The Silver Lining: Will McCain’s Legacy be America’s Rejection of Partisanship Politics?

By Professor Maureen Johnson

American values. It’s hard to imagine a statesman who so perfectly embodied American ideals as Sen. John McCain. Rather than jump the line on early release as a prisoner of war because of his privileged status, he refused. Honoring the military code of conduct that prisoners of war should be released in the order of capture, McCain was imprisoned for over five years – including two years of solitary confinement - enduring daily tortures that left him hobbled in body, but never in spirit. As universally agreed, he was a good man, a good husband and father, and a truly phenomenal American.

But McCain recently had one unabashed critic.

Donald Trump publically rejected the idea that John McCain was an American hero. Per Trump, McCain only was given that tag “because he was captured.” Trump added: “I like people who weren’t captured.” Trump continued his rebuke even after McCain revealed his battle with cancer. While fellow Republicans begged for reversal, Trump doubled-down, scorning and belittling an honored patriot whom almost all of us feel we have been blessed to admire and call our own.

Trump’s heartless comments are emblematic of a much deeper philosophy that cannot be reconciled with our American spirit. Whenever there is a winner, there is a loser. To say one automatically is worthy and the other is not is insidious, divisive and an affront to humanity. This especially is so when the perceived loser – the person violated – is a fellow American.

Imagine if the words Trump uttered were instead: I like police officers who don’t get shot. I like women who don’t get sexually assaulted. I like children who don’t get beat up by a schoolyard bully.

If John McCain taught us anything, it’s that we do not turn on each other. Americans have each other’s backs. Winners do so with grace. If this is done, the losing party is not disenfranchised. Instead, we tackle problems as Americans, not as embattled partisans bent on wielding power to destroy the other. In an open letter to America read two days after his death by long-time aide Rick Davis, McCain said just that.

In the words of Sen. McCain:

“We weaken our greatness when we confuse our patriotism with tribal rivalries that have sown resentment and hatred and violence in all of the corners of the globe. We weaken it when we hide behind walls rather than tear them down, when we doubt the power of our ideals rather than trust them to be the great force for change they have always been. We are 325 million opinionated vociferous individuals. We argue, and sometimes even vilify each other in our raucous public debates. But we have always had so much more in common with each other than in disagreement. If only we remember that and give each other the benefit of the presumption that we all love our country, we will get through these challenging times. We will come through them stronger than before; we always do.”

McCain’s poignant words can bring us home.

America was great when we honored our fallen soldiers instead of kicking them to the wayside. America was great when we shared our good fortune, instead of whining like a spoiled child that we want all the candy for ourselves. America was great when our elders – including the very great John McCain – earned their spots as world leaders by championing democracy, instead of touting the purported charms of brutal dictators and autocrats.

And yes, America truly was great when a naval pilot in Vietnam named John McCain chose to forgo his get-out-of-jail-free card and instead stand in solidarity with his fellow soldiers. We know what reasoning Trump would have employed to weigh such a decision: winning.

Surely, that is what Trump thought he did when he got a waiver from serving in the military altogether due to his claim of being physically unfit because of a bone spur in his heel that somehow never since has caused him a problem. Imagine a 20-something Trump yucking it up at a Manhattan nightclub, boasting about how clever he was. If this was “winning,” who were the losers? Per Trump’s all-or-nothing winner-loser paradigm, the “losers” in his view must have been all those American soldiers who weren’t so clever and instead served their country when called, ultimately drawing their last breath on a battlefield in Laos.

This is the man we elected president? It is no wonder McCain’s final farewell to America has been perceived by many as a warning about the views of the current administration.

No doubt the impact of an American president’s ideals – or lack thereof – trickles down to the masses, most notably to impressionable children. Consider a 6-year-old trying to grapple with the idea of sharing: two scoops of ice cream for me, one for you. Or respecting a classmate: If you’re president, you can do whatever you want. Grab them by the p****. And then there’s truth: A lie isn’t a lie if you say it enough

Character matters. McCain possessed both the courage and grit to hold a mirror up to Trump. In doing so, he has held that same mirror up for the entire nation. Is Trump whom we want to become? Or is it true American heroes committed to service – like John McCain – whose aim is to unite rather than divide?

Just as presidential values can trickle down, the values of the American people can trickle up. Let’s honor McCain not as partisans, but as the Americans for whom he valiantly served in Vietnam, in that cage in Hanoi as a prisoner-of-war and in the grand halls of the United States Senate, where he called for the end to partisan politics. McCain rose like a phoenix from the most trying of times; so too can we.

