Thursday, January 20, 2022

046 The Erickson Report for January 20 to February 2, Page 4: Free Speech for Me

046 The Erickson Report for January 20 to February 2, Page 4: Free Speech for Me

I've got just a couple of minutes so I'm going to wrap up with this:

On January 14, the Supreme Court agreed to hear an appeal from a high school football coach in Bremerton, Washington, who lost his job after defying school administrators by kneeling and praying at the 50-yard line after his team’s games.

The coach says the actions of school board violated his rights to free speech and free exercise of religion. The officials responded that the school was entitled to require that its employees refrain from public prayer to avoid the First Amendment’s prohibition of government establishment of religion.

When the Supreme Court declined to hear an earlier appeal in the case in 2019, four justices - Alito, Gorsuch, Kavanaugh, and Thomas - issued a statement questioning a preliminary ruling in favor of the officials from the Ninth Circuit Court of Appeals, saying that court's "understanding of the free speech rights of public-school teachers is troubling and may justify review in the future.”

And now that future has come.

The coach "led the team in prayer in the locker room before each game, and some players began to join him for his postgame prayer, too, where his practice ultimately evolved to include full-blown religious speeches to, and prayers with, players from both teams after the game, conducted while the players were still on the field and while fans remained in the stands." In other words, he clearly was on the clock.

But that didn't matter to the dissenters at the Ninth Circuit, one of who wrote “It is axiomatic that teachers do not shed their First Amendment protections at the schoolhouse gate. Yet the opinion in this case obliterates such constitutional protections by announcing a new rule that any speech by a public-school teacher or coach, while on the clock and in earshot of others, is subject to plenary control by the government.”

But what really mattered to that judge, as it surely will to the sanctimonious six at SCOTUS, is that the speech involved was Christian prayer. I have no doubt that this case will ultimately come out in the coach's favor and the right wing will celebrate madly, after which I will await the occasion watching with bitter amusement the rapid shuffling of papers and redefinitions of meanings when some public school teacher gets into trouble for hurting the fee-fees of some white kinds by discussing in class white privilege or present-day racism and then says it's their freedom of speech so nyah nyah can't touch me.

The case is Kennedy v. Bremerton School District.

One last last thing: Kelly Shackelford, the president of First Liberty Institute, which represents the coach, said in a statement “By taking this case, the Supreme Court can protect the right of every American to engage in private religious expression, including praying in public, without fear of punishment.”

Protect the private expression of public prayer. For his next trick, Kelly Shackelford will square a circle.

046 The Erickson Report for January 20 to February 2, Page 3: The Threat to Voting Rights

046 The Erickson Report for January 20 to February 2, Page 3: The Threat to Voting Rights

Okay, this is our first installment of what promises to be a long series, one my intent is to have as part of every or at least most every show. It's called The Threat.

To start, I want to lay out what I mean by the term and the sort of things this series will cover. We are faced with a wide variety of internal threats to our functioning as a free society driven by the reactionary - which these days pretty much means the entire - right sometimes in pursuit of power and sometimes in a pathetic but still damaging effort to keep the future from happening.

There are for example the threats to our ability to vote coupled with moves to turn election administration and vote counting into a partisan enterprise.

There are the attacks on the right to abortion and on the rights and dignity of LGBTQ+, now particularly transgender, people.

There are attacks on First Amendment rights relating to press, speech, and assembly.

Threats to our personal privacy, those coming as much from corporations as government.

Basic social services, particularly right now public education, are under attack.

And of course, there is the very major overlying, existential threat of climate change.

The idea is that every show I will address and cover some news and commentary relating to one or more such issues. This time, as you might have been expecting, it the threats to our right to vote.

We start by noting that a new analysis by the Brennan Center for Justice finds that GOPper state legislatures are showing no signs of slowing down what the report calls the "tidal wave of restrictive voting legislation" that we saw in 2021.

That tsunami of bills involved 49 states seeing a total of 440 proposed laws restricting the right to vote introduced between January 1 and December 7. Nineteen states passed 34 such laws, more than in any year since the Brennan Center began tracking such laws in 2011.

The group's analysis pointed to several categories of anti-voting restrictions, including restricting access to voting by mail, new or expanded voter ID requirements, the criminalization of "ordinary, lawful behavior by election officials" who try to help voters, and laws allowing voter purges.

It also highlighted what the Center called "a new trend" in which "legislators introduced bills to allow partisan actors to interfere with election processes or even reject election results entirely." That surely will continue in 2022: In at least five states, six bills that have been pre-filed aim to establish "illegitimate partisan review boards of election results." Pre-filed means they are already on record to be introduced in the 2022 legislative session. Revealingly of the actual intention here assuming it wasn't already obvious, four of those six focus on continuing reviews of the 2020 election results.

