In Pursuit of Progressive Jurisprudence

Judge Jackson’s hearings proved, once again, that the political discourse of judging is dominated by pop-notions of “textualism” and “originalism.” Dahlia Lithwick was right to express concern at Senate Democrats’ “almost staggering inability to lay out any kind of theory for progressive jurisprudence, or even a coherent theory for the role of an unelected judiciary in a constitutional democracy.” That silence was not strategic--it simply reflects the reality that the public narrative of acceptable judicial “philosophy” remains a largely uncontested stronghold of the conservative judicial establishment.

ACS can, and must, help to change that. And we should start with a serious and sustained discussion about how to publicly create a well-rounded, wholistic approach to judging as a counterweight to conservative pop-judicial “philosophies."

We should not be surprised that conservative senators asked questions about Judge Jackson’s judicial “philosophy.” Conservatives have spent decades baking “textualism” and “originalism” into the public narrative of what it means to be a “good” judge. (Even Justice Kagan has quipped: “We are all textualists now.”) Without an alternative frame, Judge Jackson was vulnerable to attack no matter how she answered.

Her answer–that she employs a “methodology,” rather than a philosophy–was honest, accurate, and preferable. We do not want a Supreme Court of philosopher kings. And anyone who has seriously engaged in statutory interpretation–whether as a lawyer, judge, or legal scholar–will tell you that methodology is far more important than “philosophy.”

Multiple tools of statutory (or constitutional) construction may need to be employed–and if they cut in different directions, will need to be reconciled through public reasoning. This should not be a controversial proposition. At one point it certainly wasn’t. Justice White once wrote (joined by Justice O’Connor, then-Chief Justice Burger, and soon-to-be-Chief Justice Rehnquist): “[T]he circumstances under which courts should turn to legislative history and the weight to be accorded particular sources of history cannot be prescribed by inflexible canons of construction. Statutory interpretation requires a certain amount of freedom to choose the materials best suited to illuminating the meaning of the particular provisions at hand.” And certainly, as tools, text and original public meaning are often indispensable in statutory interpretation–which Judge Jackson acknowledged.

In contrast, as pop-judicial “philosophies,” textualism and originalism can be wooden, incoherent and inconsistent doctrines (just ask an “originalist” to square the modern First Amendment with the Alien and Sedition Acts of 1798). Puritanical adherence to textualism and originalism is pursuit of a fools’ gold: they glitter on first impression but lose their luster under any serious scrutiny. Justice White (and two chief justices of the Supreme Court) might have agreed: “I do not mean to endorse the simplistic view that the words printed in the United States Code can answer all questions regarding the meaning of statutes.”

More is needed to say what the law is: context, history, intent, meaning, and other tools employed by the common-law methodology that sits at the heart of our judicial system. Generations of common-law jurists, at every level of the judiciary, have employed judicial methodologies to choose the materials best suited to getting to the right answer for any particular issue at hand. That is good judging. That Judge Jackson recognizes this nuance will enhance the Court.

But nuance isn't an effective counterweight in the high-stakes drama of confirmation hearings and constitutional cases. “Methodology” lacks an “ism.” It’s not sexy. No one is writing about whether “methodology” is dead or undergoing a revival. The progressive legal community bears some responsibility for this: We haven’t created the space and public narrative of respect for the complexity of common-law judging. Into that vacuum, conservative media outlets and pundits decried Judge Jackson’s response because Americans supposedly “want” originalism, or textualism, or constitutionalism in their judges.

I don’t believe that's true; the public is just starved for choice. Progressive lawyers, academics, and activists need to help identify and strengthen a public counterweight to conservative pop-judicial “philosophies.” Judge Jackson’s confirmation hearings show just how far behind we are in the battle for the popular narrative. Let’s figure out how to catch up.

Conor Tucker (he/him) is an appellate litigator and a board member of the American Constitution Society’s Los Angeles Lawyers’ Chapter. Views expressed here are his alone and do not necessarily reflect those of his firm, his clients, or any organization to which he is a part.

Defending Democracy Starts at Home

Yesterday, when the House Select Committee on January 6th recommended criminal contempt charges for two more Trump advisors and castigated the Department of Justice for not pursuing criminal charges against former Trump Chief of Staff Mark Meadows, the Committee used its collective voice to urge leaders to marshal the same courage they are illustrating standing up for Ukrainian democracy to protect American democracy here at home. But will they listen?