Put simply, which of these two men do you want your son or daughter to emulate? Senator McCain, you have my vote.

Trump's Failure to Disclose Taxes Should be a Disqualifier

By Professor Katherine Pratt

Just days before the presidential election, concerns about Donald Trump’s payment of his tax obligations persist. Recent press coverage has focused on an issue that (at least so far, based on very limited information) probably does not disqualify him to be our president, and has not focused enough on two more fundamental tax issues that disqualify him to be our president.

In the past few days, press coverage has emphasized a technical business tax question: what specific tax strategies did Trump use to generate and preserve $916 million of net operating losses (NOLs), despite massive debt discharge, and were those strategies legally questionable? A front page November 1 New York Times article on this topic asserts that the “stock for debt swap” part of Trump’s overall tax strategy was a new tax “dodge” dreamed up by tax lawyers to avoid debt discharge income (COD) on the cancellation of debt. This characterization of such swaps as a new tax scam is inaccurate. My academic articles on corporate COD explain the long history and theory of the exception and its gradual repeal. Suffice it to say that “stock for debt swaps” in bankruptcy cases were relatively common in the 1980s and early 1990s. Unless there is more to be revealed, Trump’s use of the stock for debt exception to COD does not disqualify him to be president.

But Trump’s conduct regarding two other tax issues does disqualify him to be president.

First, Trump’s continuing failure to disclose his tax returns is a disqualifier. For decades, all other presidential candidates have disclosed their tax returns. As Republican Fred Goldberg (IRS Commissioner under President George H.W. Bush) argues, a candidate who refuses to disclose tax returns has not earned our trust and is not qualified to be our president.

Although Trump claims that he cannot disclose his tax returns because he is being audited, many of Trumps’ tax returns are not under audit. The statute of limitations (SOL) for tax returns is generally three years (or six years if large amounts of income are omitted) from the filing date. This means that the IRS generally has three years to challenge the return and claim that the taxpayer owes additional tax for a specific tax year. In addition, a special rule extends the SOL for years to which NOLs are carried back. Once an audit begins, a taxpayer often consents to extend the SOL, to give the IRS and the taxpayer time to settle the case without a lawsuit. If a taxpayer does not extend the SOL or agree to pay extra tax, the IRS sends the taxpayer a letter that initiates a lawsuit in the US Tax Court. The upshot of this is that Trump’s tax returns for a number of years currently may be in the administrative audit process with the IRS -- but they can’t ALL be in audit. In addition, it is doubtful that the IRS has audited Trump’s most recent income tax return. If, as is likely, his 2015 tax return is not under audit, Trump should disclose it. Also, he should disclose his returns for any earlier years that currently are not under audit.

Second, Fred Goldberg and fellow Republican Michael Graetz (Deputy Assistant Secretary, Tax Policy, under President George H.W. Bush) conclude that Trump likely failed to pay Medicare taxes on salary income he understated. In addition, unless Trump reported all of the salary he was paid for his services as self-employment income, he likely also failed to pay Social Security taxes. (Only disclosure of his self-employment income and other details from his tax returns could refute that conclusion.) Even minimum wage workers pay Social Security and Medicare taxes. Trump’s conduct shows that he shares the view expressed by another famous New York City business tycoon, Leona Helmsley: “only the little people pay taxes.” His avoidance of payroll taxes is an insult to law-abiding, taxpaying Americans and disqualifies him from being our president.

Do Lawyers Make Better Presidents?

What do the following Presidents have in common: Thomas Jefferson, Abraham Lincoln, Woodrow Wilson, and Franklin D. Roosevelt? All are frequently voted by historians as amongst the 10best U.S. Presidents – and all were lawyers or law school graduates.

And what do the following Presidents have in common: Millard Fillmore, Franklin Pierce, James Buchanan, and Richard Nixon? All are frequently voted by historians as among the 10 worst U.S. Presidents – and all were lawyers or law school graduates.

Combined with the fact that many highly regarded presidents were not trained in law – including George Washington, Harry Truman, and Dwight Eisenhower – these lists suggest that legal training is not necessarily correlated with the good judgment, political acumen, and leadership skill necessary to excel in the Oval Office. But there’s more to the story than the best-and-worst rankings.