And all of this in the name of "election integrity" despite zero states having found any evidence of any level of voter fraud worth mentioning.

A big target of the attacks has been mail-in voting and there is every reason to expect that will continue in 2022. There are dozens of carryover bills, ones carried over from the 2021 session to this year's, that focus on restricting access to mail-in voting, ranging from shortening deadlines for applying for and delivering mail ballots to imposing criminal penalties for election officials who mail out unsolicited ballots or even for individuals who assist voters - including people with disabilities - with returning mail ballots.

In addition, there are at least 74 pre-filed bills assailing voting rights in various ways, at least seven of which specifically target voting by mail, including among others eliminating reasons that justified voting by mail and expanding the grounds on which a submitted absentee ballot can be rejected.

These efforts are already seeing results. Texas has one of the harshest laws attacking voting rights, one which among other provisions tightens the requirements for requesting an absentee ballot. Those are already hard to get in Texas, available to only a handful of categories, including residents 65 years and older, disabled residents, or voters who will be absent from their county during the entire period of early voting plus Election Day.

But one of the new demands is that the person making the request supply either their driver's license number or the last four digits of their Social Security number, which must match the number they supplied when they registered. Which not only means a single-digit mistake could get your request denied, voters often face what Travis County clerk Dana DeBeauvoir called "a guessing game" because they can't recall which number they used to register in some cases decades earlier and there is no easy way to find out.

The result has been that Travis County officials said they have rejected around half of the requests for vote-by-mail applications they have received. Harris County has rejected over a quarter, Bexar County nearly the same.

Note that the primary is in March, leaving little time for a voter to determine what the error is and correct it.

By the way, some other new restrictions in Texas are barring residents from obtaining applications for other people, including relatives and spouses; making it harder for voters with disabilities or language access barriers to get help; constraining election workers’ ability to stop harassment or intimidation of voters by partisan poll watchers; and banning 24-hour and drive-thru voting.

Meanwhile, there also has been action in the courts on related matters.

In December, the NAACP and other civil rights groups filed suit in federal court, looking to overturn South Carolina's new and gerrymandered map of its state legislative districts. They charge that the map was created "in a flawed and nontransparent process" with the deliberate intent of disempowering Black voters and solidifying GOPper control of the state legislature.

The map used a mixture of "packing," the practice of placing people of color in the same district in order to prevent them from having greater political power in surrounding districts, and "cracking," the splitting of communities of color to dilute their power in a given district. The idea is to find the mixture that leaves Black South Carolinians with as little power as possible.

A similar story is playing out regarding Georgia, where voting rights groups and Georgia voters sued in federal court early in January charging that three of the districts in the state's newly drawn congressional map were packed and cracked to intentionally deny Black communities in Georgia fair representation and so are unconstitutional.

There was bad news out of North Carolina, where on January 11 a three-judge Superior Court panel ruled that Republicans' newly drawn political districts, which will give GOPpers an edge in future elections, do not violate the state's constitution - despite finding that the proposed districts were obviously drawn with and had heavy partisan advantage. As too often happens, the judges threw up their hands and declared that "redistricting is an inherently political process" that does "not impinge on the right to vote." Perhaps not in a narrow legalistic sense, but it surely impinges on the right to fair representation, which is after all what voting is all about.

On the other hand, some of the news is even good, as there was a double victory in Ohio.

On January 12, the Ohio Supreme Court threw out GOPper-drawn state legislative district maps. A majority of the justices found the map violated the state constitution because failed to "draw legislative districts that correspond with the statewide voter preference of Ohioans." That is, they were gerrymandered for partisan advantage.

Then just two days later, that same court also struck down the new GOPper-drawn map of congressional districts on the same basis.

The decision called the map "infused with undue partisan bias" which "perhaps explains," the ruling went on, "how a party that generally musters no more than 55% of the statewide popular vote is positioned to reliably win anywhere from 75% to 80% of the seats in the Ohio congressional delegation. By any rational measure, that skewed result just does not add up."

The advantage that voting rights advocates had here is that in 2018, Ohio voters overwhelmingly - by 75-25 - approved an amendment to the state constitution intended to limit as much as possible partisanship in redistricting, so the "it's all political" dodge wasn't available to the court and it was clear what voters wanted done.

Finally on this wrap for this time, a warning: There is a "bipartisan" proposal - assuming we can regard agreement of Fishface McConnell and Joe Maniac as being "bipartisan" - proposal to reform the 1887 Electoral Count Act. This is the one that despite have functioned just fine for 35 presidential elections still had sufficient vagueness to be the basis for the claims that Mike NotWorthAFarthing could overturn the vote of the Electoral College or throw that vote to the House.