The coordination amongst democracies to push back against Russia’s premediated and unprovoked invasion into Ukraine is astounding in its speed and effect, marshalling far-reaching economic sanctions designed to cripple the Russian economy and overhauling historic policies related to non-intervention.

Domestically, Russia’s military invasion is proving a unifying topic. President Biden found rare bipartisan approval in his State of the Union when he labeled Putin as a “dictator” and argued that “in the battle between democracy and autocracy, democracies are rising to the moment.”

Yet, when it comes to the democracy crisis here at home, there is no bipartisan consensus. This dichotomy is a tell-tale sign that Republican opposition to Russian aggression isn’t about protecting democracy, but about protecting geopolitical power. The House Select Committee on January 6th is case and point.

Since its establishment in July, the House Select Committee on January 6th has engaged in a deliberate investigation to understand what happened in the days, weeks, and hours before the January 6th attack on the U.S. Capitol.

The Committee has interviewed more than 300 witnesses, reviewed more than 30,000 documents, and followed-up on more than 250 substantive tips on their tip-line. It has also issued more than 52 subpoenas for records and testimony, including to high-ranking officials in former President Trump’s inner circle like Mark Meadows and Steve Bannon and has made recommendations to the Department of Justice to pursue criminal contempt charges against five former Trump administration officials for their defiance of those subpoenas.

Through their investigation, the Committee has made eye-dropping discoveries – including the existence of a conspiratorial PowerPoint offering suggestions for how Trump could overturn the 2020 election and declare a national emergency to stay in power and text messages that were exchanged between Supreme Court Justice Clarence Thomas’ wife, Ginni Thomas, and White House Chief of Staff Mark Meadows urging insurrection.

Although we haven’t seen all the evidence they’ve amassed, what we have seen is very troubling. So troubling, that earlier this month the Committee alleged in a court filing that President Donald Trump and his right-wing lawyer John Eastman were part of a “criminal conspiracy” to overturn the 2020 election.

These claims are chilling. Yet, there continues to be concerted efforts to downplay their severity and undermine the Committee’s work. Last month, the Republican Party censured the Committee’s two republican members, Representatives Liz Cheney and Adam Kinzinger, for their role investigating the January 6th attack, going on to characterize the January 6th riot as “legitimate political discourse.”

Efforts to stall the Committee’s work are also playing out in the courtroom. Earlier this month, the Republic National Committee filed a lawsuit, trying to stop the Committee from accessing donor data from the software company Salesforce, information the Committee argues is necessary to understand how the Trump campaign spread misinformation about the 2020 election and fueled violence that led to the U.S. Capitol attack.

This lawsuit is indicative of long-running attempts to use the courts to undermine the Committee’s work and whitewash the violence that we all saw on national television on January 6th. Unfortunately, these lawsuits have even found receptive ears in the judiciary. Take Justice Clarence Thomas. Earlier this year he was the lone vote in the Supreme Court trying to block the Committee from accessing pertinent records concerning the January 6th attack on the Capitol – records that we now know implicated his wife’s culpability.

What these leaders slamming the January 6th Committee’s work don’t seem to understand however is that the fate of American democracy and the fate of Ukrainian democracy are intricately interwoven.

Authoritarian countries, like Russia, have worked for years to sow chaos and undermine confidence in democratic elections across the globe because they knew it would advance their geopolitical aims.

In 2016, Russia meddled in our presidential elections. In 2020, Iran sent intimidating emails to Florida democrats purporting to be from the white-nationalist group the Proud Boys, the same group that played a leading role in the attack on the U.S. Capitol. And, it was Russian actors who claimed that ANTIFA members disguised as Trump supporters were the ones to storm the Capitol.

These do not equate to the gruesome military intervention Ukraine is suffering at Vladmir Putin’s hands. But the goals are not dissimilar, focused on overthrowing democracy, whether by external invasion or internal discord. If our leaders don’t take steps to support the January 6th Committee’s work and isolate those who refuse to cooperate with their investigations then not only are they playing right into Putin’s hands, but they are showing that regardless of their professed support for Ukraine, they really don’t care about democracy after all.

Get to Know Your State Attorney General; Their Work Matters More than You Know

This is the first piece in an eight-month long blog series aimed at highlighting state attorneys general and their work. Upcoming blogs will feature writings from former and current state attorneys general and their staffs.

