is more likely to be fair use, than playing the entire track.
    • Yet another strike against the campaigns, unless the candidates want to start running to the stage before a speech.
  • Effect on market value:
    • Will the use of the song hurt the market value of the art? This is where the campaigns have the most trouble. There are few forums that are less ‘Rock and Roll’ than a political rally. If a musician cultivates a counter-culture image, then has a straight-laced3)square politician play his or her song, folks might think that the musician is endorsing this politician. If consumers think the artists is lame, that will hurt sales.
    • Although it is possible for a campaign to use a song without issue under the ‘fair use’ doctrine, it is unlikely.

 

Will a Blanket License help protect them from copyright infringement?

For those music industry insiders, you already know of big corporations that license music on a mass scale.  For the rest of us, a small primer. Most artists belong to one of big companies that license use of their artists’ music on a mass scale4)ASCAP and BMI are the two largest companies. They offer what is called a “public performance license” which allows venues to play the music of the company’s artists without copyright infringement.  Many hotels, convention centers, and restaurants purchase one of these blanket licenses that permits them to play any of the company’s artists.

So you would think that many if a campaign held rallies at the large establishments as discussed, they would be protected from copyright infringement actions by the venues blanket license. However, in the contracts for the license, the music licensing companies explicitly prohibit the application of the license for conventions or rallies, meaning the music may be played in the hallways/elevators/common areas but not to heighten the experience of an event.

Additionally, many, if not all rallies, are posted online or played on television.  These public performance licenses do not cover electronic dissemination, and the campaigns will need to get permission from the publisher. This means if a campaign posts a video of a rally with the candidate coming to the stage to the sounds of the hottest rock act going, they are in violation of the copyright laws.

In turn, campaigns will often buy their own blanket license so that they may play music no matter where a rally is held5)who is to say if your local Pizza Ranch is paid up on their music public performance license.  Even this may not be sufficient, as you can see above.

 

Copyright, The Lanham Act, and Music and Politics

By now, you have got to be thinking to yourself, would it just be easier for the campaign to write an original jingle like they did in the old days?6)Come on, the “We like Ike” jingle was gold. The answer is probably. We cannot wrap up this discussion without the Lanham Act signed by President Truman:

 

15 U.S.C. § 1125 – False designations of origin, false descriptions, and dilution forbidden

(a) Civil action

(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or

(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities,

shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

(2) As used in this subsection, the term “any person” includes any State, instrumentality of a State or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this chapter in the same manner and to the same extent as any nongovernmental entity.

(3) In a civil action for trade dress infringement under this chapter for trade dress not registered on the principal register, the person who asserts trade dress protection has the burden of proving that the matter sought to be protected is not functional. (emphasis added)

 

This is similar to the fourth factor of the fair use doctrine. If a campaign was to use a song by an artist that did not like or endorse the politics of the campaign, subsection (A) would likely come into effect.  That is why you often will see campaigns claim that they have a blanket license to use the music of the objecting artist, but will cease playing it at future rallies.

If a campaign does not want to write original music, the course of action7)as I am sure you guessed by now is to ask permission of the artist.

 

What have we learned about copyright law in relation to music and politics?

But given that musicians have been making the same complaints publicly every four years since the mid-eighties, is it safe to assume the politicians now know better and will ask permission of the artists to avoid public shaming?

Does not seem so:

8)Is it worse to literally or figuratively hate someone?

 

Not to be outdone by Neil Young, who posted his thoughts on Donald Trump playing “Rockin in the Free World” during his Presidential announcement last month:

 

Yesterday my song “Rockin in the Free World” was used in a announcement for a U.S. presidential candidate without my permission.

A picture of me with this candidate was also circulated in conjunction with this announcement but It was a photograph taken during a meeting when I was trying to raise funds for Pono, my online high resolution music service.

Music is a universal language. so I am glad that so many people with varying beliefs get enjoyment from my music, even if they don’t share my beliefs.

But had I been asked to allow my music to be used for a candidate – I would have said no.

I am Canadian and I don’t vote in the United States, but more importantly I don’t like the current political system in the USA and some other countries. Increasingly Democracy has been hijacked by corporate interests. The money needed to run for office, the money spent on lobbying by special interests, the ever increasing economic disparity and the well funded legislative decisions all favor corporate interests over the people’s.9)Source

 

Sounds like just the kind of person you want to represent your mainstream candidacy for the Presidency! Of course, many media outlets picked up on Mr. Young’s comments, bringing unnecessary negative attention to the campaign. I am hard pressed to think of examples when asking permission would lead to a less desirable result. Here is more reading on music and political rallies10)my favorite section of the press pieces is in the Daily Beast article where Rep. Paul Ryan gets into a public spat with Tom Morello of Rage Against the Machine, oh the cognitive dissonance! That will be hard to top this election cycle. My hope is that a politician adopts Radiohead’s “Electioneering” as a campaign theme.