So there is the idea of reforming it so we don't risk facing in 2024 what we could have faced in 2020.

Which is fine but beware of conservatives bearing compromises. Because there is also a fear that such a reform would be presented as a substitute for election law reform rather than an addition to it. That is, that the anti-voter faction in Congress would agree to this and then say "Okay, we've dealt with election law reform. Let's move on." We can't let that happen.

046 The Erickson Report for January 20 to February 2, Page 2: The Death Penalty and Criminal Justice

046 The Erickson Report for January 20 to February 2, Page 2: The Death Penalty and Criminal Justice

Okay, I'm going to put this in here.

On December 9, Bigler Stouffer II, 79, was executed for murder at the State Penitentiary in McAlester, OK. He had been convicted of the 1985 shooting death of one Linda Reaves, an incident that also left her boyfriend, Doug Ivens, seriously injured.

He originally was convicted in 1986 and sentenced to death but the verdict was oveturned on the grounds he had been provided an inadequate defense. He was re-convicted in 2003, meaning he spent the last 35 years of his life on death row.

Without going into details of competing assertions, I'll note that to the very end, to the moment he entered the death chamber, Stouffer maintained his innocence. As recently as a hearing before the Pardon and Parole Board in November, he insisted that Ivens was shot as the two men fought over a gun at Ivens' home, and that Reaves was already dead when he arrived.

That board recommended that Stouffer's sentence be commuted to life without parole, but Gov. Kevin Stitt rejected the idea, not surprising since attorneys for the state opposed clemency, saying that Stouffer's "heinous actions, his lies and manipulations, and his complete lack of sorrow and remorse for the hurt he caused should dictate one conclusion - the jury's death sentence must be carried out."

That last part is why I bring this up. A gaping hole at the center of our supposed criminal justice system reveals it to be in reality a prosecution procedure system, one where truth is not pursued, it is created, something most markedly obvious in death penalty cases, where the notion of "finality" takes on a lethal meaning.

If you are convicted at trial, that becomes not our best societal judgement of the reality of the events involved, it becomes revealed truth, holy writ, and this "finding of fact," whether by judge or jury, can't be challenged on appeal except under special limited circumstances; only the legal technicalities in reaching it can be. Not only must the courts accept your guilt as utter truth, so must you to the point where absolute proof of your innocence of the crime may not save you unless that proof could not have been presented at trial - not was not, could not.

In fact, just last month the state of Arizona told the Supreme Court in oral arguments related to the case Shinn v. Ramirez that “innocence isn’t enough here" to allow two men to challenge their convictions in federal court - and they were in fact preaching to the choir, because SCOTUS has in the past said essentially the same thing.

As so we have Bigler Stouffer, who frankly may or may not have been guilty, I don't know, but who in either event encountered the fact, as so many others have, that continuing to insist on your innocence after conviction will be used as a weapon against you in seeking any sort of mercy or understanding or justice.

Because the system will admit "we did it wrong," but will - pardon the expression - fight to the death to avoid saying "We got it wrong."

The death penalty should disappear.

046 The Erickson Report for January 20 to February 2, Page 1: Good News

We are going to start with some bits of Good News from over the past couple of weeks.

First up, this is just feel-good news.

The Cyber Ninjas, the outfit which faced months of criticism over its shoddy practices and partisan roots in conducting that lie-driven "audit" of the 2020 presidential count in Arizona which despite it all still concluded that Biden won the state, is closing down.

This follows a rebuttal from officials in Maricopa County, the target of the fraudulent recount, who asserted that of the 77 claims the Cyber Ninjas made about the balloting, 76 were false or misleading along with a county judge holding the company in contempt and ordering it to pay $50,000 per day in sanctions for failing to provide records related to the so-called audit to the Arizona Republic newspaper.

Karma can be a bitch.


Next, a bit of Good News out of the UK.

On October 17, 2019, three members of Christian Climate Action, an arm of Extinction Rebellion, blocked a train in London for over an hour during morning rush hour. The train was headed into the city's financial district, and the group said the protest was to symbolize how business-as-usual must be stopped and was a proportionate response to the existential threat of climate change.

The three - Reverend Sue Parfitt, 79; Father Martin Newell, 54; and former university lecturer Phil Kingston, 85 - were charged with violating the Malicious Damages Act, carrying a potential sentence of, if I read the Act correctly, two years in prison.

On January 14, the were acquitted by a jury.

What's more, on the same day, Extinction Rebellion (or XR) protester James Brown had his sentence cut from 12 months to four after super-gluing himself to the roof of a plane at London City Airport and those events followed the December acquittal six of XR members who were charged with the blocking a train during a similar action at Canary Wharf station in April 2019; that jury took less than an hour.