State attorneys general (state AGs) hold an indispensable position in the U.S. legal system. Considered the chief legal officers of the states, state AGs are pivotal in protecting the public interest and upholding the rule of law. These public servants work on many issues that impact your life every day, and in most states, they are directly elected. This November, state AGs will be on the ballot in 31 states and territories, making 2022 a critical year in determining how your rights and the rule of law are protected for at least the next four years. And yet, there is too often a lack of awareness by voters about what state attorneys general do, and minimal media attention on candidates running for this important office.

State attorneys general represent the state and state agencies on both the state and federal levels. Also referred to as “the people’s lawyer”, state attorneys general work to defend and uphold the U.S. and state constitutions. The role of the state AG varies across jurisdictions but commonly consists of enforcing federal and state laws, proposing legislation, operating victim compensation programs, issuing formal opinions to state agencies, and acting as public advocates in areas such as consumer protections, worker protections, and antitrust regulation.

In just the last few months, state attorneys general around the country have:

In recent years, certain state attorneys general have started to do more work around criminal justice reform, racial justice initiatives, and more work addressing systemic disenfranchisement. Earlier this year, the former Virginia attorney general rescinded 58 legal opinions that perpetuated racism, making it clear that those “legal opinions do not reflect the Virginia of today.”

Sometimes state attorneys general join forces to act on nationwide issues. We’ve seen state AGs form bipartisan coalitions to call on the FDA to regulate e-cigarettes and oral nicotine products, fight impersonation scams, and apply fair sentencing reforms to low-level drug offenses. However, state AGs do not always work together or agree on how to address an issue.

A state attorney general’s priorities and use of resources can differ enormously depending on who occupies the office. There are often stark differences between the work progressive state AGs and conservative state AGs do. For example, in Arizona, the state AG suggested that the state was under “invasion” by undocumented immigrants, in attempts to begin deporting them without federal immigration enforcement. In contrast, the Massachusetts AG endorsed the Work and Family Mobility Act, expanding rights to undocumented immigrants by allowing them to obtain state driver’s licenses.

State attorneys general play a key role in the U.S. legal system; the work they do impacts our everyday lives. And although they are directly elected in 43 states and territories, the races for state AG receive substantially less media and voter attention than the more traditional high-profile races for Congress and governorships. This needs to change. You can find information about your state AG and their work here.

ACS started the State Attorneys General Project in 2017 to recognize and highlight the distinct role of the state AG in the U.S. legal system. We believe that the role of the state AG should be used as a force to improve people’s lives. Throughout this year, ACS will feature writings from former and current state AGs and their staffs. Upcoming pieces will include the state AG’s role in promoting environmental justice and LGBTQ+ rights and will discuss state AG elections.

You can stay engaged and learn more about this work by visiting the State Attorneys General Project webpage, where news and information is updated weekly. The Project collects and publishes state attorney general news, blogs, Issue Briefs, and policy resources. We publish resources for law students and recent graduates interested in working in a state attorney general office. We also host programs engaging state AGs and examining some of the legal and policy issues they face. As the November elections approach, take time to learn about the AG in your state, share these resources within your networks, and stay on the lookout for upcoming blogs exploring the many ways state AGs make a difference in our lives.

Banning No-knock and Quick Knock Warrants is the Only Way to Prevent More Tragic Killings

Two years ago, on March 13, 2020, while executing a so-called “no-knock” search warrant in the middle of the night in Louisville, Kentucky, police fatally shot Breonna Taylor. Police opened fire into Taylor’s apartment after her boyfriend, Kenneth Walker, fired a warning shot at what he thought were intruders when police forced their way into the apartment. Her death occurred in a hail of thirty-two bullets fired by police, six of which struck her.

In the public outcry following Breonna Taylor’s death, activists and protestors demanded an end to no-knock and quick-knock search warrants. Yet, despite the tragic lesson her senseless death offers, few states have enacted the type of reform that would prevent this tragedy from playing out over and over again across our country. The case for banning these dangerous warrants will persist and grow stronger as more people are killed at the hands of police. How many lives will it take for states to finally act?

No-knock and quick-knock warrants are an exception to the longstanding common law “knock and announce rule,” which, as its name suggests, generally requires police executing a search warrant to knock at the entrance of the place to be searched, identify themselves as law enforcement, announce their intent to execute a search warrant, and wait a reasonable time for someone to let them into the residence. No-knock warrants eliminate all these requirements, while quick-knock warrants eliminate the requirement to wait a reasonable time before forcing entry.

