Harvard Law & Policy Review

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The Silencing of Senator Warren

By Charles Tiefer*

The press coverage of Senator Elizabeth Warren’s silencing under Senate Rule XIX was colorful, but sadly shallow. Much more daunting than a one-cycle news bite or a catchy hashtag, the incident in fact revealed that today’s narrow Republican Senate majority is poised to use procedure to subjugate the minority Democrats to an extreme.

In the news bite version of the story, the Warren silencing was simply a clash of personalities against a background of quaint Senate rules that date to times when the chamber functioned as a “club” of distinguished gentlemen who used aristocratic norms of address.

Warren was silenced after she read aloud from a letter by Coretta Scott King, who had harsh words about Attorney General Jeff Sessions (R-Ala.), whom she called a racist in her 1986 letter. Republican Majority Leader Mitch McConnell (R-Ky.) brought out the rarely used Senate Rule XIX to silence Warren. In his words: “She was warned. She was given an explanation. Nevertheless, she persisted.”

Rule XIX(2) states: “No Senator in debate shall, directly or indirectly, by any form of words impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator.” And, Rule XIX(4) provides that “f any Senator, in speaking . . . in the opinion of the Presiding Officer transgress the Rules of the Senate the Presiding Officer shall . . . call him to order; and when a Senator shall be called to order he shall take his seat, and may not proceed without leave of the Senate . . . .” In the authoritative internal Senate guide, Floyd M Riddick & Alan S. Frumin, Riddick’s Senate Procedure, the rule comes under the heading “Disorderly Language, Use of, in Debate, and Restrictions on.”

The Warren incident, examined closely, provides a glimpse into the workings of Senate procedure today—workings that are potent indeed. My research on trends in Congress for The Polarized Congress: The Post-Traditional Procedure of Its Current Struggles—published in 2016—suggests that the current party alignment has predictable consequences. A Republican president, Donald Trump, and a Republican House headed by the strong-willed Speaker Paul Ryan, put enormous pressure on Senate Republicans to bring their partisan proposals to undiluted effectuation. They will push Majority Leader McConnell with all their might to drive through nominations and bills, which will require McConnell to exert significant, centralized power over his institution given his bare majority of fifty-two Republicans to forty-eight Democrats.

Two key trends of the recent past will help strengthen that push, both of which were manifest in the silencing of Senator Warren. First, of course, the Senate has become more and more polarized over the past half-century, increasingly straining and fraying the institution’s bipartisan fabric.

Second, the pressures on the Majority Leaders, especially (but not only) Republicans, have produced a cycle: the minority party resists majority lordliness; the Majority Leader increases his power of control by adding to his “toolkit” and then deploys that power; the minority party further resists majority dominance; and so on. Republicans in 2001 moved a massive tax cut without Democratic support for the highest numbers; Democrats in 2009-2010 moved the Affordable Care Act without Republican support.

Interludes occur when the minority party has enough discipline to turn the tables and kill all majority bills, as the Republicans did in 2010-2014, when the Senate became an absolute graveyard of majority-backed legislation. Yet these interludes do not stop the accumulation of new tools and powers for Majority Leaders to use.

Consider the Senate of past periods up to, say, the 1990s. Power was shared between majority and minority parties in a way that kept a modicum of harmony between them. Senate Majority Leader Howard Baker (R-Tenn.) conducted the chamber in relatively close consultation with Senate Minority Leader Robert Byrd (D-W.Va.).

The minority party typically held off on full use of its filibuster power, partly because of the level of leadership consultation and partly because bills were fashioned to be relatively tolerable to at least some of the minority party.

Now fast forward to the Senate in 2017. The first weeks of Trump’s presidency saw unprecedented signs that the mere fifty-two majority senators would produce action even if it meant trampling the minority. To name just a few:

–Republicans talked incessantly of using budget reconciliation for many major bills. This is a procedure, originally meant only for measures to reduce the deficit, which has evolved into a broad way to enact bills with any fiscal nature. Legislation considered under reconciliation procedures does not need sixty-vote cloture to overcome minority resistance, just a fifty-one-vote majority to pass. Reconciliation was made to order for a situation with a hard-driving House and a president whose party in the Senate has a bare fifty-two-vote majority. It was astonishing how many pieces of the Trump agenda Senate Republicans consider suitable for reconciliation, from the repeal of the Affordable Care Act to individual and corporate tax cuts.

–President Trump called on Republicans to use the “nuclear option” to crush Democratic resistance to the confirmation of Neil Gorsuch to the Supreme Court seat formerly occupied by Justice Antonin Scalia. Democrats seethed at how their own nominee to that seat, Merrick Garland, was last year refused even a hearing.

–Current Senate rules protect the right of the minority party to filibuster Gorsuch absent sixty votes for cloture. The “nuclear option” is a procedural maneuver for radically reshaping the Senate rules to reduce the number of Senate votes needed for cloture for a particular object. President Trump’s early demand to see the nuclear option used for Gorsuch showed utter disrespect for the Senate as an institution made of bipartisan cloth. Trump’s demand would not only ram through this particular nomination; it would also squelch the Democratic minority’s voice when subsequent Supreme Court seats open up over the next few years—seats for which Trump may name someone even further to the radical right, such as Judge William Pryor.