It appears that the people, if not the government, of the UK are coming to see the climate crisis for what it is.


Next: Anti-hunger and anti-war activists in Florida have won their seven-year legal battle against the city of Fort Lauderdale, which has been trying to prevent the local chapter of Food Not Bombs from giving free food to people in need at a downtown park.

Last August, a three-judge panel of the US Court of Appeals for the 11th District ruled unanimously that the rule "unconstitutional as applied to Food Not Bombs" and the city's requirement for a permit - which could cost up to $6000 - can't qualify as a "valid regulation" of Food Not Bombs' First Amendment rights because it is "utterly standardless," that is, it could be denied for literally any reason or no reason at all.

On January 5, the group announced a settlement with the city, under which the city admits it was wrong, pays the group a small amount of damages, and covers at least some significant part, if not all, of the group's legal expenses.

The reason Fort Lauderdale and other cities have tried and are trying to impose bans like these comes down to one issue: wanting to hide the issue of homelessness because that seems easier and cheaper than doing anything about it.


Another: Last March, Texas Gov. Greg Abattoir launched Operation Lone Star, deploying thousands of National Guardsmen, Texas Department of Public Safety cops, and other state resources to the border with Mexico and giving them the authority to arrest suspected migrants under suspicion of criminal trespassing on private and state property.

One such person arrested is Jesús Alberto Guzmán Curipoma, an engineer from Ecuador who hoped to submit a request for asylum. He was arrested in September at a railroad switching yard on a charge of criminal trespass.

On January 13, Travis County Judge Jan Soifer declared his arrest unconstitutional, making some immigration advocates hopeful the ruling could create a pathway for other migrants arrested under the program.

Guzmán Curipoma's attorneys successfully argued that Operation Lone Star violates the Supremacy Clause of the US Constitution and therefore prohibits state laws form interfering with immigration enforcement by the federal government.

What makes this remarkable is that the Travis County District Attorney's Office, which represented the state in the hearing, agreed. Travis County District Attorney José Garza said in a statement that the program is "an impermissible attempt to intrude on federal immigration policy" and "has failed to satisfy basic, fundamental, and procedural state and federal constitutional safeguards."

A spokesperson for Gov. Abattoir said they expect the ruling will be overturned because the judge couldn't issue that ruling without hearing from the Attorney General. Which seems doubly weird because I was not aware a judge had to check with Abattoir's administration before issuing a ruling and how are they going to appeal when there was someone representing the state of Texas at the hearing who agreed with the decision. But that kind of thing never stopped them before, so who knows.

It's still a win.


Next, something I don't know I can truly call Good News for reasons I will try to make clear, but the news here is that Greg and Travis McMichael, two of the men convicted in the murder of Ahmaud Arbery, have been sentenced to life without parole and the third, William "Roddie" Bryan, to life with parole possible after 30 years.

I take satisfaction in the fact that this is an indication that maybe, at long last, we as a people are taking racist murder more seriously. Still, I can't be entirely happy about this because of my conviction that our so-called criminal justice system is deeply screwed up.

Which brings me to something that is definitely good News.

Early this month, Manhattan District Attorney Alvin Bragg announced sweeping changes to the borough’s criminal justice system. Among other changes, he said prosecutors should no longer seek prison sentences of more than 20 years except in exceptional circumstances and urged them to only pursue prison for the most serious offenses, looking instead to "diversion and alternatives to incarceration." The idea is to shift away from pursuing lesser crimes like marijuana misdemeanors, prostitution, and fare evasion to focus more on violent crime including guns and domestic violence.

The Sentencing Project applauded the changes, noting it has previously recommended a 20-year cap on prison sentences and noting that "Virtually no other nation in the world routinely pursues extreme sentences beyond 20 years. The United States is a clear and appalling outlier."

But of course Bragg faces extreme vituperation from the usual suspects, including right-wing grifters going on about "bloodbaths"and cops, including city Police Commissioner Keechant Sewell, who sent an email to every member of the NYPD saying "I am very concerned about the implications to your safety" - or, in other words, "Look out, he's gonna get you killed." Although I strongly suspect she's more fearful for the impact on her department's budget than any on the safety of cops.

It remains to be see how strong Bragg can be in the face if the vicious reactions, ones he surely should have seen coming, but at the very least a marker has been laid down: This can be a notion of what "defund the police" can look like in practice. And that is decidedly Good News.

046 The Erickson Report for January 20 to February 2


046 The Erickson Report for January 20 to February 2

Good News
- Cyber Ninjas closing
- Climate protesters acquitted
- Group wins fight to feed hungry
- Migrant arrest unconstitutional
- Police reform in NYC

The Death Penalty and Criminal Justice

The Threat to Voting Rights

Free Speech for Me

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