Archive for January, 2022

North Carolina And Ohio: Worlds Apart

Friday, January 14th, 2022

Law requires all the states to redraw their state and congressional districts in the year following the decennial census of the country. Once they do that their legislatures approve the new maps, and the maps become enacted law. Then the lawsuits begin.

Yesterday, I wrote about a State Court Panel of the North Carolina Superior Court’s decision, rendered on Tuesday of this week, to uphold that state’s recently enacted election redistricting maps, maps the Court strongly affirmed were examples of extreme partisan gerrymandering in every respect in every district. Why? Because the Court said history had shown that’s the way the legislature and the state’s electorate wanted it regardless of which Party was in power.

It’s about 480 miles from Raleigh, capitol of North Carolina, to Columbus, capitol of Ohio. But from yesterday’s ruling on the same subject by the Ohio Supreme Court, you’d think they were on separate planets.

The three signers of the North Carolina decision are Republicans, and in the Ohio Supreme Court there is also a Republican majority. But on a 4-3 vote, with Chief Justice Maureen O’Connor, a Republican, siding with the three Democratic Justices, the Court invalidated the GOP’s recently-drawn legislative maps.

The Ohio Constitution requires mapmakers to attempt to match the statewide voting preferences of voters over the past decade. That amounts to 54% for Republican candidates and 46% for Democratic candidates. According to the decision, “The commission is required to attempt to draw a plan in which the statewide proportion of Republican-leaning districts to Democratic-leaning districts closely corresponds to those percentages.” The Court ruled that did not happen. What did happen was extreme partisan gerrymandering.

Until November 2015, Article XI of Ohio’s constitution specifically allowed, and the Court upheld, partisan gerrymandering. However, in that year Ohio voters overwhelmingly approved an amendment to the constitution repealing Article XI and replacing it with a new version, which established a new process for creating General Assembly districts. The amendment provided for the creation of a seven-member Ohio Redistricting Commission, composed of elected officials, such as the Governor and other legislative leaders. The Ohio Redistricting Commission that drew up the new maps under dispute consisted of five Republicans and two Democrats.

The Ohio commission is responsible for redistricting the boundaries of the 99 districts of the House of Representatives and the 33 Senate districts in the year immediately following the release of the federal decennial census. This is the same procedure followed in North Carolina and in every other state. However, Section 6 of Ohio’s new Article XI mandates: “No general assembly district plan shall be drawn primarily to favor or disfavor a political party.” Further, “The statewide proportion of districts whose voters, based on statewide state and federal partisan general election results during the last ten years, favor each political party shall correspond closely to the statewide preferences of the voters of Ohio.”

And that’s not all. The Court’s majority, interpreting the state’s constitution, wrote, “To adopt a plan under Section 1(C) (of Article XI), at least two members of each of the two largest political parties represented in the General Assembly must be in the majority voting for the plan.” Wow! The Ohio Supreme Court’s interpretation of the state’s constitution is requiring Republicans and Democrats to work together to establish state voting districts. With respect to gerrymandering, the Court has handcuffed the partisan Commission.

The Ohio Supreme Court’s decision is 146 pages (Thank you very much; North Carolina’s was 260.). The beginning of it gives a highly readable history of the drawing up of the maps. Anyone interested in an application of the quote about laws and  sausages misattributed* to Germany’s Iron Chancellor Otto von Bismarck should read pages 6 through 21. Enough said.

Because 2 February 2022 is the deadline in Ohio for candidates for legislative offices to submit petitions and declarations of candidacy, the Court ordered the Commission to meet, draw up, and submit new redistricting maps to the Court within ten days of its decision.

In yesterday’s column I wrote about North Carolina’s two decade charade in which the Party out of power repeatedly calls for an Independent Commission to formulate map redistricting, rather than elected officials. That is, until they come to power, when it suddenly doesn’t seem like such a good idea. In Chief Justice O’Connor’s concurring opinion she begins by saying she agrees with everything in the Court’s decision and order. But then she goes into depth about how Ohio’s voters might want to amend the Constitution again in order to create such an Independent Commission in an attempt to stop all the partisanship, or at least slow it down. She analyzes Arizona’s decision to do just that. In my next column, I’ll examine the Arizona change and report on its results thus far.

But for the moment, ask yourself this: Are we one country, or are we fifty countries? Are the shenanigans that go on every ten years in every state capitol what we really want for America? Or, do we want one, unified system that insures all elections, at least at the federal level, are governed by the same rules?

I’d love to know how America’s voters, not America’s legislators, would answer those questions.