 

Daily Beast

CNN

NPR

Washington Post

Footnotes   [ + ]

1. I hear there is a new ithing case that can hold your pocket constitution and smart phone all at once
2. copyright laws are different than trademarks, which states are permitted to regulate so long as the state laws are not contrary to federal trademark laws
3. square
4. ASCAP and BMI are the two largest companies
5. who is to say if your local Pizza Ranch is paid up on their music public performance license
6. Come on, the “We like Ike” jingle was gold
7. as I am sure you guessed by now
8. Is it worse to literally or figuratively hate someone?
9. Source
10. my favorite section of the press pieces is in the Daily Beast article where Rep. Paul Ryan gets into a public spat with Tom Morello of Rage Against the Machine, oh the cognitive dissonance! That will be hard to top this election cycle. My hope is that a politician adopts Radiohead’s “Electioneering” as a campaign theme
Attractive Hispanic Woman Leaning on a One Hundred Dollar Bill.

What Woman Should be on the New $10 Bill?

“Every great dream begins with a dreamer. Always remember, you have within you the strength, the patience, and the passion to reach for the stars to change the world.”-Harriet Tubman

Here at Clear Counsel, we have a staff that includes a group of women that are as hard-working as they are intelligent.  Recently in the office there was a discussion pertaining to which woman should be put on the $10 dollar bill1)Why not the $100 by the way?.  More than a few of the answers were pretty great; we thought we would share three of our favorites2)note that if living women were being considered by the Treasury, we would have included a passionate argument for America’s greatest novelist, Toni Morrison

 

Woman 1: Jeannette Rankin

Of all these amazing women, Rep. Jeannette Rankin is probably going to be my number one pick.  Not only was she the first woman to serve in the U.S. House of Representatives during a time when permitting women in the world of Congress (or any sort of power for that matter) was still tenuous, but she took the challenge in stride. This position was not given to her on a silver platter, and she did not quit in the face of adversity. In fact, she succeeded with very little help (from her brother). I think that most U.S. Citizens could learn a thing or two just by simply hearing her story. What better teaching tool than putting her smack in the middle of a $10 bill?

 

Woman 2: Sarah Winnemucca

She utilized her agency in taking advantage of the fantasies of the patriarchal establishment and ideals of what Native American women were to sell photographs of herself as a Native American princess at as many outlets as possible.  Back in the day, for someone with no business upbringing, nor a thorough understanding of American commerce to come up with such an idea was astounding.  Not only did she make money, she made money for a purpose.  Native American children used to be taken from their families and brought to white boarding schools to be assimilated and to rid them of their culture and traditions.  Sarah used the money she made to petition the federal government for Native American policy reform and even built a school in Nevada just for the children so they would be educated while staying close to their families and keeping their traditions.  Did I mention that her whole tribe except for one was killed by settlers? And, as stated by Wikipedia:

The chief’s two wives (including Sarah’s mother) and infant son were killed. Although Sarah’s sister Mary escaped from camp, she died later that winter due to the severe conditions. Her younger sister Elma was out of the area, as she had been adopted by a French family in Marysville, California.

This means her whole family was killed as well, except for her sister who was adopted by a settler family.  This woman made huge changes for Native Americans even when her own people were no longer around to support her.  Strength, resilience, and and tenacity… truly a hero.

 

Woman 3: Harriet Tubman

Harriet Tubman risked her life as a “conductor” in the Underground Railroad to help free enslaved folks even after she reached freedom. Less known, she was a spy for the Union during the Civil War, providing key information from her scouts about the Confederate positions.   She was the first women in American history to lead a military expedition with several hundred men to free slaves, saving 750 men, women, children and babies.  Tubman helped the Union army because she wanted freedom for people forced into slavery at the risk of being hanged herself. American abolitionist, humanitarian, and during the American Civil War, a Union spy. Need I say more? This women rocks.

Footnotes   [ + ]

1. Why not the $100 by the way?
2. note that if living women were being considered by the Treasury, we would have included a passionate argument for America’s greatest novelist, Toni Morrison
nevada national monument

How the President Applied the Antiquities Act to Create the New Nevada National Monument

“The new Basin and Range National Monument is an area where the Mojave Desert meets the Great Basin and Joshua trees and cactus give way to a sea of sagebrush. It is home to desert bighorn sheep, mule deer, elk and pronghorn antelope. The land provided food and shelter for ancient people and we can still see the history of those people today in the incredible rock art panels. This area is a time capsule of our pioneering western history, from early explorers to mining to the ranching that still exists today. In its center is City, a grand modern art sculpture by world renowned artist Michael Heizer. It is a peaceful place. To me, it feels like home.” –Senator Harry Reid1)Elko Daily

 

“The immensity of man’s power to destroy imposes a responsibility to preserve.” -Congressman John F. Lacey, (R-IA), 1901

****Late December 2016 Update****

Image

28 December: President Obama, applying the very powers discussed below, named Gold Butte a national monument.

See below to learn about the political craftswork done by President Teddy Roosevelt to get this law put into effect.