–Trump Cabinet nominees were rushed through the Senate, often by denying the rights of the minority. When Democrats demanded that financial documentation be completed so questions could be put to the nominees at hearings, they were disregarded. When Democrats had questions at hearings, the time for questioning was truncated. When Democrats exercised their right to stay away from the committee meetings to report the nominations to the floor, the nominations were reported in violation of longstanding quorum rules.

–Trump Cabinet nominees were approved by the Senate over opposition that would have certainly blocked them in the past. The day before the silencing of Elizabeth Warren, the Senate voted on Secretary of Education nominee Betsy DeVos. The senators split fifty-fifty on her nomination, with Vice President Mike Pence having to make the tie-breaking vote. (Unlike most—but not all—of the procedures discussed here, the Senate that made the change was a Democratic-majority chamber, which decided to reduce to a bare minority the vote needed for President Obama’s nominations. That change excluded the Supreme Court.)

–They did not get much attention, but in the background in early 2017 loomed two unusual processes by which the Republicans would swiftly redirect government spending, particularly to pump up defense outlays, without waiting for the regular 2017-2018 budget. Last December, the House and Senate financed the government only through April 2017, so that the new Republican president and Congress could immediately put their stamp on appropriations.

–In addition, an “emergency supplemental” spending bill is to be considered soon by the Trump Congress. Again in violation of regular order, which prescribes that such a bill be used for near-term unpredictable spending on active conflicts, this measure will probably be loaded with billions of dollars of long-term defense spending – spending that should have no place in a “war supplemental.”

So when Senator Warren was silenced by Rule XIX, the matter concerned not just a single senator speaking out about one controversial nominee. Warren was surrounded by a high, swirling tide of Republican-manipulated, inappropriately domineering procedures.

Senator Warren’s floor effort is a crucial point in the cycle discussed above. In the days immediately before her silencing, Republicans pounded their chests and proclaimed their intention to use tough majority tactics.

Senate Democrats felt some of the oppression experienced by their minority counterparts in the House.

Normally, just as a Senator could say anything she wanted about those in executive office, a Senator could say anything about a nominee to an executive office. However, since Sessions was still a Senator, he was the only kind of nominee for which Rule XIX could be invoked. Of course, Sessions was still a senator only because McConnell would not let him resign until after Betsy DeVos’s confirmation, for which the Republicans needed every single vote to make it to the fifty-fifty tie.

Conversely, the cycle of the Senate’s evolution traditionally meant that after the majority party had sufficiently flexed its muscle in ways like rushing confirmations and crushing filibusters, a Senate Democrat like Warren would take some kind of a stance to assert minority rights. Also traditionally, in the absence of Senate majority party muscle-flexing a senator who was warned to cease and desist would not continue to make rough statements about another senator – that would be seen as not just disrespect toward the other senator (who might nevertheless well warrant the comments) but also as a danger that could rend the fabric of the institution.

In today’s cycle, however, the minority already experiences the Senate fabric as frayed, subjected as it has been to restrictions, provocations and general disempowerment. So even though warned, the minority persists. There is little point in being careful with a cloth that has already been torn.

To some extent, the die now is cast: the Republican majority is expected to run roughshod over the minority. As noted, reconciliation can pass many bills by a bare majority. Were the minority to hold its ground, the step may be taken to allow Supreme Court nominations—plural—to be confirmed by a bare majority.

But there remains a zone of potency for the minority party, if it can hold fast to 41 votes to defeat cloture. In particular, the Senate has a powerful rule, the “Byrd Rule,” which dates to 1985, that sharply limits bills under reconciliation instructions to fiscal provisions only, not to non-fiscal legislation.

What would a unified Democratic minority be able in this way to filibuster in this way, in 2017 and thereafter? “Repairing or replacing” the Affordable Care Act would require sixty votes, as much of it is non-fiscal legislation. A partial repeal or a rewriting of Dodd-Frank bank-regulating legislation would require sixty votes. Moving through any school-voucher legislation from Betsy DeVos would require sixty votes, as would repealing the aspect of the Clean Air Act that deems greenhouse gases to be pollutants. Democrats should stay united enough, as Republicans did in 2010-2014, that such bills may pass only in bipartisan versions.

The silencing of Senator Warren pursuant to Rule XIX was much more than a colorful, one-day news story. It offers a window into the current dynamics of the Senate, exposing the strengths and vulnerabilities of the majority and minority parties.

*Charles Tiefer is professor at the University of Baltimore School of Law. He is the author of Congressional Practice and Procedure (1989) and The Polarized Congress (2016). He was Assistant Senate Legal Counsel and House General Counsel.

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Taking on Debt: Advancing the Discourse on America’s Bottom Line

 

by Ryan Cohen and Shane Hebel, Harvard Law & Policy Review, Volume 11 Editors-in-Chief

During this time, when our nation appears so divided, there is one thing that we all share, whether we are Democratic or Republican, teacher or coal miner, voter or U.S. President, from the coasts or from Appalachia. Debt. We may be a nation of red, white, and blue, but mostly, we are just in the red.