The most important number may be that 25 out of 44 presidents graduated from law school or practiced law. (The two are not the same thing, especially in earlier times when most lawyers entered the profession through apprenticeship.) Lawyers represent only 0.36% of the U.S. population, but over 56% of presidents. The electorate, it seems, considers legal training a useful characteristic in presidents – or least not a disqualifying one.

It stands to reason that legal credentials would be common among the people who excel at politics and public service. People with an interest in government tend to gravitate toward law, since most government posts involve law in one capacity or another, whether it be making it, interpreting it, or enforcing it. As a result, the pool of credible presidential candidates is more lawyer-heavy than the public at large. This helps explain why three out of four of this year’s presidential and vice-presidential candidates – Hillary Clinton, Tim Kaine, and Mike Pence – were practicing lawyers before running for public office. And why one former president – William Howard Taft – and one serious presidential candidate – Charles Evans Hughes – later became chief justices of the U.S. Supreme Court.

The modern J.D. degree builds knowledge and skills useful for office-holders even if they never represented clients. President Barack Obama, for example, never had a private practice comparable to that of First Lady Michelle Obama. But like President Bill Clinton before him, he taught constitutional law at a law school (where one eye could also be kept on political opportunities). For which of our past lawyer-presidents was the daily practice of law a major part of their personal and professional identity? President John Adams considered one of his greatest professional accomplishments to be his successful defense of some very unpopular criminal defendants: British soldiers charged in the Boston Massacre. President Abraham Lincoln was a self-taught lawyer renowned for his courtroom skills. His “country lawyer” persona remains a defining part of his legacy. Rounding out this list of presidents whose outlook on life may have been shaped by their legal practice is Richard Nixon, who practiced law both before entering Congress and during his mid-1960’s political hiatus. Nixon’s most well-remembered statement – “I am not a crook” – interacts poignantly with Lincoln’s advice to young lawyers: “Resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer.”

A law degree is of course no guarantee that today’s student will win tomorrow’s election. It does not guarantee how history will remember future lawyer-presidents. But as a credential that is both relevant for the job and respected by the voting public, a law degree seems to be a sound political investment.

Historic Nomination of Hillary Clinton Underscored by Donald Trump's Misogyny

By Professor Jessica Levinson

Elections should be about ideological differences. Liberals and conservatives, or Democrats and Republicans, tend to have different worldviews. Most people agree on a few broad and fundamental premises. We just do not agree on how to get there. This election cycle is different.

This is a battle between the first female nominee of a major political party and the first nominee of a major political party who lacks any time in public office or military experience. This is a battle between equality versus discrimination. About tolerance versus intolerance.

The importance of Hillary Clinton's historic nomination as the first nominee of a major political party is underscored by the distressingly misogynistic comments coming from Donald J. Trump.

Unfortunately, in this historic election, the outcome will be decided by voters who are weighing in against one of the two leading candidates. As we have seen in the conventions, the candidates are not only trying to energize their supporters and get them to the polls, they are trying to convince undecided voters to vote against their opponent.

President & Policing: What the Candidates Need to Consider

By Adjunct Professor Steve Lurie
Lieutenant, Los Angeles Police Department

The next president of the United States will lead our nation’s police through the most important four years in the history of American policing. Their most critical responsibility will be to rebuild the morale of our nation’s police officers. The president will inherit a nation where law enforcement professionals feel paralyzed. As a result, violent crime is rising in all of our major cities. Recruitment numbers are falling. Proactive policing is dying or dead. Without a motivated, professional police community, re-energized to walk the thin blue line, no progress will be made.

In tandem with this mission, the president must address communities who do not trust that policing is being done in a constitutional, even-handed manner. There is no doubt that a small percentage of officers make errors in judgment during their shifts. Even more rarely, an officer with bad intentions uses their power for evil. These breaches of the public trust are abhorrent and should be swiftly punished. Increased funding for body cameras and other accountability tools should come in the first 100 days of the new administration. Once deployed, these will show that police misconduct is extraordinarily uncommon. The current national tone far exaggerates the frequency of true wrongdoing by sworn officers.

Leadership on policing starts at the White House and the Attorney General’s office. Both of these have failed to curtail the fomentation of an environment where the police are viewed as the enemy, and the law breakers are empowered as never before in our history. The expected result, a marked increase in crime, is beginning to cast its cloud over our people. The next president of the United States must act immediately and decisively to turn back this storm in a way that strengthens the bond between members of law enforcement and the communities they serve.