It’s easy to imagine the events at Breonna Taylor’s apartment playing out very differently had the police adhered to the knock and announce rule. By their very nature, no-knock warrants create chaos and confusion, particularly when executed late at night or early in the morning when occupants are likely asleep. It is both disorienting and frightening to be abruptly awoken by screaming voices, flashing flights, drawn guns, and flashbangs. And yet, shaking off the fog of sleep and figuring out what all those screaming voices are commanding you to do can be a matter of life and death. Much like Taylor’s death, the killing of Amir Locke by Minneapolis police in the early morning of February 2 this year, provides yet another tragic example of the dangers of no-knock warrants.

The rise of no-knock and quick-knock warrants tracks very closely the rise in the so-called “War on Drugs” that begin during the Nixon administration in the early 1970s. Though few jurisdictions collect data regarding no-knock warrants, the use of paramilitary SWAT teams to execute no-knock and quick-know warrants can provide some idea of their explosive growth. By one estimate, SWAT deployments to execute warrants rose from about 1,500 a year in the early 1980s to between 60,000 to 70,000 a year in 2010. This exponential increase in such a dangerous tactic is particularly alarming when factoring in that  forty-two percent of those executed in this time frame were against black suspects and twelve percent were executed against Latinx suspects.

The increase in usage of these warrants closely tracks with the progression of the “War on Drugs” and largely occurred after a U.S. Supreme Court decision in a 1997 felony drug case that held that the knock and announce rule “can give way under circumstances presenting a threat of physical violence or where officers believe that evidence would be destroyed if advance notice were given.” It comes as no surprise that the search warrant for Taylor’s apartment was for “narcotics and/or proceeds from the sale of narcotics,” given the proliferation of no-knock warrants as part of the disastrous and yet ongoing “War on Drugs.

A little over a year after Taylor’s killing, in April 2021, Kentucky passed Breonna’s Law, which included reforms that generally prohibit no-knock warrants. While commendable, the reform has a few noticeable exceptions that risk undermining its actual impact. Namely, Kentucky still allows no-knock warrants for alleged crimes “that would qualify a person, if convicted, as a violent offender” or a terrorist, or in cases where “giving notice prior to entry will endanger the life or safety of any person or result in the loss or destruction of evidence.” We should be particularly wary of the exception for situations in which police might claim that adhering to the knock and announce rule would “endanger the life or safety of any person or result in the loss or destruction of evidence.” Given that threats to life or safety and the destruction of evidence are core justifications for the rise of no-knock warrants, we should be concerned that these exceptions could swallow the new rule.

The most effective way at preventing more tragic killings at the hands of police executing no-knock or quick warrants is to ban them, completely. Four  states—Florida, Oregon, Tennessee, and Virginia—currently have such bans in place. More states need to follow. Comprehensive reform also needs to include greater restrictions on knock and announce warrants. In the absence of meaningful reform, meaning bans that are not undermined by loopholes, people will continue to lose their lives as a result of quick and no-knock warrants, and it is almost a guarantee that the victims will be disproportionately people of color.

OSHA and Local Whistleblower Laws: How the Plaintiffs’ Bar Uses Creative Lawyering To Achieve Justice

During unprecedented times, the plaintiff’s bar utilizes creative lawyering to achieve justice for our clients. In doing so, we often rely on city and state laws to supplement and fill the gaps in legal protection left by their federal counterparts. COVID 19 made that increasingly true and, in the context of workplace safety, there are a number of statutes at play that have never been more critical, including the Occupational Safety and Health Administration (OSHA)’s anti-retaliation regulations and local whistleblower laws.

OSHA’s mandate is to ensure safe and healthful working conditions for employees by setting and enforcing standards and by providing training, outreach, education and assistance, including responding to whistleblower complaints. OSHA does this through its regulatory powers as a federal agency and state OSHA-affiliates adhering to the federal agency rules. The OSH Act itself, which created OSHA, presents a number of hurdles for workers’ rights advocates. For example, employees filing whistleblower retaliation claims under OSHA regulations have only 30 to 180 days (depending on the regulation) to file a claim. This is one of the shortest statute of limitations in the employment law arena.