Our students are in debt (as graduate students, we can attest to that from personal experience). Our households are in debt. Our cities are in debt. Our nation is debt. Even our new president is in debt—billions of dollars of it. Collectively, Americans are $12.35 trillion in the hole. And that is not even including our $19 trillion national debt. In the past decade, U.S. household debt has risen 11 percent. Today, the average household with any debt at all is $132,529 in debt, including mortgages. Meanwhile, student loan debt has increased 186 percent.

Debt is so pervasive and central in American society that The Week published an article late last year entitled How the Politics of Debt Explains Everything that described the “underlying political economy” as “a creditor/debtor stand-off where the creditors have the whip hand” and attributed Donald Trump’s ascendency to his “riding debtor anger against creditor strength.”

While strategies to address debt divide us along partisan lines, there is bipartisan recognition that debt–in some form or another–is a problem. Rep. Brian Babin (R-TX) has said: “Would I like to see [the budget] balance? Certainly. Absolutely. I’ve got 13 grandchildren, and I don’t want to see them buried under $30 trillion of debt.” Focusing on individual debt, Sen. Elizabeth Warren (D-MA) has said: “College students today are drowning in debt, and it is hurting them and hurting our economy. We must find a way to help families pay for college without condemning them to a lifetime of indebtedness.”

Debt is a prop of political posturers on both sides of the aisle. But behind the headlines, the green screen and the rhetoric lie important and timely questions. What are the facts about debt and how it affects everyday Americans? What do those facts mean for the lives of the people that our government was elected to serve? And, given those facts, how should policymakers and lawyers craft and interpret laws and policies around debt that advance the vision of an inclusive, just and thriving America?

Those are some of the questions that Harvard Law & Policy Review Volume 11.1 aims to answer. The issue, America in Debt: Borrowers, Creditors, and Forgiveness in the Age of Austerity, which will be released here tomorrow, focuses a progressive lens on the subject of debt, zooming from the micro—the individual, the consumer, the student—to the macro. With authors ranging from a State Attorney General to practitioners, policy analysts and academics, and drawing the expertise of experts who have spent decades working on these problems to data collected by the Consumer Financial Protection Bureau, we have attempted to put together an issue that addresses concerns of everyday Americans.

Harvard Law & Policy Review strives to provide a forum through which academics and practitioners can engage in thoughtful, respectful discourse on the challenges that affect our nation. For this issue, we strove to provide a resource for those in Washington and in the state capitals as they tackle this monstrous challenge. The debt crisis is a problem that impacts everyone living in this country, and we are honored to contribute, in our own small way, to the discourse that will help drive towards sustainable solutions.

 

 

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A Drop in the Ocean of Casualties

By Maseeh Moradi*

The recent immigration executive order promises in its title to protect “the nation from foreign terrorist entry.” It does so by barring the entry of, among hundreds of millions of others, all of my aunts, uncles, and cousins (my own parents, once aliens, now citizens, would have been barred as well). Protecting the nation from terrorists evidently means banning everyone from Iran, even though no national from there, or any of the other listed countries, has committed deadly acts of terrorism in the United States since and including 9/11. The order does not care if one is in poor health, elderly, or requires a full minute to walk from one wall of a room to the other. It thus also bans my 97-year-old grandmother, one of the lights of my life.

My grandmother’s name is Tavoos, which means peafowl in Farsi. It fits well, as she is the most beautiful person I know, possessing a heavenliness that only time can bestow. Her beauty comes from raising seven children in rural Iran’s lower class during the mid-20th century, waking up before dawn to begin her daily 16 hours of backbreaking farming and cooking. It’s the beauty of being in the wrinkled twilight of a full life, one marked by the exultation of seeing a son realize his dreams in America and the endless sorrow of burying a daughter many decades too soon.

Grandma Tavoos has been a widow for a quarter of a century now, and during this period she has visited us regularly, and for six months at a time, on a B2 visa. She loves being here, semi-skipping during her morning walks in our backyard and around the block, and, though not able to speak English, excitedly waving to our neighbors. She is deeply proud of these interactions—when she returns to Iran, she always brags about having met, and exchanged smiles, with those Americans. She enjoys watching the NBA, especially the final two rounds of the playoffs (her favorite player ever is Shaq). Ten years ago, we took her to Santa Cruz for a weekend, and it was a transformative experience; she claims that was the closest she has ever been to heaven. When her stay is over, she always takes back two extra suitcases. One is filled with Americana she will gift to her many grandchildren and great-grandchildren. The other brims with large containers of Heinz Hot & Spicy Ketchup, her favorite flavor, but one that is harder to find in Iran (a perfect meal for her is plain Basmati rice drenched with this condiment).