Adjunct Professor Steve Lurie teaches the Police Practice Seminar at Loyola Law School. He is a lieutenant with the Los Angeles Police Department.

Comparing California's Competing Death Penalty Initiatives

By Adjunct Professor Paula Mitchell
Executive Director, Alarcón Advocacy Center & Legal Director, Loyola Project for the Innocent

On Nov. 8, 2016, California voters will choose between two competing death penalty initiatives: Prop 62 ends capital punishment and saves California taxpayers $1.5 billion over the next 10 years, while the other measure, Prop 66, doubles down on the state’s costly, failed system, spending millions more in an effort to speed up executions.

The state has spent roughly $5 billion over the last 40 years on a system that has produced no more than 13 executions. Supporters of Prop 62, known as the Justice That Works Act, say it is too costly, it does not deter crime, it risks executing innocent people, it is not evenly applied racially or geographically, and it is fundamentally a failed system that cannot be repaired. 

They say its time to end the death penalty because the system has long been dysfunctional and is now broken beyond repair. They also argue that ending the death penalty will prevent the state from ever executing anyone who is actually innocent of the crimes for which they were convicted. Prop 62 is retroactive and will convert the death sentences of the 747 inmates on death row to life without the possibility of parole and increase to 60% the share of wages earned while working in prison that are dedicated to victim restitution orders.

By contrast, the Death Penalty Reform and Savings Act of 2016, Prop 66, claims the system can be fixed and proposes to implement various amendments to state law aimed at speeding up the judicial review process and the rate of executions, including suggested time frames and limitations on direct appeal and habeas corpus proceedings, changing the process for appointment of to appoint counsel in direct appeals and habeas corpus petition proceedings, shifting initial jurisdiction for habeas corpus petitions, and making various other changes to the laws and procedures that would ease regulations surrounding the lethal injection protocols developed and employed by the California Department of Corrections and Rehabilitation (CDCR). These proposed changes will increase state costs by tens of millions of dollars annually, with the fiscal impact of such costs being unknown in the longer run.

The full report appears below.

The Perils of Killing International Trade Deals

By Professor Jeffery Atik

Not since the 1993 Ross Perot-Al Gore debate on NAFTA have international trade issues appeared so prominently in U.S. political discourse. Both the insurgent presidential candidates -- Donald Trump and Bernie Sanders -- called for a break from longstanding U.S. policies favoring international trade. Two major ongoing trade initiatives - the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) - are threatened.

Britain’s recent decision to exit the European Union has almost certainly ended any prospect of concluding TTIP, and both Trump and Hillary Clinton are now expressing opposition to TPP. Trump’s opposition to TPP is a bit surprising, as TPP was designed to counter China’s influence in the Pacific region. China is the central focus of Trump’s neo-nationalist ire; he

promises to subject Chinese goods to punishing tariffs. Were he to do so, it would likely plunge the entire World Trade Organization into crisis, effecting a U.S.-style “Brexit” from the international trading system.

Obama’s Fateful Warning

By Professor Eric Miller

Yesterday, President Obama gave an impassioned speech warning against singling out the American Muslim community, and indeed Muslims worldwide, as complicit in the violence that erupted so tragically in Orlando this weekend. In an angry response to Donald Trump’s insinuation that American Muslims as a group support and hide terrorists, President Obama asked “Where does this stop?”

While most news outlets focused on that soundbite, what the President said next was much more fateful. The President, a former professor of constitutional law, went on to invoke perhaps America’s most reprehensible act after slavery: the internment of Japanese Americans at the outbreak of World War II. He said, “We have gone through moments in our history before when we acted out of fear, and we came to regret it. We have seen our government mistreat our fellow citizens, and it has been a shameful part of our history.”

It was then California Attorney General Earl Warren who took the decision to intern Japanese Americans, and it was a decision he was to regret for the rest of his life. His decision, upheld in the infamous case of Korematsu v. United States, condemned tens of thousands of Americans to confinement based only on the fear that, collectively, they posed a threat to national security. Yet, like the many Muslim Americans who serve with distinction in the American Military today, many of those Japanese Americans fought gallantly on our behalf in the Second World War. Eventually American acknowledged its wrong, and in 1988, under President George W. Bush, Congress passed the Civil Liberties Act to compensate the surviving members of the Internment, apologize, and “prevent the recurrence of any similar event.”