*The true author is now  believed to have been American poet John Godfrey Saxe, who said it in 1869, 25 years before Bismarck. Saxe’s exact quote is, “Laws, like sausages, cease to inspire respect in proportion as we know how they are made.”

 

 

 

North Carolina Shows The Difficulty Of Passing Voting Rights Legislation

Thursday, January 13th, 2022

Is extreme partisan gerrymandering unconstitutional? That’s the question a three-judge State Court panel of the North Carolina Superior Court answered this week with a firm “NO.” And they took 260 pages to do it. I know, because I read every one of them so you wouldn’t have to.

As I write this, two voting rights bills are ricocheting around congress looking for homes. They are the John Lewis Voting Rights Advancement Act (VRAA) and the Freedom To Vote Act.

In 2013, the Supreme Court struck down a provision of the Voting Rights Act of 1965 that required states with a history of voting rights abuses to get Department of Justice approval for changes they wished to make to their voting rules. The Court said Congress should come up with a new formula for doing that, and that is what the VRAA tries to do. The VRAA:

  • Modernizes the Voting Rights Act of 1965’s formula determining which states and localities have a pattern of discrimination;
  • Ensures last-minute voting changes do not adversely affect voters by requiring officials to publicly announce all voting changes at least 180 days before an election; and
  • Expands the government’s authority to send federal observers to any jurisdiction where there may be a substantial risk of discrimination at the polls on Election Day or during an early voting period.

The other bill, the Freedom To Vote Act, is specifically aimed at combating voter suppression and voter subversion. One of its provisions would ban partisan gerrymandering. Which gets us back to North Carolina.

The State Court’s lengthy decision:

  • Summarized the procedural history. A key point is state voting maps are drawn up by the state legislature every ten years to reflect decennial census data. The Court takes the time to describe how the Party in power at that time always wants to stay in power (what a surprise) and historically has taken steps to do that. It describes how from 2000 to 2010, when Democrats were in power, Republicans offered legislation every year to create an independent commission to set the maps, rather than the legislature. All the bills failed. From 2010 to 2020, when Republicans held power (they still do), Democrats offered the same legislation every year to create the same independent commission. Amazingly, those bills failed, too. The State Court concluded the legislature demonstrated that drawing the maps would be a legislative function, i.e., political, rather than a judicial function.
  • Described how the currently enacted maps were drawn. The Republican controlled legislature established four rooms in the State House, each with encrypted computers where the maps would be created. The map drawing was transparent to both legislators and the public. The process took four months, after which the maps were debated and passed into law. Democrats made many challenges, all of which were defeated. The vote to approve the maps was strictly party-line.
  • Analyzed the extreme partisan gerrymandering claims brought by the plaintiffs. A series of experts, having designed a number of mathematical models, testified persuasively that every one of the 120 state voting districts and every one of the 14 congressional districts were intentionally created with extreme partisan gerrymandering. The Court devoted 158 pages of its decision to these claims, and in every case found for the plaintiffs. The Court said clearly that the plaintiffs were right. All the districts were the result of extreme partisan gerrymandering, which would guarantee Democrats would never win more than four of North Carolina’s 14  Congressional seats.
  • Denied the claims of Plaintiffs and ruled in favor of the Republican defendants. In describing North Carolina’s history of partisan gerrymandering, going all the way back to 1665 to do it, the three-judge panel (all Republicans) ruled that because the decennial  map drawing had been amply demonstrated to be a political process, rather than judicial, and even though the Court might believe the process to be “repugnant,” over decades the history had shown this was the way both parties wanted it, and, therefore, it reflected the will of the electorate. The court ruled extremely partisan maps are “permissible,” and that no one had been able to prove at what point they became impermissible.

Gerrymandering has been with us since 1812, when Elbridge Gerry, Governor of Massachusetts, drew the long and thin salamander-looking state senate district in Massachusetts. Both parties relish it, except when they’re not in power. Then, it’s “Let’s create an independent commission to do it the right way!”

Banning partisan gerrymandering is only one of the 24 provisions in the Freedom To Vote Act. But I think North Carolina has demonstrated it’s complicated. As are the other 23 provisions. If you peel the onion all the way down, it’s hard to pretend the current political battle isn’t a fight about states’ rights. Do we have a unified, federally designed system to insure free and fair elections in every state, or is it every state for itself? Is there any room for compromise on these bills?

