Category Archives: Election Law

How The “Top 2 Open Primary” System Limits Voter Choice

Measure 90 in Oregon is on the ballot, which will create a top 2 open primary system where voters pick between all candidates running for an office and the top 2 candidates, regardless of the parties the candidates are or the percentage the winning candidate receives. So theoretically, there could be a general election between two Republicans or two Democrats. This is the system in use in California and Louisiana.

Supporters believe that it will decrease partisanship and increase voter choice. One of the strongest arguments supporters of “top 2″ make is that non-affiliated voters are shut out of the process because the major parties close their primary process to non-party members.

However, the “top 2″ open primary system limits voter choice because minor party candidates, unless they’re wealthy or well-known, will not have an opportunity to enter the general election. Also, this will essentially make political parties meaningless and empower special interests. Finally, this is essentially an incumbent protection racket because the anti-incumbent vote can be split up and made irrelevant. Finally, if you’re a partisan Democrat and the two general election candidates are Republicans, you’re disenfranchised and have no choice on the ballot.

It would be easier to just have regular party primaries, but require as a condition of state funding of the primary election that they be opened to non-affiliated or independent voters.

Here’s an interview on a YouTube show between supporters and opponents of Measure 90.

I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at IJ Review.com and Rare. You can also find me over at the R Street Institute.

Rant: People Who Don’t Link To Source Material

Earlier today, my new co-contributor Matt wrote about the ridiculous Houston city council subpoena on a group who was against the transgender bathroom-rights law.

Where did the original story come from? Right here at The Washington Times.

It’s a busy article.

It comes complete with a picture from the San Francisco gay pride parade. What does San Francisco have to do with Houston bathrooms? I’m not quite sure.

It has a minute-long vapid video featuring a reading of the first two paragraphs of the article, because apparently 300 words is such a weighty article that it elicits “tl;dr” from typical readers of the Washington Times.

And of course it has a rather superficial 300-word article touching only ever-so-slightly on the merits of the case. The article which doesn’t even summarize the basic legal rationale for the group who is challenging the subpoena. The basic legal rationale that’s so simple that I’ll summarize it for you in two sentences:

The law states that subpoenas may only ask for evidence likely to result in admissable evidence on the merits of the case and doesn’t violate various legal privileges. ADF asserts that the subpoenas are overly-broad and violate the law by asking for such wide-ranging materials (some of which are Constitutionally-protected expression and others that are attorney-client privilege or protections against nonparties to lawsuits) that it cannot possibly be within the law.

You know what the Washington Times article is also lacking? ANY GODDAMN LINK TO THE ACTUAL SOURCE MATERIAL!!

It’s not like it was hard to find. A 10-second Google search led me to the ADF web site. A prominent link on the front page of the site got me to their press release in the first 10 seconds on their site. And ADF, to their credit, linked both the subpoena and their motion to quash in the first paragraph. And it’s not like links are expensive. Hyperlinks are free.

So I read them. I realize, this is ridiculous in the days of blogging when everyone has an opinion on Supreme court decisions despite the fact that none of them ever actually reads the opinions. When I read the subpoena and the motion to quash, it was pretty apparent that the subpoena was overly broad. When you dig into it, though, there are a lot of areas of the subpoena that are quite likely to result in admissible evidence. Hence why in the motion to quash, you’ll see this statement:

The Nonparty Pastors respectfully request that the Court issue an order quashing their subpoenas. Alternatively, the Nonparty Pastors request an order modifying the subpoenas to clarify that they do not include (or a protective order declaring that the Nonparty Pastors need not produce) the requested documents that are not reasonably calculated to lead to the discovery of admissible evidence and the requested documents protected by the First Amendment privilege, the deliberative-process privilege, the attorney-client privilege, and the work-product doctrine.

In a lawsuit alleging that a city council unfairly determined that an insufficient number of petitions were gathered, the portions of the subpoena related to the records of petitioners are certainly likely to result in admissible evidence. The content of sermons discussing the Mayor, on the other hand, are clearly not. So if the city attorneys narrow the scope of their subpoena (as the WSJ–an entity which deserves kudos for actually linking the subpoena and motion!–reports they’re already backing away from), they’ll probably still be able to get the discovery information they need to prepare an adequate defense to the lawsuit.

