• November 18, 2016

    by Katie O’Connor

    This year, for the second time in sixteen years, the winner of the national popular vote tally will not be the winner of the Electoral College vote and will not, consequently, be the next president of our country. In other words, this year, for the second time in sixteen years, the candidate who received the most votes from American voters will not win the election. This can and does happen, of course, because of the Electoral College system.

    There are many proffered explanations for why the Electoral College was created and maintained and none of them are particularly flattering to our democracy. The racist roots of the Electoral College are obvious. At the time our constitution was created, representatives to the U.S. House of Representatives were apportioned based on the three-fifths compromise, which counted each slave as three-fifths of a person for purposes of apportionment. This allowed for increased representation in southern slave states even though slaves could not vote. Subsequently, each state was given a number of electors to the Electoral College equivalent to the state’s two senators plus its number of representatives, furthering the skewed representation by slave states.

    Though it may not have been the reason the Electoral College was created, it soon became equally obvious that the institution furthered a sexist agenda as well. In a direct national popular vote system, a state could double its potential influence in an election by extending the franchise to women. With the Electoral College, though, a state would have the same influence regardless of how many people voted. Thus, the Electoral College disincentivized expanding the franchise and allowed for the continued disfranchisement of women with impunity.

  • November 14, 2016
    Guest Post

    by Arthur Bryant, Chairman, Public Justice

    While everyone waits to see how the election changes the Supreme Court, one thing is clear: workers’ rights hang in the balance. The Court is soon going to have to decide whether employers can use mandatory arbitration clauses in employment contracts to ban—and eliminate—workers’ collective and class actions.

    Four cases now up for review raise that question. All involve employees claiming they were cheated out of overtime pay—and employers arguing they cannot be sued because mandatory arbitration clauses in their employment agreements prohibit collective and class actions.

    Two federal circuits held employers can ban those actions. Two ruled they cannot. If the Court does not review any of these decisions, more are on the way. Suits raising the question are pending in five more federal courts of appeal.

    The four cases now before the Court show the arguments and the issues.

    In National Labor Relations Board v. Murphy Oil USA, Inc., the NLRB says the Fifth Circuit made an enormous mistake when it held the employer could use its mandatory arbitration clause to bar all workers at over 1,000 stores in 21 states from pursuing collective actions against it under the Fair Labor Standards Act and class actions in federal and state court. The clause says each worker has to proceed individually and alone.

    The NLRB insists that violates section 7 of the National Labor Relations Act, which gives employees “the right to…engage in…concerted activities for the purpose of…mutual aid and protection.” The Supreme Court previously said these “concerted activities” include actions pursued in “administrative and judicial forums.” Because the NLRB is charged with enforcing America’s labor laws, its interpretation is entitled to substantial deference. That interpretation stresses the importance of what is at stake: “the right to engage in collective action – including collective legal action – is the core substantive statutory right protected by the NLRA and the foundation on which the Act and Federal labor policy rest.”

  • November 10, 2016

    by Katie O'Connor

    Putting politics aside (which I acknowledge is not the easiest thing to do right now), most people felt some sense of relief on the morning of Nov. 9, 2016. We did not wake up to a nail-bitingly close election, to a plane full of lawyers flying to Florida or Ohio or Pennsylvania, to lawsuits being filed over rigging and fraud and voter suppression. We did not wake up to a nightmare scenario like that of Nov. 8, 2000. Broadly speaking, our election system functioned the way it is supposed to function and the results reflected the votes cast by the people.

    But that is only the top line of the story. Beneath the surface, myriad issues deserve our attention.

    This was the first election in over 50 years where voters were without the protections of Section 5 of the Voting Rights Act and that almost certainly took its toll. Section 5 required federal approval for proposed voting changes in states and local jurisdictions with a history of discriminatory voting practices. This put the onus on the states to justify restrictions on the right to vote and put time on the side of voters whose rights would be protected until the state had proven that new rules would not have a discriminatory effect. The Supreme Court’s 2013 Shelby County v. Holder decision, striking down Section 5, opened the door to onerous voting restrictions and many states wasted no time passing them. As a result, voters in North Carolina, Arizona, Texas, and many other states had to navigate new burdens during this election and many citizens were undoubtedly disenfranchised as a result. In the coming months, we must determine how these laws ultimately affected the right to vote and whether the Voting Rights Act needs to be strengthened to prevent it from happening again.