This question has been with America since its founding. For example, on this date in 1833, President Andrew Jackson, the favorite president of that well-known historian Donald Trump, stared down his former Vice President John C. Calhoun over the South Carolina Nullification Crisis. The state had nullified a federal tariff that favored Northern manufacturing over Southern agriculture. Calhoun saw federal law supremacy as a serious threat to slavery. Consequently, he and his South Carolina neighbors were having none of this tariff thing, and they were preparing to go to war to resist. Jackson responded to South Carolina’s ire with a Proclamation to the people of South Carolina. Considered the greatest state paper of the era, Jackson promised to uphold the federal tariff and warned “disunion by armed force is treason.” In that instance, bloodshed was averted by a compromise offered by Henry Clay that provided for a reduced tariff and enabled Calhoun to save face.

Where’s Henry Clay when you need him?

The Past As Prologue

Thursday, January 6th, 2022

Today is a seminal day in American history. The one-year anniversary of a serious attempt by violent insurrectionists to stage a coup d’état in our nation’s Capitol. This is a day for remembering how close we came to losing our American soul. In the year since the attack, the attack has continued, albeit peacefully. I ask you to bear with me for a moment, for I am struck by the frightening similarities between what is happening in our nation today and what happened long ago in another country going through rough times. That country turned to a devil in disguise, a master manipulator who persuaded its citizens to follow him willingly straight through the gates of hell.

Then: 1918 – 1933

In November, 1918, high-school dropout and failed artist Adolph Hitler was recuperating in hospital from a Mustard Gas attack suffered the previous month on a battlefield of World War I. He’d been a Corporal in the German Army and had distinguished himself as a messenger, running between units to deliver orders and bring replies, sometimes under heavy fire.

While he was in hospital, the war ended and the warring armies signed the Treaty of Versailles, which levied tremendous reparations on Germany and caused rampant inflation that wiped out savings overnight. Hitler wrote later that at that moment he realized his purpose in life was “to save Germany.”

Before the war, Hitler had lived in Munich, the capital of Bavaria in southern Germany, and after recovering he returned there. He was hired by the police as a spy and told to infiltrate a small group called the German Workers’ Party. However, rather than spying on the group he fell in love with its nationalistic and anti-Semitic ideology. He joined the Party in 1919, and two years later became its leader.

With mentoring by the group’s co-founder Dietrich Eckart, Hitler became an unparalleled public speaker, addressing thousands in local beer halls. In 1921 he changed the name of the German Workers’ Party to the National German Socialist Workers’ Party, or the Nazi Party, and the Party’s members elected him leader in July of that year.

In the following two years the Nazi Party grew as Germans responded to Hitler’s rants about how the Treaty of Versailles had emasculated the country, bringing shame and humiliation that had to be avenged. In Hitler’s mind the Weimar Republic had failed its duty to its citizens and had to be replaced. So, on 8 November 1923, Hitler and hundreds of Nazi Party members surrounded the Bürgerbräukeller, one of the biggest beer halls in Munich, where Gustav von Kahr, state commissioner of Bavaria, was speaking. Hitler burst in, fired a shot into the ceiling, commandeered the podium, and declared a “national revolution.” Thus, the Beer Hall Putsch began.

The rest of the night went downhill for Hitler. He had wanted to lead a march on Berlin, as Benito Mussolini had done a year earlier in Rome. This was not to be. His followers tried to take over government buildings, but were foiled by the police. Early the next morning, Hitler and World War I General Erich Ludendorff, whom Hitler had persuaded to join the Nazi Party and help in the Putsch, led 3,000 of their followers to the city center in an attempt to salvage the coup. They were met by state police. Shots were fired. Four police officers were killed, along with 16 Nazis, whom Hitler would later describe as martyrs and entomb in two “temples of honor” in downtown Munich. Two days later, Hitler was captured. He was tried for treason, convicted and sentenced to five years in Landsberg prison. He served one year and was pardoned on 20 December 1924. During that one year, he wrote the first volume of “Mein Kampf” (“My Struggle”), dictating the work to his fellow prisoner and sycophant Rudolph Hess.

Hitler had done a lot of serious thinking in prison and realized a violent takeover of Germany would be tremendously difficult. He concluded that the way to power was through legal means, but that the legal and political means had to be manipulated by the Nazis for the effort to succeed. The way to rule Germany was to win elections. The Beer Hall Putsch and Hitler’s subsequent trial, during which his defense speeches were printed in all the newspapers, grew the Nazi Party exponentially and brought him and the Party to national prominence.

In 1933, nine years after walking out of Landsberg prison a free man, Adolph Hitler became Chancellor of Germany.

Now: 2021 – 2022 and beyond

Today is the one-year anniversary of the Insurrection of 6 January 2021, America’s version of the Beer Hall Putsch.

Last month, in a long essay in The Atlantic, Barton Gellman persuasively and scarily argued that 6 January was a dress rehearsal.

