Tuesday, November 29, 2016

Trump Again Suggests Limits on Free Speech - This Time on Flag Burning

Years ago the United States Supreme Court rules (quite correctly) that the burning of the American flag was an expression of a political idea  protected by the First Amendment's Free Speech Clause. Yesterday President-Elect Trump threw water on that decision, declaring that anyone who burns the American flag should be imprisoned for up to one year.  CNN reports:
(CNN)President-elect Donald Trump proposed on Tuesday a penalty -- including possible jail time or loss of citizenship -- for burning the American flag, in spite of two US Supreme Court rulings that protect the act under the First Amendment as a form of free speech. "Nobody should be allowed to burn the American flag -- if they do, there must be
consequences -- perhaps loss of citizenship or year in jail!"  
 The Supreme Court has twice affirmed the right to desecrate the American flag as a form of free speech -- a historically contentious issue -- in cases before the high court in 1989 and 1990. In the 1989 case "Texas v. Johnson," the Supreme Court ruled 5-4 that flag burning was a form of "symbolic speech" protected by the First Amendment. The ruling came after an appeal from Gregory Johnson, who had been convicted by a Texas court of violating a state law that prohibited the "desecration of a venerated object" such as the US flag. The following year, in "United states v. Eichman," the top court again affirmed the right to burn the flag when it ruled 5-4 that the Flag Protection Act of 1989 -- passed by Congress in response to the Johnson decision -- was unconstitutional.  
It's not immediately clear what prompted Trump's tweet Tuesday morning, though the national discussion of respect for the flag has been restarted in part following a flag burning November 10 on the campus of Hampshire College in Amherst, Massachusetts, as part of a post-election protest. The university then decided to stop flying the American flag at the campus, which also infuriated some members of the community.  
Steve Vladeck, CNN legal analyst and professor at the University of Texas Law School, said Trump's suggestion that citizens possibly be expatriated as a penalty is also a non-starter. "In addition to ignoring the Supreme Court's clear teaching that flag burning is constitutionally protected speech, Mr. Trump's tweet also casually suggests that citizens should lose their citizenship as a 'penalty' for such acts," Vladeck said. "Even if flag burning wasn't protected, it would still be unconstitutional to deprive someone of their citizenship without some voluntary act on their part to renounce their allegiance to the United States or pledge fealty to a foreign sovereign."   
Trump's opposition to the protection of flag burning puts him at odds with conservative leaders like Senate Majority Leader Mitch McConnell and deceased Supreme Court Justice Antonin Scalia, whom Trump has praised as a "brilliant Supreme Court Justice, one of the best of all time." 
Trump is actually proposing a very dangerous idea...that speech should be disallowed because of the objectionable views contained in that speech. That is an idea that is anathema to Free Speech and suggests a President-Elect who harbors authoritarian impulses.  This comments follows a declaration by Trump during the campaign that libel protection should be changed so critics of public figures can be more easily hauled into court.  That suggestion would have a devastating effect on Americans' free speech rights.

Monday, November 28, 2016

Star Reports on New Indiana Civil Forfeiture Lawsuit

Earlier this year, the Institute for Justice filed a legal challenge to the constitutionality of Indiana's civil forfeiture law.  That lawsuit, filed in federal court, has survived a motion to dismiss and is proceeding. has a story on the filing of a second civil forfeiture lawsuit:
Today's Indianapolis Star