Earl Warren’s eventual response to his worst decision was to be his best: as Chief Justice of the Supreme Court, he extended the equal protection of the law to all Americans in Brown v. Board of Education, the decision that entrenched desegregation and equal citizenship for all as cornerstones of the American way of life. Brown was an important political decision in another war: the Cold War fight for the hearts and minds of peoples around the world who found American claims to moral leadership sullied by the evils of racial discrimination. Undoing the wrongs of the Internment, and of segregation, enabled America to champion freedom, justice, and democracy around the globe. President Obama told us yesterday that America once again faces its Korematsu moment. We must not go down that path again.

Learn more about professors' expertise on election topics in Loyola's Election 2016 Commentary Guide.

Garland on the Rights of People with Disabilities

By Dean Michael Waterstone

This op-ed originally appeared in the April 28, 2016 edition of the Los Angeles Daily Journal.

What would Justice Merrick Garland mean for the U.S. Supreme Court? Despite signals that recalcitrant Republicans want to avoid this discussion, I hope lots of different groups begin to have a public dialogue about this important question. I teach, research and write in the area of disability law, a subset of civil rights law. Laws like the Americans with Disabilities Act have helped people with disabilities attain full citizenship in our country, yet there is still a long way to go.

Cases involving the civil rights claims about people with disabilities raise important questions involving individual rights, business' ability to comply with regulations in a cost-effective manner and state power. There are no easy answers. Yet one important thing about disability law is that it has tended to transcend typical left-right and Democrat-Republican divisions. Even in an era of extreme polarization, laws protecting the civil rights of people with disabilities have still been passed. There are lots of open legal questions within disability law, but ones on which there are potential political and judicial consensus. This makes the choice of the next Supreme Court justice an important one, and one about which lots of people should care. Disability is a growing category - it is the one minority group we could all join at any time.

Judge Garland does not himself have an obvious disability or life experience with disability that is yet part of the public record. So the cases he has decided offer the best road map for what his decision-making in this area might look like. Garland has written hundreds of opinions and participated in thousands of cases - here, I only have space to talk about a few, focusing on opinions or dissents Garland wrote himself.

Criminal Justice Issues & Election 2016

By Professor Laurie Levenson

Although there are critical issues facing our criminal justice system today, precious little has been said by this election’s Presidential candidates. However, if one checks their websites, important differences among the candidates emerge.

If You're Going to Be a Single-Issue Voter, Make That Issue the Supreme Court

By: Professor Jessica Levinson
This is an excerpt from an op-ed Professor Levinson wrote for Pacific Standard

Justice Antonin Scalia's unexpected death has thrown the importance of the Supreme Court into focus. Amid all the partisan bickering and obstructionist, political posturing we should take a moment to talk about why the composition of the United States' highest-ranking court matters. Simply put, the people who sit in its nine chairs can have lasting power far beyond the man (or perhaps, someday, woman) who appoints them.

First, while presidents can hold office for a maximum for eight years, Supreme Court justices (along with all lower federal judges) hold lifetime appointments. Justices can—and often do—stay in office for decades.

Read the full article here.

Election Results through a Healthcare Lens

By Professor Brietta Clark

Since election night people have been preoccupied with what the post-election polling reveals about America's electorate, particularly its shifting values and priorities and what this will mean for future elections. A recurring theme among commentators is that growing diversity played an important role for Democratic wins in the Presidential and Congressional races. According to a report by the Pew Research Center, Obama received the support of African Americans, Latinos, and Asian Americans by a wide margin. Women also played a prominent role in this election: they not only supported Obama by a wide margin, but were also instrumental in Democratic wins in the House and Senate. And a Gallup survey showed that voters who identify as gay, lesbian, or bisexual overwhelmingly supported President Obama.

Read the complete post on Professor Clark's Health Care Justice Blog.

Free Speech and the Victory Speech

By Associate Professor Aaron Caplan

Barack Obama's election -- and now re-election -- signal America's willingness to select as its leader a member of a historically reviled minority group. The group I refer to, of course, is constitutional law professors.