Of course, IANAL, and it’s entirely possible that I got my legal analysis wrong. But what I do know is that I’ve already given you, the readers of The Liberty Papers, a more cogent (and more entertaining, I hope) analysis of the issues than Valerie Richardson of The Washington Times. And unlike Valerie Richardson, I actually gave you the links to go form you own opinion if you doubt my reporting in any way. Because frankly, my dear readers, you’re worth it!

Publications that give you opinion without linking to original source material are trying to keep you dumb. They either want you to keep coming directly to them for analysis (likely), or don’t want you to read the source material and realize they’ve gotten something terribly wrong. Or maybe they’re just terrified that you’ll click on the link and not come back. Or maybe all of the above. Either way, they treat you like infants.

Don’t let them get away with it. Demand better. This is 2014. I hate to use the term “mainstream media” in such a derisive tone that went out of style in about my third year of blogging–right about the time Sarah Palin started calling it the lamestream media–but even The Washington Times should have figured out how to hyperlink by now.

The Basic Premise Behind Campaign Finance Laws

A great deal of ink (or film, or bits) has been expended this election cycle, primarily on the far left (though some on the right… particularly with the more populist factions), decrying the actions of “independent” political action committees, superPACs, and “issue advocacy groups”; as somehow corrupt, evil, anti-democratic etc..

The rhetoric on the left, is that the “citizens united” decision has basically given “shadowy actors” like say, Karl Rove and the Koch brothers, effectively a blank check to “buy elections”.

Of course, the idea that we need to “get the money out of politics” has been a political meme for approximately as long as politics has existed…

… and to a degree, there is a point there. ACTUAL political corruption, in the sense of directly buying influence or buying votes; is certainly something we need to combat as much as possible.

We’ll never eliminate it of course, humans have an endless capacity for venality, greed, and self interest. That’s just the way it is…

Frankly, the only way to get money out of politics; is to get politics out of money.

By which I mean, that so long as politics has an impact on my business and my life (and it always will); if I have money, I’m going to have a strong incentive to spend it, to make the political process work to my advantage… Or even just to hurt me less.

And that’s the way it SHOULD be… I SHOULD be able to spend my money to reduce the harm that government does to me, or to try to make government come out to my advantage; so long as I am not actually bribing a legislator to vote the way I want, committing fraud etc…

There’s a simple way of combating this; and that’s reducing the power of government to impact the individual, such that they no longer have any incentive (or really, so that their incentive is lower… since you’ll never get that little political interference) to spend their money in that way.

But that’s not what these folks are decrying from the hilltops.

What they are screaming about, is essentially free speech they don’t like.

Make no mistake, money IS speech. If you don’t have money, you can’t buy media air time. If you can’t buy media air time, then you can say whatever you want, but you’ll be speaking to an empty room.

One of the basic principles of free speech, is that you have the right to say whatever you like (short of libel, slander, fraud, or incitement to crime); so long as you are not infringing on others rights by doing so.

Another one of those basic principles is that you have the right to say it… But I don’t have to listen to it, and you don’t have the right to make me.

It’s up to me, to decide who and what I listen to, and to use my own judgement and experience in doing so.

So, you may not like what these people are saying; but so long as media companies are willing to sell them airtime, you have no right to restrict that. By attempting to do so, you are attempting to regulate free speech (conversely, you also have no right to force those media companies to sell time to opposing viewpoints; another leftist canard about “fairness”).

Makes sense right?

Well, it does to me… and to the supreme court; and when it’s causes that leftists agree with they’re perfectly OK with it.

The REAL argument, comes down to this:

“We can’t allow these bad evil people and groups to speak, because although I’m smart enough to know the difference between lies and truth, the general population are too stupid to do so”

So, rather than actually convince the people of their own side of the argument, they seek to prevent the other side from even speaking.