Criminal defense attorney Jeff Cardella wears his beliefs on his sleeve, in the form of a pair of large, pastel yellow "Don't Tread On Me" cuff links.
In between explanations of his libertarian principles, the 34-year-old Cardella  said his clients may not always be the most sympathetic individuals, but they deserve their rights, too.
Cardella filed a federal class-action lawsuit this month, on behalf of Leroy Washington, whose vehicle was taken by police in September. Washington was arrested and charged with resisting law enforcement, dealing in marijuana and obstruction of justice.
The suit argues that the Indiana law that allows police to seize property from alleged drug dealers and others, regardless of their guilt or innocence, violates criminal defendants' constitutional right to due process.
It "allows the executive branch to seize and hold the vehicle of an owner for several months without affording the owner the right to a postseizure preforfeiture hearing to challenge the seizure," according to the complaint.
It's an argument that could, if it prevails in court, have a sweeping effect on law enforcement.
The suit, limited specifically to vehicles in IMPD possession, does not seek monetary damages. Rather, Washington wants law enforcement to give back his vehicle, and the vehicles of countless individuals whose property was seized under Indiana's civil forfeiture laws.
Cardella also seeks a reduction in the period of time law enforcement can hold property without stating a reason for seizing it.
"It's a matter of protecting the constitutional rights of my clients," said Cardella, a professor at Indiana University's Robert H. McKinney School of Law, who is vehemently opposed to "unjust government taking."
Marion County Prosecutor Terry Curry, Mayor Joe Hogsett and IMPD Police Chief Troy Riggs are named defendants in the complaint.
Curry told IndyStar that there are a variety of reasons why the law, as it exists today, is reasonable and constitutional.
"There are protections built in the law to protect innocent people," Curry said. "An aggrieved party could ask for an emergency hearing to get their property back."
The news reporting suggests that the Cardella lawsuit is more about a challenge to the lack of due process, which is certainly a strong claim.  But ultimately the legal attack on civil forfeiture may knock out any Indiana civil forfeiture law whatsoever.   The state constitution mandates that proceeds from "all forfeitures" go to the Common School Fund which provides low cost loans to public schools.  It is not clear that any forfeiture law, that diverts money away from that fund and to law enforcement, would be permitted under Indiana's Constitution.  Unfortunately, issues related to standing have made challenging the laws on those grounds problematic.

Marion County Prosecutor Terry Curry is quoted in the article.  Curry, a Democrat, has greatly expanded the use of civil forfeiture under his tenure.  You no longer have to be charged with a crime in Indianapolis to have your property seized and be subject to a Curry civil forfeiture lawsuit.  At least with his predecessor, Carl Brizzi, civil forfeiture was mostly limited to drug offenses and people who were being charged with a crime.  You would think liberty-minded local Democrats would be outraged by the trampling of civil liberties in the county.  Their silence on the matter is deafening.

I have written numerous times on this matter.  Here are some of those articles:

Saturday, October 24, 2015, Republicans in Michigan Lead Effort to Curb Civil Forfeiture Abuses

Tuesday, July 23, 2013, Civil Forfeiture Critic Wins Right to Proceed With Malicious Prosecution Case; Notice Pleading Still Rules in Federal Court

Wednesday, April 6, 2011, Judge Tosses Out Civil Forfeiture Lawsuit, Expresses Doubt Civil Forfeiture Law is Constitutional

Sunday, August 15, 2010, Civil Forfeiture Misdeeds; The Role of the Attorney General

Thursday, July 22, 2010, Indiana Civil Forfeiture Law - Where is the Money Going?

Wednesday, November 23, 2016

Computer Scientists Suggest Possible Tampering, Urge Clinton to Challenge Election Results

CNN reports:
Hillary Clinton's campaign is being urged by a number of top computer scientists to call for a recount of vote totals in Wisconsin, Michigan and Pennsylvania, according to a source with knowledge of the request. 
The computer scientists believe they have found evidence that vote totals in the three states could have been manipulated or hacked and presented their findings to top Clinton aides on a call last Thursday. 
The scientists, among them J. Alex Halderman, the director of the University of Michigan Center for Computer Security and Society, told the Clinton campaign they believe there is a questionable trend of Clinton performing worse in counties that relied on electronic voting machines compared to paper ballots and optical scanners, according to the source. 
The group informed John Podesta, Clinton's campaign chairman, and Marc Elias, the campaign's general counsel, that Clinton received 7% fewer votes in counties that relied on electronic voting machines, which the group said could have been hacked. 
Their group told Podesta and Elias that while they had not found any evidence of hacking, the pattern needs to be looked at by an independent review.
    A switch of approximately 100,000 votes (a tiny fraction of the approximately 126 million votes) in those three states and Hillary Clinton would have won the electoral vote and the election.