Grandma Tavoos helped raise and educate me. Seventy-two years her junior, I had much to learn. During elementary and secondary school, I was usually the first one home, and she, along with her pots of bubbling fesenjan and aush-e-reshteh, would be there to greet me and ask about my day. Once, in 7th grade, I came home sobbing after doing poorly on a grammar test. She soothed me, telling me that having weaknesses is something to celebrate as a hallmark of existence; after all, even the most beautiful peafowl still has ugly feet. She is wise like this; she always knew the right Hafez couplet, or the right story from her own childhood, to recite when I needed perspective. She originally taught me to read and write Farsi, crafting daily, one-hour lessons during the summer after I completed 5th grade. During those sessions, she was my teacher, not grandma, and would be hard on me until I mastered the lesson. At the end of the hour, the roles would flip, and I would teach her English. She eventually knew the English words for all of the fruits in our house.

In recent years, her mind has stayed as lucid as ever, but her body has worn down. During this time, we have brought her over primarily to take care of her. We help feed and shower her; she showers us in return with the countless poems, legends, and fables she has written and learned over her lifetime.

But the executive order threatens all of that now. Our current administration thinks allowing her into the country would be too much of a threat. While it’s certainly possible that the Supreme Court will strike the order down, or it will be re-written before then, the order’s effects transcend its text; the damage has been done. How can we risk bringing over a soon-to-be centenarian when our president has shown a propensity to act so callously and capriciously at a moment’s notice? Lately, my grandma ends our phone calls with, “I hope I’ll get to see you again at least one more time.” I use confident words to assuage her, but my quivering voice more faithfully reflects my feelings.

My story is just a drop in the ocean of casualties resulting from this order and the rhetorical posture of this administration; many families are facing the prospect of being ravaged. But no executive order, and no demagogue, can outlaw that which is lodged in our hearts. Grandma Tavoos will always be as close as can be, right there in my heart, her wisdom and beauty an inextricable part of my identity. You can exploit people to your political advantage, conflate them with terrorists, threaten to deport them, bar their entry, and even intern them, but you can never sap their capacity to appreciate and love.

*Maseeh Moradi is a 2L at Harvard Law School and a Senior Online Editor for the Harvard Law & Policy Review.

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Problems of Perception: Unintended Effects of the Immigration Ban on Military Recruitment

By William Denn*

Like many Americans, I was deeply troubled by Hameed Khalid Darweesh’s detention at New York’s JFK airport on January 28th. Darweesh, a former U.S. military interpreter from Iraq, who received a special immigrant visa (SIV) on January 20th, was detained due to the recent travel ban affecting seven Muslim-majority countries. The action bans travel for 90 days and suspends all refugee admission for 120 days. Darweesh, who was later released with help from the ACLU, expressed dismay for his treatment as a criminal despite how many US soldiers he helped.

Darweesh’s story reminded me of the many interpreters I worked with during my own combat tours in Iraq and Afghanistan, interpreters who fought alongside U.S. soldiers at great personal peril. Today, many of these same interpreters are still seeking refuge and are watching closely this debate within the U.S. government.

In the most recent development, on February 3rd, a U.S. District Court in Seattle issued a temporary restraining order that effectively ended the ban nationwide. It can be expected however, that the government will seek to appeal this restraining order, seek to implement new legislation, or issue a more narrowly constrained order. Regardless, the current government infighting leads to a perception that the door may still be shut and could undermine efforts to recruit local assistance on battlefields like in Iraq.

Because of these problems in perception, and their unintended consequences for recruitment, our government should institute immediate exceptions for these interpreters and commit to expanding new SIV efforts to provide sanctuary for interpreters and translators.

Unfortunately, part of the problem is that the sacrifices and acts of heroism of these interpreters have received little publicity. One such story was on November 8th, 2007, when a patrol of about fifteen U.S. soldiers from the 173rd Airborne Brigade was ambushed by the Taliban near the town of Aranas in the Waigul Valley of eastern Afghanistan. During the twenty-hour battle that followed, the patrol sustained ten wounded and five killed, including their platoon leader, First Lieutenant Matthew Ferrara. As the surviving soldiers continued to fight and rescue their comrades, Lieutenant Ferrara’s interpreter, Alex, an Afghan national, picked up Ferrara’s radio to guide in reinforcements and helicopter support. The soldiers’ battalion commander later stated, “Alex’s actions would have earned him a Silver Star if he were a US soldier.”

Despite being owed a debt of gratitude; Alex’s family went into hiding after the Taliban killed three family members, and Alex was unable to secure refugee status to the United States.

The Iraqi Refugee Assistance Project estimates that since 2002, 50,000 Iraqi and Afghan nationals served as US military interpreters. But as the US military presence was eventually reduced, interpreters became more vulnerable targets for revenge. Because of this increased danger and the critical role interpreters played in helping the US military, Congress passed the National Defense Authorization Act of 2008 granting the State Department the power to issue SIVs to Iraqi and Afghan nationals who worked with the US military. The Refugee Crisis in Iraq Act granted up to 25,000 SIVs and the Afghan Allies Protection Act granted 7,500 SIVs. According to the Congressional Research Service, as of early 2016, 15,000 of these SIVs were granted, allowing more than 37,000 interpreters and their family members to receive special immigrant status.