The President's familiarity with America's constitutional history crept into his Tuesday night victory speech, but perhaps at a frequency that only dogs or fellow con law professors could hear. Consciously or unconsciously, he echoed sentiments from a case studied in most First Amendment courses, Terminiello v. City of Chicago (1949). Terminiello was one of a series of important decisions involving civil rights and freedom of speech that arose from Chicago's tumultuous racial and ethnic tensions of the mid-20th century. As a proud Chicagoan, President Obama would certainly be familiar with this line of cases, which also includes Hansberry v. Lee (1940) (segregated housing), Beauharnais v. Illinois (1952) (hate speech), Gregory v. Chicago (1969) (civil rights demonstration), Organization for a Better Austin v. Keefe (1971) (protests relating to segregated housing), and Collin v. Smith (1978) (neo-Nazi parade).

In Terminiello, an angry crowd demonstrated outside an auditorium where a demagogue delivered a reactionary and anti-Semitic political speech. To avoid a riot, police arrested the speaker for disorderly conduct. At trial, the jury was instructed that a defendant's behavior "may constitute a breach of the peace if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, or if it molests the inhabitants in the enjoyment of peace and quiet by arousing alarm."

The Supreme Court reversed the conviction. In its most widely-quoted passage, Justice William O. Douglas's majority opinion relied on a bit of verbal jujitsu to declare that the vices identified in the jury instructions were actually virtues: "[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.

Justice Douglas's opinion in Terminiello echoed in this passage of the President's victory speech in Chicago:

> Democracy in a nation of 300 million can be noisy and messy and complicated. We have our own opinions. Each of us has deeply held beliefs. And when we go through tough times, when we make big decisions as a country, it necessarily stirs passions, stirs up controversy. That won't change after tonight, and it shouldn't. These arguments we have are a mark of our liberty.

With voting, there's no place like home

By Associate Professor Justin Levitt

In a recent New York Times "Campaign Stops" piece, I mentioned concerns about citizens undermining the integrity of the election by attempting to impose and enforce the "law of their gut" rather than the law on the books.

One prominent example concerns the concept of domicile. Domicile shows up in different ways in the election process, but the most common misunderstanding has to do with where people are eligible to vote. Recent reports reveal that voters have been challenged in several states based on claims that they aren't eligible to vote where they're registered. These challenges often reflect a common gut instinct -- but more seldom reflect the law.

In several states, organizations "empowered" by a national organization called True the Vote have announced research finding registrations subject to challenge based on their addresses. This isn't the first time that people have been challenged based on unwarranted assumptions about their addresses -- voter caging schemes, for example, are a version of this.

The True the Vote approach apparently starts by combing large databases, flagging (for example) addresses where more than 6 people are registered. Other flags may include people registered at colleges or allegedly vacant lots.

The Climate Elephant in the Voting Booth

By Associate Professor Kathy Trisolini
In the immediate aftermath of "Superstorm" Sandy, a number of articles appeared in the mainstream press with pundits asking how Sandy might affect the election. Aside from practical questions about the logistics of early voting, most pundits focused on how the candidates' responses could affect their respective public images. "Who would 'look like' a leader?" they asked. Yet the presidential election is much more important than just another issue of People magazine, a fact obscured by the excessive focus on image and how it affects the horse race.

Sandy is just another example of a changing trend in extreme weather events. Last summer, excessive drought damaged crops and stranded boats on the Mississippi; each summer we are setting new heat records and Arctic ice falls to historic lows. Human-caused climate change is altering the stable environment upon which we have relied in choosing where to live and deciding how to build our homes, how to lay out our infrastructure and how to develop our economy. This should be an election issue of the first magnitude.

Apparently under sway of the woefully mistaken notion that environmental protection and economic health are competing goals, the national Republican Party has decided that it is in its interest to take an extreme anti-science position on climate change. In fact, as Sandy should be making clear, our economic health (not to mention our personal safety) is highly dependent on stable climactic conditions. The economy is not thriving when the nation's airports are shut down, Lower Manhattan is under water, and millions of people are without electricity.

They're aliiiiive! (Really. They're alive.)

By Associate Professor Justin Levitt

Every year, late October brings pumpkin pie and horror movies and reports of deceased voters. The reports are, inevitably, spooky, with a hint of the comic macabre. And they are often followed by proposals to slash the voter rolls, with the  equivalent of an electoral chainsaw.

But now that the cobwebs have been brushed away in the clearer light of a November morning, most of the specters have vanished. Turns out that the undead hordes are too busy terrorizing your Tivos to be stealing your elections.

Most allegations of dead voters rely on attempts to match large computerized databases of dead people to large computerized voter rolls. And they fall prey to three basic fallacies.