    This was the second election in sixteen years that resulted in a split between the winner of the national popular vote and the winner of the Electoral College vote. As previous candidates in this scenario have done, the candidates this year knew the rules of the game and accepted that the Electoral College ultimately decides the election. Nevertheless, this result should induce us to revisit the fairness and utility of the Electoral College. There are valid arguments on both sides of the debate, but they all deserve a fair hearing.

  • November 10, 2016
    Guest Post

    by Karla Gilbride, Cartwright-Baron Staff Attorney at Public Justice

    In the aftermath of Tuesday’s surprising election results, several key themes seem to be emerging: a large segment of the population is frustrated with the status quo and is demanding change and people from across the political spectrum are concerned about the divisiveness of the campaign and are looking for ways to come together. In the spirit of moving forward on a bipartisan basis, I suggest that the time is right for Congress to take action to curtail forced arbitration provisions.

    Forced arbitration provisions are those “agreements” that we all make when we purchase products or download software or apps, usually found in the small print on product packaging or in the Terms of Service we accept during the download process. These provisions deprive consumers of the right to sue a corporation in court if a dispute later arises about the product or service and they usually also ban consumers from joining together with similarly affected people to bring class actions.

    The vast majority of consumers across the political spectrum find these provisions unfair. In a 2015 study, the Pew Charitable Trust found that 95 percent of consumers surveyed wanted to be able to pursue a dispute against their bank in court and nearly 90 percent of consumers (including 93 percent of Republicans) wanted the right to participate in a class action.

    And based on what they have had to say in their recent opinions, some federal judges find forced arbitration unfair too. But just like the consumers who accept these ripoff clauses as a condition of obtaining basic goods and services, the judges do not feel they have any choice but to enforce them—that is, until Congress steps in and changes the law.

  • November 8, 2016
    Guest Post

    by Nicholas Muellerleile

    It has been a year of distraction and scandal, to the point where the abstract strangeness of it all no longer registers. The extended vacancy on the Supreme Court would be the biggest political embarrassment of the year, if this were even close to being a normal year. Now, months later, we sit with a Scalia-shaped hole both on the bench of the nation's highest court and in our hearts, with seemingly no end in sight. How did things end up like this? What, if anything, can be done about it? Minnesota Sen. Amy Klobuchar and former Vice President Walter Mondale addressed these issues in a recent forum held at the University of Minnesota Law School, organized jointly the American Constitution Society’s Minneapolis-St. Paul Lawyer Chapter and Student Chapter at the University of Minnesota Law School, along with the University of Minnesota Law Democrats.

    One theme running throughout the forum was the notion that recently, in Congress, something has changed. Rote tasks, ministerial appointments and other basic functions of government have become political acts. Sen. Klobuchar told the audience of the struggles to pass the budget in late 2012. The end result was that she spent New Year's Eve between Sens. Reid and McConnell. “No Girl wants to do that”, she told the audience. Former Vice President Mondale called much of the current partisanship “childish” and spoke of his experience in the Senate. Qualified nominees for the court were passed with near unanimity. Even the appointment of William Rhenquist was, by comparison with today, an example of democracy in action, clearing the 66-vote threshold required.

    The voting threshold was one area where the speakers had different views. The supermajority requirement has been relaxed to 60 votes to confirm a Supreme Court Justice and there seemed to be some flexibility as to whether even that threshold should be lowered. Both Sen. Klobuchar and Former Vice President Mondale agreed that there was something special about the Supreme Court, something that required more than just the simple majority required for other appointments. Both speakers also seemed willing to admit that in light of the present deadlock, even 60 votes might be too high. But then what? 55? 53? Sen. Klobuchar stated that she would not be opposed to having the Supreme Court appointment be made a simple majority vote, “in the event it becomes a Constitutional crisis.” When pressed about this during the Q & A session, Sen. Klobuchar made clear that the issue was about political gridlock, not about trying to enforce different rules depending who would win the election. “You have got to live by the rules you set up,” Vice President Mondale added.

    Even in a forum discussing the Supreme Court vacancy, the presidential election loomed large. Both the speakers and the audience recognized that the stakes were high and there were murmurs of tense acknowledgement when Sen. Klobuchar commented that “this really is about our democracy.” In spite of all the rhetoric from some lawmakers, Sen. Klobuchar felt that there might be a chance of Garland getting appointed during the Obama lame duck session. Then again, maybe he will not be. After all, stranger things have happened this year.