The availability of the SIV program incentivized talented Iraqis and Afghans to work with the United States for the betterment of their countries. But sadly, the SIV program has been plagued by difficulties. Alex, for example, is still in Kabul waiting for his SIV application to be processed. During my interviews with other interpreters in 2014, many complained of a cumbersome application process that lasted years. Applicants frequently had difficulty showing identification documents in a war-torn nation where many did not have birth certificates, licenses or passports.

During the Obama administration, the State Department worked hard to reduce those wait times, but if a refugee ban affects SIV applications, these efforts may now be on hold. Without clear communication from the US government, the perception will remain that the door to the United States is shut despite ongoing efforts to recruit locals to assist U.S. forces battling ISIS. This perception may erode the locals’ trust, sending a signal that the U.S. may not honor its commitment to help those that are willing to help us. Recent reports from Iraq indicate that the debate is already having an effect on morale of Iraqi soldiers.

Our country has a moral obligation to see that these heroes are given sanctuary. By temporarily shutting the door, the government seriously undermines our ability to recruit locals in war zones. Vetting against potential terrorists is important, but not when it means jeopardizing the lives of people like Alex and Darweesh who have already passed the most extreme vetting—having served honorably alongside our military.

Maintaining national security means little if we compromise our moral values and erode our ability to recruit good people in the process. The U.S. government should communicate that it will protect the SIV program during any refugee ban, especially in light of the ongoing conflict in Iraq.

 

*William Denn is a US Army officer with combat tours in Iraq and Afghanistan. He is a graduate of the US Military Academy at West Point, Harvard Kennedy School, and the US Army Command and General Staff College. He has written for the Washington Post, Boston Herald, and academic journals covering national security issues. The views expressed herein are those of the author and not necessarily those of the Department of the Army, the Department of Defense, or any agency of the US government.

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Dismantling the School-to-Prison Pipeline: South Florida’s Approach

By Jeremy Thompson[1]

The U.S. incarceration rate has increased 700% since 1970.[2] As a result, the U.S. has the highest prison population in the world.[3] In the U.S., only 12% of the population is Black.[4] Yet, despite living in a “post-racial,” “colorblind” society,” 38% of the prison population is composed of Blacks.[5] Part of this disparity stems from the disparate impact of zero-tolerance policies in school discipline. These policies were influenced by the fear of the media-driven “Black super predator;” the War on Drugs; three strikes laws; and school shootings.[6] Similar to police officers’ implicit biases in the justice system, the implicit biases of teachers in schools is a primary reason why Black students are suspended and arrested at a rate two times greater than White students for the same offenses.[7] The disparate impact of zero-tolerance policies has created a pipeline from school to prison. Suspension, expulsion, and arrest are often the first steps in a chain of events that lead to academic disengagement and delinquency.[8] This phenomenon is recognized as the “School-to-Prison Pipeline,” which is a collection of punitive laws, policies, and practices that push young people, particularly Black students, out of school and into the justice system.[9]

Over the past several years, several school districts in the U.S. have had positive outcomes as a result of replacing zero-tolerance policies with restorative justice policies. After eliminating zero-tolerance policies for petty acts and misdemeanors and adopting restorative justice policies, Broward County Public School District (“Broward County”), the sixth largest school district in the U.S., and Miami-Dade County Public School District (“Miami-Dade”), the fourth largest school district in the U.S., dramatically increased graduation rates and decreased arrests and suspensions.[10] Both school districts are models for school districts wishing to eliminate the School-to-Prison Pipeline.

In 2009, Florida amended its zero-tolerance statute, which gave school districts the option of softening its zero-tolerance policies for petty acts of misconduct and misdemeanors.[11] As a result, Broward County and Miami-Dade decided to adopt restorative justice disciplinary policies for petty acts of misconduct and misdemeanors. Broward County created the Preventing Recidivism through Opportunities, Mentoring, Interventions, Supports, and Education Program (“PROMISE”).[12] Promise is an alternative to a suspension program.[13] Promise is one part of a collaborative agreement between the Seventeenth Judicial Circuit; Broward County’s Public Defender’s Office, Sheriff’s Office and Prosecutor’s Office; the NAACP; the Florida Department of Juvenile Justice; the Juvenile Justice Advisory Board; and the Fort Lauderdale Police Department.[14] Promise’s goal is to prevent students from entering the justice system. Instead of school suspensions or arrests for incidents such as theft, trespassing, drug possession, or disorderly conduct, students are sent to a designated education center where they receive counseling, behavioral services, and the opportunity to make-up school work.[15] Students leaving Promise return to school with a success plan. 90% of students who complete Promise do not reoffend.[16] Since its implementation in 2013, Broward County’s arrest rates decreased from 909 in the 2012-13 school year to 469 in 2014-15 school year.[17] Additionally, since 2009, Broward County’s graduation rate has increased by 3%. For the 2015-16 school year, more than 79% of Broward County students graduated.[18]