(You must be wondering why the Congress would ever assent to assign such unchecked power to the executive..)

[End note]

Last week, President Obama, with the authority granted to his office by the Antiquities Act of 1906, declared 704,000 acres of land2)approximately the size of Rhode Island north of the Las Vegas Valley the Basin and Range National Monument.  Although much of the national press accords the credit3)or blame depending what you read to Sen. Reid for the creation of the monument; however, only President Obama has the authority to create the monument, and he alone decided if and when to act.

There are not many areas that the President has authority to act unilaterally; creating national monuments is one of the few.  Why was the office of the President granted this authority? And how has the power been applied in the 100 years since the act was signed into law by President Theodore Roosevelt?

Let’s get to it.

The Text and History of the Antiquities Act

The Act for the Preservation of American Antiquities (the Antiquities Act) was a product of the progressive political movement4)which consisted of members of both parties that began in the 1890s and culminated in 1916 with the creation of the National Park Service. Congress received multiple reports from the American Southwest that significant historical sites were being vandalized and pillaged by folks that want to steal artifacts and natural resources. Rep. John Lacy5)of the great state of Iowa attempted for more than ten years to pass this legislation to protect these areas, and finally, with the political assistance of the immensely popular President Roosevelt6)for more on President Roosevelt’s political aptitude, see Edmund Morris’ wonderful Theodore Rex, he was finally able to pass the bill in June of 1906.7)In fact, the bill originally was known as the “Lacy Act” at first, until it confused folks because Rep. Lacy’s bill to protect national wildlife was also referred to by the same name. People began to refer to this bill as the Antiquities Act as a means to differentiate. Section 2 of the bill states:

The President of the United States is authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected. When such objects are situated upon a tract covered by a bona fide unperfected claim or held in private ownership, the tract, or so much thereof as may be necessary for the proper care and management of the object, may be relinquished to the Government, and the Secretary of the Interior is authorized to accept the relinquishment of such tracts in behalf of the Government of the United States.8)16 U.S.C. [United States Code] 431, 1906(emphasis added) 9)Source

 

Richard Sellers10)a historian for the National Park Service wrote a great piece on the history of Federal preservation of land.  In it, he provides some context for how and why the Antiquities Act was passed:

In the realm of historic and natural preservation on the nation’s public lands, no law had ever approached the scope of the 1906 Antiquities Act. Much more broadly than with individual national park enabling legislation, the Act made explicit that preservation of historic, archeological, and other scientific sites on lands controlled by the federal government was indeed a federal responsibility. Somewhat analogous to the government’s concern for protecting private interests on private property, the national government accepted its obligation to protect the broad public interest on public lands, in this instance at places containing important remnants of the American past and significant scientific areas. The Act also made it clear that, unlike the forest reserves, the primary value of such special places lay not in their commercial value—in economics, sustainable harvesting, and profits—but in their contribution to education and knowledge for the general public good through research conducted and information disseminated by scientific and educational institutions.11)pg 293 Read the article here

 

The reasoning behind the law is fairly intuitive.  The language used is less so.  How is 700,000 acres of land a monument12)Merriam-Webster defines “monument” as “a building, statue, etc. that honors a person or event” and “a building or place that is important because of when it was built or because of something in history that happened there” 13)Merriam-webster? Does the term “scientific interest” really mean(in application any non-commercial interest? More from Mr. Sellers:

In what was from the first its most prominent section, the Act authorized the President to reserve special places located on lands controlled by the federal government: to “declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.” These places were to be designated “national monuments,” a term Hewett14)Edgar Lee Hewett was an influential, New Mexico-based archeologist who worked in Las Vegas for some time. devised, which distinguished them from national parks. While it employed the same proclamation procedure that had been used to establish the Casa Grande Ruin Reservation, it gave the President far greater authority, moving from the one-site authority for Casa Grande to placing no limits on the number of sites presidents could set aside. It thus significantly advanced the preservation authority of the Executive Branch, from not only managing preserved places such as archeological sites, battlefields, and national parks, but also establishing areas to be preserved. The Act’s inclusion of the phrase “scientific interest” opened the way for presidential proclamations that ultimately would set aside a huge array of scenic national monuments having important scientific values. (In 1978, the “scientific interest” wording of the Antiquities Act would help provide statutory authority for President Jimmy Carter to proclaim national monuments in Alaska that added more than 40 million acres to the national park system.) 15)Id. pg 294

 

Very sneaky, indeed. President Roosevelt went on to declare Devils Tower16)of Wyoming the first national monument under the new law in September of that year.  Like most power granted to the executive branch17)see the War Powers, generally, the reach of the authority expanded as the years passed.