He began his essay this way:

Technically, the next attempt to overthrow a national election may not qualify as a coup. It will rely on subversion more than violence, although each will have its place. If the plot succeeds, the ballots cast by American voters will not decide the presidency in 2024. Thousands of votes will be thrown away, or millions, to produce the required effect. The winner will be declared the loser. The loser will be certified president-elect. The prospect of this democratic collapse is not remote. People with the motive to make it happen are manufacturing the means. Given the opportunity, they will act. They are acting already.

Gellman is no “Chicken Little.” He has a distinguished and long career. His awards include the Pulitzer Prize, an Emmy for documentary filmmaking, and the Los Angeles Times Book Prize. When Gelmann writes, smart people read.

As he lays out what is happening in America right now, one cannot help but think how eerily similar the Republican Party’s current actions are to Hitler’s battle plan for taking over Germany. Hitler realized violence would not result in victory. Winning elections and manipulating the election process would allow him to rise to total power, and the rest of the world would welcome him as the new leader of the German people, achieving that distinction by apparently (but not really) fair means.

Will someone please tell me how that differs from today’s Republican legislators, who, understanding that another violent insurrection would not achieve their aims, cottoned on to the idea that changing the election rules in 19 states would set themselves up to win the 2022 mid-terms, the 2024 presidential election, and elections into the future, thereby “legally” allowing a minority to rule a majority in what purports to be a democracy?

As Gelmann writes,

As we near the anniversary of January 6, investigators are still unearthing the roots of the insurrection that sacked the Capitol and sent members of Congress fleeing for their lives. What we know already, and could not have known then, is that the chaos wrought on that day was integral to a coherent plan. In retrospect, the insurrection takes on the aspect of rehearsal.

Right now, many Republican Party wannabe leaders make the pilgrimage to Mar-A-Lago to genuflect at the knee of Donald Trump. Amazingly, a new USA TODAY/Suffolk University poll finds 58% of Republican voters still believe the Big Lie, despite a plethora of audits and investigations, many led by Republican election officials, finding exactly the opposite. These voters continue to believe with biblical certainty that Joe Biden is an illegitimate occupant of 1600 Pennsylvania Avenue. How can this be?

Today, the very few GOP dissenters to the Lie are being cast out into political oblivion. “2 down, 8 to go!” Trump gloated at the retirement announcement of Representative Adam Kinzinger, one of 10 House Republicans to vote for his second impeachment.

After the Insurrection of a year ago, I, like so many others, believed the insurrectionists were on the far right fringe, out of work unhappy folks angry at the world. Life’s dissatisfied customers. But in the year since we have learned that this is not the case. Most insurrectionists were not members of any far right groups like the Proud Boys or OathKeepers. No, they were the guys next door. Managers, even CEOs of middle of America companies. When this came to light, for the first time I began to think as Gelmann thinks. Now, I’m wondering if there is any way to change what appears to be an inevitable arc of history.

There are currently two voting rights bills languishing in the U.S. Senate, the For the People Act of 2021 and the John R. Lewis Voting Rights Advancement Act of 2021.  In order to pass either of these bills requires a carveout to the filibuster, which would allow a simple majority to determine the vote. West Virginia’s Senator Joe Manchin calls this “a heavy lift.” He, one senator out of a hundred, will not allow this. Minority Leader Mitch McConnell didn’t have such qualms when he engineered exactly the same kind of carveout to insure Trump’s nominees to the Supreme Court would be confirmed by simple majority. He did, and they were.

Today, 6 January 2022, there will be events and reports all over the country marking the occasion. You won’t see Republican legislators in any of the videos or photos. They maintain it’s just a distraction from the important work of governing, that is, obstructing anything and everything the Biden administration is trying to do.

Their plan is infuriating. And it’s working with a little help from the Coal guy on the Houseboat. Manchin seems to enjoy the spotlight, a one man wrecking ball of American democracy.

Can America Fix Its Public Health System?

Wednesday, January 5th, 2022

Despite the cost of health care in America being nearly twice the average of the other 37 countries within the Organization for Economic Co-operation and Development (OECD), we achieve poorer health care outcomes than the average and our life expectancy of 78.9 years is 2.1 years below the OECD average of 81.* The OECD chart below is quite instructive. It shows the nation’s relatively poor health performance, but what I find interesting is the last line: We self-rate our health better, much better, than the OECD average. Friends, we have swallowed the Kool Aid.

If we reach the age of 65 when Medicare becomes available, life expectancy improves to 84.5 years, but that puts us still below the OECD average of 84.9 and 13th from the bottom of the pack. By way of further comparison, the Brits, whose National Health System we so cavalierly denigrate, outlive us by 2.5 years; Canadiens, by 3.2 years. They must be doing something right, and they do it for significantly less money.