In December 2020, OSHA celebrated its 50-year anniversary but, given the context of that time, it’s no wonder the celebration flew under the radar. Since the beginning of the pandemic, complaints of COVID exposure and workplace safety violations have exploded, with no region or industry immune to its impact. Unfortunately, this coincided with a continuous decrease in OSHA funding which in turn led to a declining number of inspectors and inspection rates. Between February 1st and October 26, 2020, an Inspector General Report found that the number of investigations conducted by OSHA fell 50% compared to the same time period in 2019 despite a 15% increase in safety complaints to the Agency. As a result, workers suffered and exposed not only themselves but their loved ones to this novel, deadly respiratory virus.

COVID 19 put a spotlight on the hurdles plaguing OSHA while simultaneously creating space for workers’ rights advocates to use city and state whistleblower laws to fill the catastrophic gaps in guarding workplace safety. And it seems that states are recognizing the importance of these protections – both California and New York have had recent developments in their whistleblower retaliation laws to support workers’ rights.

The California Supreme Court recently held in Lawson v. PPG Arch. Finishes, Inc., that an employee’s whistleblower retaliation claim could survive summary judgment if the employee can show that their complaint was a contributing factor in the employer’s decision to take an adverse employment action against them. Previously, employees had a higher standard, the burden shifting framework applied in the U.S. Supreme Court’s landmark decision in McDonnell Douglas Corp. v. Green. Now, this development requires that under California Labor Code Section 1102.6, the employer must show by clear and convincing evidence that it would have taken the same unlawful action against the worker for legitimate, independent reasons even if the person had not engaged in protected whistleblowing activity, a nearly identical framework to that used under the Sarbanes-Oxley Act of 2002.

In New York, the plaintiffs bar has been advocating to strengthen our state’s whistleblower law for decades. On October 28, 2021, New York Governor Hochul signed legislation expanding the scope of whistleblower protection under New York Labor Law 740. The previous iteration, which was enacted in 1984, limited anti-retaliation protections to employees who raised concerns about “substantial and specific danger to the public health and safety” or “health care fraud.” Workers’ rights advocates found the narrow scope lacked any real teeth, essentially rendering the law useless and leaving New York’s workers vulnerable and reliant on OSHA. The new whistleblower law protections create substantial liability and exposure for employers, including an expanded definition of employees (including current and form employees as well as independent contractors), an expanded definition of protected activity (incorporating a reasonable belief standard and eliminating requirements that employees first report violations to their employer) and expanded prohibited retaliatory action (including any action that “adversely impact a former employee’s current or future employment,” such as contacting immigration authorities or reporting the immigration status of employees or their family members), amongst other key provisions.

Over the course of 2021, the Biden Administration has made several attempts to support workplace safety, yet, local advancements, such as those in California and New York, remain an important tool in the plaintiff lawyers’ toolbox. In the first two days of his presidency, President Biden signed Executive Order on Protecting Worker Health and Safety that directs OSHA to increase enforcement of existing agency standards and investigate new protocols for handling COVID in the workplace. The administration also issued a mandate for health care workers and for private employers with 100 or more employees to be vaccinated against COVID-19 or pay for weekly testing, by February 9, 2022. The Supreme Court upheld the requirement for health care workers, (Biden v. Missouri, Case No. 21A240 (Jan. 13, 2022); Becerra v. Louisiana, Case No. 21A241 (Jan. 13, 2022)), but blocked the mandate with regard to private employers stating: “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly.” Nat'l Fed'n of Indep. Bus. v. Dep't of Labor, Case No. 21A244 (Jan. 13, 2022); see also Ohio v. Dep't of Labor, Case No. 21A247 (Jan. 13, 2022). While the administration’s progress is reason to be hopeful, as the SCOTUS ruling indicates, the plaintiffs’ bar must stay vigilant in finding creative ways to support employees – utilizing the local tools and legislation available to us must remain part of the path forward.

“Which people get to decide?”

A core principle of the American Constitution Society is that the government is to serve the people, but which people appears to be a subject of debate and controversy. Earlier this month, the U.S. Supreme Court’s recent decision in Merrill v. Milligan amplified the principle that it was inappropriate to make changes to election rules “when an election is pending,” despite the fact that the primary election would not occur for more than 3.5 months, and the general election would be almost 6 months after that. These days, an election is always pending. In 2016, we saw the then-Senate majority leader’s refusal to consider Supreme Court Justice nominees in the spring of an election year, on the grounds that we should “let the people decide” on a replacement after the death of Justice Scalia. In stark contrast of course, the mantra became “the people have decided” in 2020 when that same then-majority leader raced through nomination of Justice Ginsburg’s replacement in the weeks prior to a general election. Which people get to decide? Those who had overwhelming re-elected a President to a second term, or those who were about to throw out a President after one term?