First, bad data. Sometimes people listed as dead are not really dead. Investigative reporters at Scripps-Howard have discovered that the Social Security's Death Master Index, one of the most-used registries in the country, falsely announces the deaths of nearly 1,200 living Americans per month. Think of these legitimate voters as buried alive.

And sometimes, people listed as voting did not really vote. Election records are imperfect. In the press of a busy day at the polls, people sometimes sign the wrong line of a pollbook. And in the press of a busy canvass after the election, officials sometimes hit errant keystrokes, recording a vote that a deceased individual did not actually cast. Think of these legitimate souls resting peacefully, without braving the lines at the polls.

Second, bad matching. These reports often rely on comparing names and birthdates. But in any large pool of records, it's surprisingly common for two different people to share the same date of birth. Statistics prove that if you've got 460 people named "Michael Myers" in your population, it's virtually guaranteed that two will share the same date of birth. Which means that in millions of computer records, Michael Myers, dearly departed, may not be the Michael Myers casting a ballot. Florida governor Rick Scott was actually purged from the rolls in 2006 by such an error.

Third, bad timing. Though the dead rarely vote, voters do sometimes pass away. There have been reports of voters casting early votes or absentee ballots, and then shuffling off this mortal coil.

Take away the mistakes and misinterpretations, and you take away most of the howling behind the dead voter allegations. When real researchers spend real time following up on the claims, they leave at most a handful of oddities unanswered, almost exclusively in the absentee system. An enterprising reporter dug deep into the St. Louis -- St. Louis! -- rolls in 2007, and every single suggestion of gravesite voting evaporated. Sometimes the follow-up dispels the ghosts entirely.

There is more legitimacy to the notion that registered voters remain on the rolls after they die -- not that they cast ballots, but that the records linger. The volume of deceased registrants is also often overblown, for all the reasons above, but the leftover records do end up amounting to more than a handful. When election officials do their job well, these records are removed from the rolls, slowly and deliberately and in the off-season, with safeguards to ensure that no legitimate voter is caught up in the sweep.

That sort of careful list maintenance is a far cry from the hurried and harried last-minute purges urged by the purveyors of dead voter tales. Overbroad actions in the waning days of an cycle can only undermine the integrity of a election by jeopardizing the rights of real, live, eligible voters. And that is what's really scary about the dead voter stories of late fall.

Do Ballot Initiatives Foster the Darker Side of Political Spending?

By Associate Clinical Professor Jessica Levinson

Californians will soon go to the polls to weigh in on no less than eleven ballot initiatives. These initiatives could change the law on everything from the death penalty to the labeling of food.

I have previously written here about the pitfalls of the initiative process. This mechanism of direct democracy, designed to guard against the power special interests held over our elected officials, is now similarly controlled by special interests. Money is the driving factor behind which proposals qualify for the ballot.

Large sums are spent not only to pay signature gatherers to get proposals placed on the ballot but also to support or oppose those measures once they qualify for the ballot. One need only to open the mailbox or certain websites, or turn on the television or radio, to see the enormous amounts of money being spent to attempt to sway voters on these eleven initiatives.

Last week I wrote about a large donation, $11 million to be exact, given by an Arizona non-profit corporation to two ballot measure committees in California.

Marriage Equality Populism

By Associate Professor Douglas NeJaime

On November 6, voters in Maine, Maryland, and Washington will decide whether to allow same-sex couples to marry. In 2010, Maine voters repealed the marriage equality law that lawmakers had passed and the governor had signed. This time Mainers will be the first in the country to affirmatively vote on same-sex marriage. In Maryland and Washington, voters are being asked whether to approve or reject the marriage equality laws state lawmakers passed earlier this year. In all three states, recent polls suggest that marriage equality may win.

Of course, this would mark a game-changing moment in the political battle for same-sex marriage. But it would also significantly impact the legal battle raging in the courts. Currently, the U.S. Supreme Court is considering whether to weigh in on both the federal Defense of Marriage Act (DOMA) and California's Proposition 8, the state constitutional ban on same-sex marriage. Advocates at the leading LGBT legal organizations warned against the federal challenge to Proposition 8, worried about its uncertain fate at the Court. Throughout the litigation, they have worked - along with the City and County of San Francisco and prominent constitutional law professors - to frame the case as one about the unique situation in California. The Ninth Circuit agreed, finding that California, which allowed same-sex couples to marry before taking that right away and which provides a comprehensive domestic partnership system with the state-law rights and benefits of marriage for same-sex couples, did not have a legitimate interest in restricting marriage. Under the Ninth Circuit's holding, determinations regarding the constitutionality of other states' marriage bans require additional litigation. LGBT movement advocates, therefore, are hoping the Justices will pass on the invitation to review the Ninth Circuit's decision.