Miami-Dade also changed its disciplinary policies. Miami-Dade implemented a behavior support system into its student code of conduct.[19] This system uses data to identify students’ needs and monitors students’ progress. This system requires teachers and school officials to use restorative measures before referring students for arrest, suspension, or expulsion.[20] In 2014, Miami-Dade also created “Success Centers.”[21] Success Centers are establishments that suspended students are required to attend. In the Success Centers, students receive therapy and are also required to complete schoolwork. Since 2009, Miami-Dade reduced school related arrests by 69%.[22] Since 2005, Miami-Dade decreased outdoor suspensions by 44%. Thanks to these changes, in the 2015-16 school year, more than 80% of Miami-Dade students graduated (Miami-Dade’s highest graduation rate ever).[23]

The success that Miami-Dade and Broward County have experienced demonstrates that school districts can implement policies to eliminate the School-to-Prison Pipeline. School districts should focus on creating policies that limit the implicit biases schoolteachers have and on establishing programs that can help students. The statistics show that restorative justice policies decrease arrest rates and increase graduation rates. By adopting programs similar to Miami-Dade and Broward County, other school districts can help eliminate the School-to-Prison Pipeline and decrease the disparate incarceration rates in the U.S.

 

 

            [1] Jeremy Thompson recently graduated from Florida International University (“FIU”) College of Law in 2016. At FIU, Jeremy served as the National Black Law Students Association’s Director of Education and Career Development. He is now an Honors Attorney at the U.S. Department of Justice, Executive Office For Immigration Review. Jeremy is also an adjunct at Nova Southeastern University Shepard Broad College of Law.

            [2] ACLU, Overcrowding and Overuse of Imprisonment in the United States, Submission to the Office of the High Commission for Human Rights, http://www.ohchr.org/Documents/Issues/RuleOfLaw/OverIncarceration/ACLU.pdf (last visited January 28, 2017).

            [3] Id.

            [4] Eric Kayne, Census: White majority in U.S. gone by 2043, U.S. News, https://usnews.newsvine.com/_news/2013/06/13/18934111-census-white-majority-in-us-gone-by-2043 (last visited December 23, 2016).

            [5] E. Ann Carson, Ph.D, Prisoners in 2013, U.S. Department of Justice Bulletin, (https://www.bjs.gov/content/pub/pdf/p13.pdf).

            [6] Jeremy Thompson, Eliminating Zero-Tolerance Policies in Schools: Miami-Dade Public School’s approach, 2016 BYU Educ. & L.J. 325, 331 (2016).

            [7] Id. at 330, 333.

            [8] Id. at 333.

            [9] Id. at 331.

            [10] Caitlin R. McGlade, Graduation rates are up in Palm Beach, Miami-Dade and Broward, Sun Sentinel, http://www.sun-sentinel.com/news/education/fl-graduation-rates-20161219-story.html (last visited December 23, 2016); David Smiley and Michael Vasquez, Broward, Miami-Dade work to close the ‘school-to-prison pipeline’, Miami Herald, http://www.miamiherald.com/news/local/community/miami-dade/article1957319.html (last visited January 28, 2017).

            [11] Fla. Stat. § 1006.13 (amended 2009). Fla. Stat. § 1006.13 (2006) http://archive.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch1006/SEC13.HTM&Title=-%3E2006-%3ECh1006-%3ESection%2013#1006.13 (last visited Dec. 23, 2016).

            [12] Sammy Mack, Interview: Rethinking Zero Tolerance Discipline Policies In Florida Public Schools, State Impact, https://stateimpact.npr.org/florida/2014/01/26/interview-rethinking-zero-tolerance-discipline-policies-in-florida-public-schools (last visited December 23, 2016).

            [13] Robert W. Runcie, Eliminating the School-to-Prison Pipeline, http://www.browardprevention.org/wp-content/uploads/sites/89/2016/07/SY-2016-Eliminating-School-to-Prison-Pipeline.pdf (last visited December 23, 2016).

            [14] Id.

            [15] Id.

            [16]Christina Veiga, As school year starts, Miami-Dade rolls our new approach to student discipline, Miami Herald, http://www.miamiherald.com/news/local/education/article31934748.html (last visited January 28, 2017).

            [17] Runcie, supra note 13.

            [18] McGlade, supra note 10.

            [19] Thompson, supra note 6, at 343.

            [20] Id.

            [21] Marsha Halper, Troubled Miami-Dade students finding success amid suspensions, Miami Herald, http://www.miamiherald.com/news/local/education/article36755190.html (last visited December 23, 2016).

            [22] Thompson, supra note 6, at 346.

            [23] McGlade, supra note 10.

Disclaimer: the views, thoughts, and opinions expressed in the text belong solely to the author, and not necessarily to the author’s employers.

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Automatic Voter Registration: A Rational Solution to an Irrational Problem

By David Howard*

Automatic Voter Registration

Voting “is a fundamental matter in a free and democratic society . . . . [because it] is preservative of other basic civil and political rights.”[1]   But before one can vote, that person must first register with the state, often weeks before the election. Voter registration continues to be a contentious issue in the United States, and the current system in many states presents significantly more problems than solutions.