One often overlooked and, for the most part, unexamined reason for our high health care costs and sub-par outcomes can be found in our woebegone Public Health System. Of all the gaping holes COVID-19 has exposed in the nation’s approach to health care and emergency preparedness, our Public Health System, fragmented, uncoordinated, underfunded, but critically important, is the deepest.

COVID has turned the health care world upside down, especially in regards to health care funding. CMS reports U.S. health care spending grew 9.7 percent in 2020, reaching $4.1 trillion or $12,530 per person. As a share of the nation’s Gross Domestic Product, health spending accounted for 19.7%, up from 16.8% the year prior.

Less than 3% of that $4.1 trillion went to our Public Health System. Moreover, Trust for America’s Health, a non-partisan organization that tracks health issues, reports public health spending as a proportion of total health spending has been decreasing since 2000 and falling in inflation-adjusted terms since the Great Recession. Health departments across the country are battling 21st-century health care wars with mid-20th-century weapons.

Our Public Health System is supposed to address everything having to do with health, from diseases like COVID-19 to tornados, hurricanes, wild fires, floods, rat infestations, and the like. It lives at the local level, from states, to counties, to cities and towns. My little Berkshire town of Becket, Massachusetts, population of 1,931, has a functioning Health Department.

The CDC, through grants to the states and large cities is the primary funder of federal public health. The system and funding for it worked pretty well until, in 2001, terrorists brought down the Twin Towers on 9/11, killing 2,996 of our fellow citizens. Suddenly, money that had been earmarked for public health was syphoned off for the War on Terror. In attempting to right the ship, Section 4002 of the Patient Protection and Affordable Care Act of 2010 (ACA) established the Prevention and Public Health Fund. Also known as the Prevention Fund or PPHF, it is the nation’s first mandatory funding stream dedicated to improving our nation’s public health system. By law, the Prevention Fund must be used “to provide for expanded and sustained national investment in prevention and public health programs to improve health and help restrain the rate of growth in private and public health care costs.” The law mandated funding: $18.75 billion between fiscal years 2010 and 2022 and then $2 billion annually thereafter.

The Fund’s intentional mandatory design was meant to ensure consistent, predictable, and expanded resources for prevention and public health that are not always politically viable in the annual appropriations process, where public health and prevention programs compete against other priorities.

The Fund’s statute is broad and authorizes use of funds for a number of activities and grant programs:

The Secretary shall transfer amounts in the Fund to accounts within the Department of Health and Human Services to increase funding, over the fiscal year 2008 level, for programs authorized by the Public Health Service Act [42 U.S.C. 201 et seq.], for prevention, wellness, and public health activities including prevention research, health screenings, and initiatives, such as the Community Transformation grant program, the Education and Outreach Campaign Regarding Preventive Benefits, and immunization programs.

But nowhere in the statute does it say that the President or Congress cannot redirect the Fund’s money for some other purpose. And that is what has happened.

Redirecting the Fund’s cash for some other purpose would not be, per se, a bad thing as long as the new purpose advanced public health. However, political expediency, partisan grandstanding, the republican-led 63 attempts to repeal the ACA, the law that established and governs the Fund, have done damage. For example, in February 2012, Congress passed and President Obama signed legislation to cut the Fund by $6.25 billion over 9 years (FY2013 to FY2021) to correct the Medicare sustainable growth rate and prevent cuts to physician services in the Medicare program (known as the “doc fix”). To believe these measures actually advanced our Public Health System is to believe pigs really can fly.

A less controversial move that still violated the Fund’s legislative intent happened in FY2013, when Republicans, who controlled the House of Representatives, refused to appropriate funding for ACA enrollment activities. In response, the Obama administration used the Fund’s money to do that.

As congressional partisanship deepened in the following years, Republicans began to question the Fund as government overreach, calling it the “Obama slush fund.” In 2017, the Republican-led House passed the American Health Care Act of 2017, which would have cut the Fund by $1 billion. It was defeated in the Senate, but it exemplifies the rancor in the Halls of Congress.

A government’s first duty is to protect the safety of its citizens. The arrival of COVID-19, laying bare our still woeful Public Health System, showed us we were unprepared to address that sacred duty, and more than 800,000 of us have died to prove the point.

We could have done so much better.

 

* These are 2019 numbers, the latest year the OECD is reporting as of this writing. According to the CDC, U.S. life expectancy dropped to 77 years in 2020, which is partly due to 385,441 deaths due to COVID-19 in 2020. We can expect a continued drop in life expectancy being reported for 2021, as COVID deaths in that year totaled 435,755.