But in the event the Court takes the case, advocates have been doing everything they can to change the landscape of marriage equality before the Court decides. The more states that recognize same-sex couples' relationships as marriages and the more same-sex couples who get married, the more comfortable the Court - or at least Justice Kennedy, who holds the presumptively decisive vote - may be finding state marriage prohibitions unconstitutional. Advocates secured marriage equality in New York in 2011, and they are pursuing the cause in other states, through both litigation and legislation. If Maine, Maryland, and Washington begin to allow same-sex couples to marry, more states will move into the marriage equality column and many more same-sex couples will have legally recognized marriages. This may do much to move the Justices.

Disability and Voting

By Associate Dean Michael Waterstone

My primary research area, disability law, typically doesn't garner a lot of headlines or attention in presidential elections. There was a National Forum on Disability Issues in September of 2012 where both candidates were invited, but neither showed up (President Obama was represented by Ted Kennedy, Jr. and Governor Romney was represented by Rep. Cathy McMorris Rodgers (R-WA)). In a way this is understandable -- disability is a less contentious civil rights issue than some other areas. It may just be a perception that there is less to fight about (and a good fight is what really draws media attention).

But there are certainly many important issues relevant to people with disabilities that are at stake in this election. A major one is health care. The provision of the Affordable Care Act that stops insurance companies from denying coverage based on preexisting conditions can help people with disabilities move in and out of the labor force without losing their health insurance. This approach, I have argued elsewhere, is part of the explanation of the higher rate of veterans with disabilities, who have access to the VA for some healthcare services. Governor Romney seemed to suggest that his healthcare proposals would also cover people with preexisting conditions, but most analyses I have seen refute this, at least to the extent that it would help people with long term disabilities be more fluid in and out of jobs. Another issue of importance to the disability community is the ratification of the United Nations Convention on the Rights of Persons with Disabilities. President Obama signed the treaty and has urged ratification; as far as I could find, Governor Romney has taken no public position on the issue.

But in this blog post, I'd like to focus on an issue that comes before both of these -- voting for people with disabilities. Given the recent focus on the administration of elections (mostly, as my former colleague Rick Hasen has profiled, based on hazy and unsubstantiated claims of voter fraud), this is timely.

Prop. 35 CASE Act Undermines Victims' Rights

Professor Kathleen Kim, Kevin Kish and Cindy Liou

This op-ed originally appeared in Pacific Standard.

This November, voters will consider Proposition 35, also known as the "CASE Act" for "Californians Against Sexual Exploitation." The name of the law is designed to draw automatic support: Who, after all, would be in favor of sexual exploitation? The initiative's supporters, who include concerned citizens and former Facebook executive, Chris Kelly, are committed to increasing fines and prison sentences for certain forms of sex trafficking, and their intentions are beyond reproach. Unfortunately, what the CASE Act actually does is to tinker inexpertly with California's comprehensive laws combating all forms of human trafficking, laws that have served as a model for states across the nation. For over a decade, we, the authors have collectively assisted hundreds of trafficking survivors assert their rights in criminal, civil and immigration actions. Our experience informs us that by taking a predominantly criminal enforcement approach and conflating human trafficking with sexual exploitation, the CASE Act, however unwittingly, will change our current anti-trafficking laws in ways that disempower the actual survivors of human trafficking.

When the 13th Amendment to the United States Constitution was adopted in 1865, our nation made a simple promise of commanding power: "Neither slavery nor involuntary servitude... shall exist within the United States, or any place subject to their jurisdiction." That promise is still being tested. Every year, the State Department estimates that tens of thousands of men, women and children are trafficked to this country - and between the states - and put to work against their will. California is a major point of entry and a destination for traffickers and their victims, who are forced to work not only in the sex industry, but also in garment factories, agricultural fields, construction sites, hotels and restaurants, and as domestic servants in our neighbors' homes.

Some contemporary trafficking cases involve conditions much like the chattel slavery abolished by the 13th Amendment, in which human beings were bought and sold as property. Still more cases involve psychological coercion, deception or fraud: depriving people of liberty by convincing them that harm could come to them or their loved ones if they stop working.