Article I, Section 4 of the Constitution gives the states substantial authority over electoral procedures. As a result, the states have implemented a wide array of varying electoral procedures, making a person’s voting rights depend—to a significant degree—on their state of residence.[2] In the past two years, Oregon, California, Vermont, West Virginia, Connecticut, and Alaska have all passed some version of automatic voter registration, [3] while Illinois and New Jersey rejected similar bills in their state legislatures. And there are still many states with antiquated voter registration processes, some of which were specifically designed for the purpose of disenfranchisement.

At one time, voter registration was relatively “straightforward: it would help to eliminate fraud and also bring an end to disruptive election-day conflicts at the polls.”[4] Today, some claim voter registration is still necessary, arguing the current lax standards “breeds mistrust and can call the integrity of the whole system into question.”[5] This—arguably pretextual—focus on voter fraud filled the airwaves throughout the weeks leading up to the presidential election, and it continues to attract attention, even though the existence of widespread voter fraud has been repeatedly discredited.[6] In fact, there was virtually no evidence of voter fraud this election, except for a women in Iowa voting twice in person for Donald Trump, ironically because she believed the vote was “rigged.”[7] Professor Lorraine Minnite put it best: “The claim that voter fraud threatens the integrity of the American election is itself a fraud.”[8]

Some legal scholars have gone so far as to suggest that allegations of “voter fraud [are] used as a pretext for a broader agenda to disenfranchise Americans and rig elections.”[9] For example, the Voter Registrar for Harris County, Texas has in the past deployed resources to purge the voter rolls of people who are believed to be deceased or have not voted in several elections, yet many of these people were actually still alive.[10] There have even been numerous allegations of voter intimidation in Texas, including attempts to prevent voters from registering.[11]

In sum, there continues to be substantial voter suppression—and negligible voter fraud—in many states. This purposeful suppression of the fundamental right to vote is simply un-American, and states should uniformly adopt automatic voter registration to correct this deeply anti-democratic trend.

Why Should All States Adopt this Process?

On Election Day, many Americans either cannot vote because they were unable to register within the required time, or they find their names wrongfully deleted from the voter rolls.[12] The best way to prevent any claim of “voter fraud” and to prevent further barriers to voting is to have the state register eligible voters itself, by passing automatic voter registration reform in each state. Rather than using extensive regulatory efforts and trying to prevent alleged fraudulent voter registration through third parties, states should register every eligible citizen to vote. This process would decrease the chance of third parties affecting the voter registration system while allowing the voter registration system to actually work the way it was intended.[13]

According to the Pew Center on the States: (1) one in four eligible citizens is not registered to vote; (2) one in eight voter registrations in the United States is invalid or significantly inaccurate; and (3) one in four voters wrongly believes their voter registration is automatically updated when they change their address with the Postal Service.[14] This alone causes extensive problems in our electoral system, as eligible voters must register to vote before even casting a ballot.

Another practical reason for adopting automatic voter registration—one many states should appreciate—follows from the costs of voter registration reformation. Before the automatic voter registration reform in Oregon, a Pew Center study found Oregon’s previous paper-based voter registration system cost the state $7.67 per registration transaction or $4.11 per registered voter in 2008. In contrast, Canada uses modern electronic methods to register voters and spends only 35 cents per voter.[15] Not only would automatic voter and online registration increase access to the fundamental right to vote, but it would also save states a significant sum of money.

How Would Automatic Voter Registration Work?

There is a relatively simple solution that would allow virtually all eligible voters to cast a ballot while maintaining the integrity and accuracy of the voting system: the states must take responsibility for registering every eligible voter. Anytime a citizen came into contact with a state governmental agency, they would be automatically registered through that government agency, and valid voter registration—like citizenship—would eventually become more of an assumption than an aspiration. Automatic voter registration would create two institutional changes to voter registration: (1) eligible citizens would be registered to vote when contacting any government agency unless that person specifically declines, and (2) those departmental agencies would provide the voter-registration information electronically to state election officials. The Brennan Center for Justice at N.Y.U. argues convincingly that this reformation would “boost registration rates, clean up the rolls, save money, make voting more convenient, and reduce the potential for voter fraud.”[16] All while protecting the fundamental right—and civic duty—of every American citizen to vote.