It’s entirely consistent with the historical leftist narrative that the “proletariat is fooled by the comfortable goods of the bourgeoisie and the lies of the ruling class” etc… etc…

Their basic premise here being that if the people could only hear and understand the truth, that the leftists ideas would be universally acclaimed as true and necessary, and immediately put into place (with the leftist elites themselves in charge of course… after all, who better to lead than those who understand the ideas the best).

They can’t accept the idea that maybe people don’t WANT more government, with more power over everyone’s lives and businesses… Because that would go entirely against the ideas they have based their entire lives and identities on; and that simply can’t be possible.

…but that’s another argument entirely.

Oh and I should note that there is a “right wing” authoritarian narrative that is nearly identical in principle, that the people are too stupid, lazy, corrupt etc… To be trusted to make their own MORAL decisions; and that the force of government must be used to make people “do the right thing”. That’s equally as bad; it’s just not what we’re talking about right now.

Now… I hate these ads as much as everyone else… But not because I decry “those fools actually believe these foul lies” (though they may be foul lies, and “the people” may believe them); simply because they’re REALLY IRRITATING.

If the people actually are so stupid that they believe “foul lies”; and the other side isn’t smart enough, or doesn’t have a good enough argument to convince them otherwise…

Well, so be it.

That’s the problem with a democratic representative republic. You have to live with the representatives the electorate choose, and the things they vote for.

It’s also why it’s so critical that we have a strictly limited government of enumerated powers only… Or rather, that we return to that; as we haven’t actually had such a government since 1861.

Our government was intended to provide protection against the tyranny of the majority… Unfortunately from the first day that government was put in place, people with “good ideas” have attempted to (often successfully) use the force of government, to have those ideas implemented, without regard to the legitimate powers of government, the desire of the people, or the rights of those being governed.

The left are perfectly willing to crow about how great democracy is… until the people refuse to vote for what they want; at which point they try to get the courts to make the people do what they want anyway.

Because, as we all know, when it comes to leftist causes, they are all “moral imperatives”…

Or as a very smart man put it once “The ends justify the means”.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Why America’s “Third-Party Airline” Shouldn’t Sponsor The Debates

The Commission on Presidential Debates has been coming under a lot of fire for their exclusion of third parties this year, due largely to the fact that Gary Johnson is polling at 6% nationally and happens to be suing them* at the moment. As Reason points out, they’ve already lost three national sponsors, and are currently at a lower overall sponsor number than any previous debate.

But they still have seven national sponsors, one of which is Southwest Airlines. Southwest Airlines seems like a strange company to participate in an exclusionary political sham**, given their history as a minority carrier in the market, and the fact that they so clearly buck industry trends.

So I’m sending them the below letter. Southwest is, IMHO, opposed to the very sort of exclusionary pull that the CPD is trying to push. I’d recommend that others write, call, etc to let them know how you feel***. If you’d like, feel free to use the below as your own template (although I note that it’s too long for their email submission form, so I’m sending it by US mail).

The CPD is perpetuating a sham, and has lost three national sponsors. Let’s try to make it four.

Dear Southwest Airlines,

I am writing today to express my surprise and dismay to learn that you are a sponsor of the Commission on Presidential Debates. While I understand your goal – to create an informed electorate in American participatory democracy – I don’t believe that the CPD’s practices are beneficial to the national dialogue. Further, I don’t believe that their exclusionary policy towards third-party candidates is consistent with the ethos of Southwest Airlines, the very successful “third-party” airline.

Southwest was a beneficiary of airline deregulation – of ending the system that said that every bit of air travel should be controlled by the Civil Aeronautics Board, including fares and routes of service. Southwest was forced to defend their right to fly even intrastate flights without submission to the CAB in court, an action that rose all the way to the US Supreme Court. Southwest was unable to expand into interstate routes until deregulation occurred and the CAB was dismantled. Of all enterprises, Southwest Airlines should be especially sensitive to the abuses of monopoly/oligopoly powers.

Today, the Commission on Presidential Debates is akin to the CAB. It is a body wholly run by, and for the benefit of, the Republican and Democrat Parties. Its goals are to keep third-party candidates (and by extension, third-party ideas) out of the public eye. It’s no different than the CAB only allowing approved airlines to fly interstate routes, with one exception: it’s a field far more important than air travel – the very decision of who will exert political power over American citizens.