This type unilateral executive power of the Antiquities Act was not unopposed

Our friends in the Congress have not18)and are not huge fans of the President’s unfettered authority19)at least when it comes at no political risk to themselves to declare lands sole property of the federal government. The first spat between the President and Congress occurred in the 1940s when FDR wanted to expand Grand Teton National Park to include the area surrounding Jackson Hole, Wyoming. Congress refused, “because, in the words of Sen. Henry Ashurst of Arizona, ‘the other States are not going to put over on Wyoming something that her two senators do not want.’”20) Source

Congress, irritated that the natural wealth and beauty of Wyoming could no longer be sold for profit to the highest bidder21)I kid, I am sure this was only about state sovereignty, passed the first exception to the Antiquities Act which prohibits the creation of any national monuments in Wyoming unless there is express authorization from Congress22)16 U.S.C. 431a, by express I mean written, passed legislation.

President Carter was the next chief executive to take the power granted by the Antiquities Act beyond what Congress found palatable. In the late 1970s, Congress could23)or would depending your perspective not pass legislation to protect wilderness of Alaska.  President Carter took on the political risk and declared 56 million acres as a national monument using the Antiquities Act. “Like FDR, [President Carter] sidestepped Congress, which up to that point had failed to pass an Alaskan lands protection bill because Alaskans opposed it. Alaskans in the area were incensed, and citizens in Fairbanks even burned President Carter in effigy.”24)see the NPR story cited above.

Note though, that no matter what folks said (or burned), the national monument designation remained.

Some politicians are unhappy with the new Nevada national monument

This discord between the President and the Congress/state governments continues.  Governor Sandoval, Senator Heller, Rep. Heck, and Rep. Hardy all have made public statements condemning the President’s use of the Antiquities Act to create the new Nevada National Monument.  All are displeased with not being more involved in the process, with Rep. Hardy expressing additional concerns about the national monument hurting economic growth in his congressional district.  When asked by KNPR about the Republican objections, Sen. Reid responded “I told them all what I was going to do,” he said. “Maybe they should have said something then.” 25)Source.

As an added externality, could this be Yucca Mountain’s last stand? There is speculation now that it will be all but impossible to build the railroad necessary to connect a potential Yucca Mountain repository.  To quote Robert Halstead, director of the Nevada Agency for Nuclear Projects, “This is the final nail in the coffin.”26)Source

 

Read more about the Basin and Ridge national monument here

Footnotes   [ + ]

1. Elko Daily
2. approximately the size of Rhode Island
3. or blame depending what you read
4. which consisted of members of both parties
5. of the great state of Iowa
6. for more on President Roosevelt’s political aptitude, see Edmund Morris’ wonderful Theodore Rex
7. In fact, the bill originally was known as the “Lacy Act” at first, until it confused folks because Rep. Lacy’s bill to protect national wildlife was also referred to by the same name. People began to refer to this bill as the Antiquities Act as a means to differentiate.
8. 16 U.S.C. [United States Code] 431, 1906
9. Source
10. a historian for the National Park Service
11. pg 293 Read the article here
12. Merriam-Webster defines “monument” as “a building, statue, etc. that honors a person or event” and “a building or place that is important because of when it was built or because of something in history that happened there” ((Merriam-webster
13. Merriam-webster? Does the term “scientific interest” really mean(in application
14. Edgar Lee Hewett was an influential, New Mexico-based archeologist who worked in Las Vegas for some time.
15. Id. pg 294
16. of Wyoming
17. see the War Powers, generally
18. and are not
19. at least when it comes at no political risk to themselves
20. Source
21. I kid, I am sure this was only about state sovereignty
22. 16 U.S.C. 431a, by express I mean written, passed legislation
23. or would depending your perspective
24. see the NPR story cited above
25. Source
26. Source
Clear Counsel Law group

Contact Info

1671 W Horizon Ridge Pkwy Suite 200,
Henderson, NV 89012

+1 702 522 0696
info@clearcounsel.com

Daily: 9:00 am - 5:00 pm
Saturday & Sunday: By Appointment Only

Copyright 2018 Clear Counsel Law Group ©  All Rights Reserved

Nothing on this site is legal advice.