As stated above, Oregon, California, Vermont, West Virginia, Connecticut, and Alaska have already passed some version of automatic voter registration, and similar reforms are being proposed in other states with increasing momentum.[17] In California, West Virginia, and Vermont, individuals are registered to vote when they appear at a state agency, and they are given the opportunity to decline registration when in contact with the state’s motor vehicle agency. In Oregon, the election agency mails the eligible voter a registration-notification card after their contact with the state motor vehicle agency, and the voter is assigned a “pending” status for 21 days, during which they have the opportunity to decline registration, and if they do nothing, they are automatically registered to vote.[18] Legislatures in both Illinois and New Jersey passed this voting reform, but Governors Rauner and Christie vetoed these bills. There have been several national bills proposed in Congress, and a list of the bills introduced has been compiled by the Brennan Center for Justice.[19]

Conclusion

Automatic voter registration will prevent the disenfranchisement of millions of eligible voters, while continuing to protect the integrity of, and trust in, the voting system. Simply put, the states need to take responsibility for registering all eligible voters, by having a state agency transfer all necessary voter registration information to the state’s election agency when a citizen comes in contact with a state agency. All states must pass this type of voter registration reform if our electoral system is to maintain its integrity, because preventing millions of eligible voters from casting a ballot on the baseless claims of preventing alleged voter fraud does tremendous and irreparable harm to the integrity of our country’s elections. This reform would be an important first step towards increasing voter participation in elections, and it will create more accurate voter rolls, reduce the costs on the states, and protect election integrity. It is a simple solution to a complex problem, and one that is desperately needed today.

 

*David is a 3L at the University of Texas School of Law.

[1] Reynolds v. Sims, 377 U.S. 533, 561-62 (1964).

[2] Brooke Lierman, Election Day Registration: Giving All Americans A Fair Chance to Vote, 2 Harv. L. & Pol’y Rev. 173 (2008).

[3] Automatic Voter Registration, Nat. Con. of State Leg. (Nov. 29, 2016), http://www.ncsl.org/research/elections-and-campaigns/automatic-voter-registration.aspx.

[4] Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States 152.

[5] John Fund, Stealing Elections: How Voter Fraud Threatens our Democracy 25 (2004).

[6] See, e.g., Sami Edge, No, voter fraud actually isn’t a persistent problem, Wash. Post (Sept. 1, 2016), https://www.washingtonpost.com/news/post-nation/wp/2016/09/01/voter-fraud-is-not-a-persistent-problem/?utm_term=.42b194533f8c; Associated Press, Studies Contradict Trump Claim That Voter Fraud Is ‘Very, Very Common’, Fortune (Oct. 18, 2016), http://fortune.com/2016/10/18/studies-contradict-trump-claim-that-voter-fraud-is-very-very-common/.

[7] Amy Wang, Trump Supporter Charged with Voting Twice in Iowa, Wash. Post (Oct. 29, 2016, 10:50 AM),

[8] Lorraine C. Minnite, The Politics of Voter Fraud 5 (2007), www.projectvote.org/wp-content/uploads/sites/89/2007/03/Politics_of_Voter_Fraud_Final.pdf.

[9] David Schultz, Less than Fundamental: The Myth of Voter Fraud and the Coming of the Second Great Disenfranchisement, 34 Wm. Mitchell L. Rev. 483, 486 (2008).

[10] Wade Goodwyn, Many Texans Bereaved Over ‘Dead’ Voter Purge, NPR (Sep. 16, 2012), http://www.npr.org/2012/09/16/161145248/many-texans-bereaved-over-dead-voter-purge; Cindy George, Dispute over ‘dead’ voters in Harris County is finally resolved, Houston Chron (Sep. 20, 2012), http://www.chron.com/news/houston-texas/article/Dispute-resolved-over-dead-voter-issue-3879081.php; Lise Olsen, Texas’ voter purge made repeated errors, Houst. Chron. (Nov. 2, 2012), http://www.chron.com/news/politics/article/Texas-voter-purge-made-repeated-errors-4001767.php.

[11] Dale Ho, The Voter Fraud We Can’t Shake, N.Y. Times (Nov. 3, 2016), http://www.nytimes.com/2016/11/04/opinion/the-strange-career-of-the-voter-fraud-myth.html.

[12] See Lise Olsen, Texas’ Voter Purge Made Repeated Errors, Hous. Chron. (Nov. 1, 2012), http://www.chron.com/news/politics/article/Texas-voter-purge-made-repeated-errors-4001767.php; Greg Palast, The GOP’s Stealth War Against Voters, Rolling Stone (Aug. 24, 2016), http://www.rollingstone.com/politics/features/the-gops-stealth-war-against-voters-w435890.

[13] See Spencer Overton, Stealing Democracy: The New Politics of Voter Suppression 166 (2006).

[14] Pew Center on the States, Inaccurate, Costly, and Inefficient: Evidence that America’s Voter Registration System Needs an Upgrade 4-5 (2012), http://www.pewtrusts.org/~/media/legacy/uploadedfiles/pcs_assets/2012/PewUpgradingVoterRegistrationpdf.pdf.

[15] Brennan Center for Justice, The Case for Automatic Voter Registration 5 (2016), https://www.brennancenter.org/sites/default/files/publications/Case_for_Automatic_Voter_Registration.pdf.

[16]Automatic Voter Registration, Brennan Center for Justice (Sept. 22, 2016), https://www.brennancenter.org/analysis/automatic-voter-registration.

[17] Automatic Voter Registration, Nat. Con. of State Leg. (Nov. 29, 2016), http://www.ncsl.org/research/elections-and-campaigns/automatic-voter-registration.aspx.

[18] Id.

[19] For the list of bills introduced, see https://www.brennancenter.org/analysis/automatic-voter-registration.