    Tuesday, November 15, 2016

    Indianapolis Council Leaders Use Vote as "Cover" to Fully Soak Taxpayers

    Indianapolis residents pay some of the highest local taxes in the state.  Now  Indianapolis Council leaders have decided to soak working men and women even more by maxing out the council's authority to raise the transit tax.  The Indianapolis Star reports:
    Previously reticent elected officials say they fully support an income tax hike for expanded public transit now that voters approved a measure on Tuesday’s ballot.
    City-County councilors said the wide margin by which the referendum passed, 59.3 percent to 41.7 percent, lets them push for the maximum tax allowed.   
    "I'm prepared to pass it at the full amount," said Council President Maggie Lewis. "And I think that by passing by such a large margin it gives a lot of councilors cover to do so."
    The council still has the option of not approving any tax or passing one that is smaller than the 0.25 percent maximum tax, which equals $130 a year for Marion County resident earning $50,000 annually.
    Of course, fiscally responsible Republican leaders on the council opposed the maximum soaking of Indianapolis taxpayers.  Kidding.
    Republican  City-County Councilor Jeff Miller said voters made their preference known loud and clear.   
    “I would say that is a convincing enough (referendum vote) margin for the full tax,” said
    The "logic" employed by Lewis and Miller is patently absurd. How does the margin of the referendum passing, a measure in which voters were simply giving the authority to the council  to adopt a tax to help mass transit, have anything to do with how much those voters wanted the tax raised?  Maybe voters assumed that Indianapolis City-County councilors would act as responsible stewards of our tax dollars?  Of course, if they followed local politics, those voters should have known better.

    Of course it is absurd to claim that a positive vote of 59.3% to 41.7%, a margin which translates into a victory of just a few thousand votes, is a huge electoral victory.

    I have long heard Indianapolis council members argue that the State Legislature should not limit the ability of Indianapolis to raise its own taxes.  This is yet another example of why the Indiana General Assembly should never ever do that.  Indianapolis' leaders have time and time again shown that they will irresponsibly max out any taxing authority given to them.

    But at least the huge tax increase will go to making great improvements to the bus system, right? Wishful thinking at best.  Twice in the last few years, Indianapolis greatly increased the local public safety tax expressly to increase the number of Indianapolis police officers.  Yet Indianapolis has fewer police officers than they had before those tax increases.

    Unfortunately the Indianapolis Star article simply reports as true the claims regarding improvements that will be made to the bus system with the maxed out tax, all the while ignoring the fact that time and time again Indianapolis officials raise local taxes with the promise to do certain things that never ever get done.

    We know from Indianapolis' entrenched two party pay-to-play political system that only a fraction of the tax money raised will go towards improving the city's mass transit system.  Much, if not most, of those tax dollars will end up in the pockets of politically-connected contractors and others who regularly benefit from Indy's corporate welfare culture...

    If this past election teaches us anything, it should be that voters are tired of elected officials using their positions to make the elites more wealthy at the expense of hard working men and women who are continually asked to pay higher taxes.  Our council leaders should show some courage and stand up for local taxpayers and against the elites who want to soak them with ever more higher taxes.

    Friday, November 11, 2016

    Donald Trump Scores Historic Upset, Demonstrates the Power of Populism

    On Tuesday, Donald Trump scored an historic political upset winning the Presidency with 290 electoral votes.   Although Hillary Clinton narrowly won the popular vote, she could only garner 232 electoral vote.  Trump's victory included successes in Pennsylvania, Michigan and Wisconsin, states that were seen to be, at best, on the outskirts at being obtainable by Trump.

    But the White House wasn't the only success Republicans enjoyed on Election Night.  Republicans won competitive Senate races all over the country, netting a loss of only two in that chamber despite the enormous hurdle of defending many more seats. Republicans retain control of the Senate with a 52-48 margin.  The Republicans lost only a handful of seats in the House, retaining a  signficant majority in that body.