At issue in the Merrill v. Milligan case was a redistricting map, that the District Court ruled violated the Constitution, because it did not provide for two so-called “majority-minority” districts in the state of Alabama, where Black people comprise over 25% of the population, but constituted a majority in only one of the seven districts. The District Court ordered the maps to be re-drawn prior to the primary elections and the Circuit Court agreed. The state sought a stay or injunctive relief to keep their map, and the U.S. Supreme Court granted the stay, thus permitting the state’s map to stand.

Redistricting, sometimes referred to as “gerrymandering” can be used for good and for evil, and some of it can ensure fair and representative districts, so I will refer to negative gerrymandering and positive gerrymandering. People often conflate race and ethnicity with political party. They apply generalizations and stereotypes because statistically speaking, there are larger percentages of people of color in the Democratic party than in the Republican party. As we all know, that does not mean that all people of color are Democrats, or that most white people are Republicans.

The short-term results of affirmative racial gerrymandering helped to make up for past racial discrimination in voting districts, and for the dilution of the voting strength of people of color in many jurisdictions. SCOTUS has explained that whether race is used for racial reasons or for political reasons, strict scrutiny applies and the state needs to have a compelling interest and narrow tailoring. But the long-term effect of using race to form districts, even though constitutionally permissible, means that there is backlash, and like the 14th Amendment, which was specifically adopted to provide equal protection of the laws to freed slaves, and the 15th Amendment, which prevented voting restrictions based on race, color or previous condition of servitude, was twisted to prevent remedial actions that sought to equalize opportunities by providing more to some people, and less to other people.

In order to avoid a claim, states have to show compactness, contiguity and that they are not dividing districts in odd ways. Using geometry and other mathematical principles is a way to check for extreme partisanship as a project in Boston has been doing, using the Markov chain Monte Carlo technique in a Pennsylvania redistricting case. The mathematicians note that the algorithms cannot make the tough choices for us but can “rein in the worst abuses and start to restore trust in the system.”

Putting aside for the moment the question of where--and for whom--one is able to vote, let’s take a moment to go back to “which people,” especially which people will actually vote. Substantial changes in voting registration and access laws across the nation are leading us to a crisis of democracy, all made possible by SCOTUS’ decision in Shelby County.

Voter ID laws are legally permissible according to SCOTUS, as long as they are related to voter qualifications, as there are interests in making sure only eligible voters vote, and vote only once. The legitimacy of government and integrity of the electoral system are important interests justifying some burdens on voters, as is the orderly administration and accurate count of votes. But stringent ID laws are not necessary to safeguard the electoral process, because rarely to do people try to vote if they are not eligible. Onerous voter ID laws violate the Voting Rights Act of 1965, even after Shelby County, if they have the effect of making it more difficult for racial and language minorities to vote.

Since Shelby County eradicated the pre-clearance requirement for any changes to voting policies and practices in covered jurisdictions, many states have enacted new substantive restrictions on voting and many of those involve identification laws. Not all of those states were covered by the pre-Shelby County pre-clearance requirement, but the boldness has expanded. What types of identification issues arise? Some places do not accept passports, some do not accept student IDs, but they (Texas) do accept gun licenses. Some do not accept the federal registration card that members of many Native American tribes are required to carry at all times. Some do not accept EBT food stamp cards.

Access to particular types of identification is an issue that cuts across race and poverty. Those born at home may not have a birth certificate. Applying for one requires an internet connection and some sort of identification to prove who you are (like witnesses/your parents). It costs money. It takes time to get there. And if you do not drive, are disabled, and there is no public transportation, or you have a pre-existing condition and fear COVID-19, then you are out of luck. Some people are not able to get a driver’s license because they only have a P.O. Box, such as unhoused people as well as many Native Americans living on reservations who do not have street addresses.

As long as there is an effective mechanism for checking who is eligible to vote, there is no reason for these increasingly burdensome restrictions on marginalized communities. The ancient Romans, who we credit for our democratic ideals, had no pre-registration. You showed up in the Forum and voted, orally, in the moment. Imagine having that type of engagement! (Now of course they had slaves to do the work, so the citizens could govern, but that’s a blog for another day.)