Two minor-party candidates will be on the ballot in enough states to have a mathematical possibility of winning 270 electoral votes; Gary Johnson of the Libertarian Party and Jill Stein of the Green Party. While I certainly think it’s unlikely that either has a credible chance to win, I find it deplorable that Southwest Airlines would support a debate organization that won’t even offer them the chance to stand on stage and offer an alternative to the major parties.
I personally believe that Southwest Airlines continues to exist in the marketplace because you are different; you have more efficient business practices that allow you to streamline operations, offering lower-cost flights while still remaining profitable. Your very existence also forces the major carriers to change their practices to meet your competition. Free competition – the competition that CPD is insulating the major parties from – causes all players in the market to improve.

You offer your customers a choice, yet by your sponsorship of CPD you support a debate organization that hides choice from Americans.

I don’t believe Southwest Airlines would appreciate a monopoly action by American and United determining which airlines were entitled to land US airports. Nor do I think Southwest Airlines should sponsor a debate organizer who determines which voices are entitled to reach the ears of the American voter. As a business traveler, I fly Southwest several times each year. I do so because you offer me a compelling product not available from the major carriers. I humbly ask that you reconsider your sponsorship of an organization that won’t allow a compelling non-major product a platform in America’s most competitive product arena – our very governance.

Regards,
Brad Warbiany

» Read more

Liberty > Democracy

Far too often, people use the terms “liberty” and “democracy” as if they were interchangeable. President Woodrow Wilson justified intervention in other countries to “make the world safe for democracy.” Most if not all of the presidents who have followed have made similar arguments as an excuse to place military bases on every continent. Democracy in of itself is no guarantee that the people will live in a free society.

One thing that drives me nuts is this notion that everything needs to be “put up for a vote” whenever the item in question is not at all the business of the would-be voters. Sometimes communities have meetings to decide if the people should “allow” a Wal-Mart to be built. Those who oppose the building of a Wal-Mart in their community argue such things as Wal-Mart won’t allow their workers to unionize*, Wal-Mart will drive out existing businesses, and Wal-Mart imports too much of their “cheap,” “inferior” products from China rather than American products. These might be valid reasons for you to decide not to shop at Wal-Mart but what makes you think you have the right to deny me that choice by holding a vote?

Perhaps a less sympathetic target to some here in Colorado are the medical marijuana dispensaries. These dispensary owners set up shop and followed the existing rules but in the back of their mind they know that community activists can shut them down if they can gather enough signatures to force a vote**.

Then there are those who believe in wealth redistribution. The “rich” need to pay more taxes to benefit the “less fortunate” we are told.

What about economic liberty? Is economic liberty somehow a lesser liberty than any other liberty? The people from Learn Liberty argue that economic liberty is of more value to the individual than any right to vote. There are just some freedoms that ought not be voted away.

*This is more of a selling point for me.
**I’ve yet to hear of a vote to shut down a Walgreens because its within 1000 feet of a school even though they dispense drugs that are many times more dangerous than marijuana.

Additional Thoughts & Further Reading:
Brad reminded me of a great post he wrote nearly 6 years ago along the same lines entitled: Libertarianism and Democracy. After re-reading my post, I realized that I might have left the impression that democracy is of no value to those who value individual liberty. Brad does a much better job explaining that “liberty is an end, democracy is a means to an end.”

In truth, democracy is often better for making decisions than monarchy, or aristocracy. After all, what can empower people more than to allow them to have a hand in making their own decisions? The key is that democracy can be used in ways that don’t reduce liberty, but it can also be used in ways that do.

So it’s not really democracy that libertarians fear, it is force. The sentiment that elicits anti-democratic quotes, though, is the fear that democracy will marshal government to impose force that destroys our liberty.

I think the important thing that people need to recognize is that there are limits to what a government should have the power to do even if the process is a democratic one. What are the limits? Simply the recognition that the individual has the natural rights of life, liberty, and property that cannot be taken away provided that s/he does not infringe on the same rights of another.

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