    Trump's victory defied the odds.  Many commentators suggest Trump's victory is the biggest upset since the 1948 Truman-Dewey contest which was won by President Truman, despite polls suggesting Dewey would win in a landslide.  But polling in 1948 was in its infancy.  Polling in 2016 is much more sophisticated and the number doing has increased substantially.  Although Trump led in some national polls, in the key state polls, the only thing that counts with our electoral college system, all polls pointed to a Clinton Electoral College win. ( Yours truly also missed the result.)  I think the Trump upset was bigger upset than the Truman victory in 1948.

    Of course, many Trumpkins insisted the polls were being "rigged."   The notion that all these independent pollsters got together to risk their reputations by putting their finger on the scale to show Clinton leading is pure silliness.  In reality, this election demonstrated the Achilles Heel of polling - turnout.  No matter how hard pollsters try to take into consideration turnout by identifying "likely voters," the methods employed have never worked very well.  In 2016, much like 1994 and 2000, Republicans went to the polls while Democrats, especially African-Americans, a key Democratic constituency, stayed home.  As a result, the polls those years, and this year, were way off.

    It is interesting that it didn't seem to matter if Republicans embraced Trump or ran away from him, they didn't pay a price at the polls.  They won nonetheless.

    Some other observations.  Trump's victory shows the power of populism.  I have long argued that the Republicans needed to stop kowtowing to big corporations and the Chamber of Commerce and start paying more attention to working men and women.  Main Street and less Wall Street. Trump showed that the populist message was shown to be extraordinarily popular.  I am hoping that filters down to the state and local level so we can knock off some of the pay-to-play corporate welfare schemes that are soaking taxpayers.

    As a Never Trumper, my problem with Trump wasn't so much his message (though his hostility to free trade and immigrants is something I will never embrace) but the messenger.  A cursory comparison of Trump's words versus his actions showed him to be a hypocrite time and time again. Although Trump complains about Hillary's dishonesty, his supporters ignored Trump's own extreme dishonesty.  During the campaign, I, accurately, called Trump a lifelong con man.   Certainly there is no doubt that Trump is a sexist and may well be every bit the sexual predator that Bill Clinton was and probably still is.  Probably the most appalling claim to swallow is that Trump who has a lengthy history of, at every opportunity stiffing his employees and the small business owners with which his companies contract, is the defender of the American worker.

    All those complaints about Trump though have to be put aside while he is given the chance to succeed that he earned Tuesday night.  That does not mean,  however, that cherished American principles should be put aside. There are non-negotiables.  During the campaign, Trump expressed a preference for authoritarian rule.  He praised dictators who kill their political opponents and repress freedom.  Trump talked about if he won using the instruments of government to go after his political enemies, most prominently jailing his opponent Hillary Clinton.   He said Americans have too much freedom of speech and that their right to criticize public officials should be sharply curtailed by changing libel laws.  Trump demonstrated he does not even have a high school civics understanding of the Constitution and cares not one bit about the constitutional limits on the power of the Presidency.   American freedom and civil liberties is non-negotiable in my book.  Trump cannot cross that line and try to become another Mussolini.  The reference to the Italian dictator is nothyperbole.  I think it quite possible that Donald Trump, who openly envies the dictators, may try to adopt dictatorial powers.

    Finally, an observation about the Democrats.  Going into the 2016 election, Democrats insisted that the Republican Party was failing and needed to reinvent itself if it was to survive  Yet, the record showed Republicans enjoying extraordinary success, especially since Obama's election in 2008.  On the evening of the 2016 election, the GOP held a record number of Governorships, state legislative chambers, and controlled both houses of Congress, the House of Representative by a margin not seen in some 80 years.  But by having the White House, the Democrats were lulled into thinking that everything was fine with their party despite an electoral record that demonstrated otherwise.  Now that the Democrats have lost the White House, and are about to lose the Supreme Court, they may finally be answering that wake up call they have been ignoring for the last several years.

    Monday, November 7, 2016

    Hillary Clinton Set to Win the White House Tomorrow Night

    This election is one of the most difficult presidential elections I have ever attempted to predict.  I don't think the outcome is in doubt - Hillary Clinton should emerge tomorrow night as victorious, a close but solid win.  But attempting to predict the outcome in individual states is difficult this time as there are so many states with polls well within the margin of error.

    My map has Hillary Clinton with 323 electoral votes, Donald Trump with 215.  I expect the map to represent very closely the 2012 Obama-Romney outcome.   Differences are I predict that Hillary Clinton wins North Carolina.  On the other side,  I expect that Trump will win Iowa and Ohio.  The latter prediction I may regret.  Given the early voting in the state, I think the Buckeye state may offer an upset, albeit a slight one, by going for Clinton.  But right now though I'm sticking with Trump.

    Florida is a tossup.  Trump has unusual popularity in the Sunshine State among Republicans.  But I think the Latino vote is going to play a major role there in pushing the state into the Democratic column again in 2012.

    I think there is an outside chance Clinton takes Georgia and Arizona.  I can't go against history though.  I'm predicting Trump will eke out a victory in that state.

    I am predicting Clinton takes New Hampshire by a few points and Nevada and Colorado by a few more.  As far as the "rust belt" states like Pennsylvania, Michigan, and Wisconsin, states that Trump counted on winning, well they won't be that close.  Trump never really had a chance in those states.

    I would cite to three factors as sinking Trump's chances tomorrow:  1) Hillary Clinton's much superior organization; 2) Heavy Latino turnout for Clinton; and 3) Republicans who never got on the Trump train.  Regarding the latter, Trump needs about 92% of Republicans to support him.  I think it will be about 82% tomorrow.   The Democrats will be more united behind their nominee

    Thursday, November 3, 2016

    RCP State Averages Show 269-269 Electoral College Deadlock

    With three weeks to go, the Hillary Clinton for President campaign has ran out of gas in the marathon race for President. Crew members are attempting to push the Clinton car over the finish line. But the Trump car appears to be closing fast.

    Every few days, I adjust my Electoral College spreadsheet based on the most recent state polls.  This morning, I moved Florida and Nevada over into the Trump column.  North Carolina, where Clinton polled ahead for weeks is now dead even according to the Real Clear Politics polling average.  You
    move NC's electoral vote over into the Trump column and the result is a staggering 269-269 tie, which means no candidate receives the necessary 270 electoral votes necessary to be elected President.  That would mean, under our Constitution,the U.S. House of Representatives decides the election with each state delegation will cast one vote for President.  The Republicans have a majority in the House, even more so when you look at majorities on a state-by-state basis.  Thus, the GOP dominated House would pick the President.

    You also have the possibility that independent Evan McMullin will win his home state of Utah and thus give him that state's 6 electoral votes.  That would make him the third candidate that the U.S. House could consider when electing the President.  Certainly McMullin would be an attractive option for a lot of Republican House members.  But those GOP House members would face tremendous pressure to vote for Trump even if many see him as unqualified to be President.

    Let's look at even more possibilities. The Electoral College is made up of real life human beings, people selected by their party to elect the President.  What if Donald Trump narrowly wins the Electoral College but some of those GOP electors see him as unfit to serve and vote for Hillary Clinton instead...or someone who is not even running?  Clinton could be elected President even though she lost on Election Night.  Or what if Hillary Clinton narrowly wins the electoral vote count on November 8th and Trump throws some cash at Democratic electors to switch their vote to him come November?  I certainly don't believe Donald Trump is above such a maneuver.

    The last time we had a close electoral college vote was in 2000, when George W. Bush finished with 271 electoral votes and then Vice President received 267.  There didn't seem to be any attempt after that election to steal the support of electors, though one Gore elector did abstain resulting in a final tally of 271-266.

    I doubt that any of this will come into play.  My guess is that the polls are understating Clinton's support and that her electoral college vote total will be closer to 300 than 270.  Still it is interesting to ponder all the scenarios.

    One thing that is clear though.  Trump and Clinton are incredibly weak candidates who probably would have no chance were they not running against each other.