Critical Mass

On May 1, 2021, Idaho Governor Brad Little signed a bill into law that banned Idaho public schools from teaching students "Critical Race Theory" ("CRT"). Meanwhile, lawmakers in Texas, Tennessee, Georgia, Arkansas, South Dakota, Arizona, New Hampshire, Iowa, Louisiana, Missouri, Rhode Island, and West Virginia are considering similar bills.

This begs the obvious question: Why? What is "Critical Race Theory" and why are so many states in a rush to ban it?

To be honest, this subject is a bit touchy and complex, so rather than try to answer the question by critiquing CRT, I'll try to clear up a couple of common misunderstandings about this issue, one pertaining to the bill in question and another about CRT itself.

Thinking Critically

The headline of one news article that covered this story read "Idaho wants to make it illegal for schools to teach students how to think critically about racism" (Business Insider). But is that really what the law does?

Idaho Gov. Brad Little (R)

Let's look at the operative section of the text of the bill in question.

(a) No public institution of higher education, school district, or public school, including a public charter school, shall direct or otherwise compel students to personally affirm, adopt, or adhere to any of the following tenets:

(i) That any sex, race, ethnicity, religion, color, or national origin is inherently superior or inferior;

(ii) That individuals should be adversely treated on the basis of their sex, race, ethnicity, religion, color, or national origin; or

(iii) That individuals, by virtue of sex, race, ethnicity, religion, color, or national origin, are inherently responsible for actions committed in the past by other members of the same sex, race, ethnicity, religion, color, or national origin.

Basically, the text here says that no Idaho public school can teach that:

1. Anyone is superior or inferior to anyone else based on their identity

2. Anyone should be treated differently because of their identity

3. Anyone is responsible for past offenses committed by others who share their identity

I don't know about you, but that seems pretty fair to me. Furthermore, I don't see anything in these points that would "make it illegal for schools to teach students how to think critically about racism".

Now, where does CRT fit into all of this?

What's in a Name?

To answer that question, we need to examine the name "Critical Race Theory".

When in doubt, go to the source.

According to Merriam-Webster, the word critical (when used in the context of "critical thinking") means "exercising or involving careful judgment or judicious evaluation".

Using that definition of the word critical, it would stand to reason that "Critical Race Theory" means something along the lines of "exercising or involving careful judgment or judicious evaluation to issues of race", or something thereabout. Well, why would anyone want to ban that?

The issue is, that's not what critical means in the context of "Critical Race Theory". Instead, the word Critical (note the capitalization) in the name "Critical Race Theory" refers to "Critical Theory", a philosophy upon which CRT is based.

Basically, "Critical Theory" is a Marxist social philosophy that (among other things) asserts that social problems are created and perpetuated by societal structures and institutions (like law and government) rather than by individual actions.

In simple terms, Critical Race Theory is based on Critical Theory, which itself based on Marxism. 

'X' Marx the Spot

Just as a refresher, Marxism is the name given to a loosely-related collection of political and social philosophies based on the work of Karl Marx, a German philosopher who lived from 1818-1883.

Karl Marx, not Santa Claus.

Marx believed that history was an ongoing "class conflict" between the "ruling class" (which he called the "bourgeoisie") and the "working class" (which he called the "proletariat"). Today, his work is best known for being the philosophical foundation of Communism.

Conclusion

In conclusion, we can draw two important points from this analysis:

1. Critical Race Theory is not simply "critical thinking about race", but is rather a specific social philosophy based on Marxism.

2. The bill signed into law in Idaho does not ban classroom discussions on race, but rather insists that they adhere to three specific principles of equality and individuality.

My Take

The name "Critical Race Theory" is somewhat misleading due to the potential misinterpretation of the word "Critical". Since CRT is rooted in Marxism, I propose that a more accurate name would be "Marxist Race Theory", or MRT. That said, it's easy to see why CRT proponents would hesitate to adopt that moniker (as a school administrator, try to get anything with the word "Marx" added to the curriculum and soon you'll be looking for a new job).

It's worth repeating: Laws like the one passed in Idaho don't do anything to prevent thoughtful discussions about race; if you actually read the text of the bill, you'll find it's just common decency. And if you're upset that adherence to these principles effectively bans your agenda (be it CRT or anything else), then you have my permission to go pound sand.

The Strange Case of the ERA

Constitutional amendments have a checkered history in American politics. Some are upheld as the most important and sacred pieces of our law, others are obscure, and one was even repealed. However, perhaps no case is as strange (or controversial) as one particular proposed constitutional amendment called the Equal Rights Amendment (ERA).

In this post, I'll discuss the history of the ERA, what derailed its once-promising ratification effort, and where the amendment stands today.

Let's examine the strange case of the ERA.

Background

The idea of a constitutional amendment that explicitly guaranteed equal legal rights for men and women has been kicked around in one form or another since at least the 1920s. With the passage of the Nineteenth Amendment in 1920, women won the right to vote in the United States, and immediately discussion began brewing that it didn't go far enough: An additional amendment was needed to guarantee women equal rights in all legal matters.

Over the next few decades, support for such an amendment gradually began to build. Similar amendments were introduced in every congressional session between 1921 and 1972, typically being defeated in committee each time. Various political interest groups and labor unions discussed, debated, and fought amongst each other over the issue, disagreeing about whether it would actually benefit women and/or the country as a whole and whether it was even needed. 

Rep. Martha W. Griffiths (D-MI), who introduced the ERA in 1971 and is often called "the mother of the Equal Rights Amendment".

However, the turning point came in the 1960s where, like in the 1920s, support for an equal rights amendment was fueled by the passage of another law, this time the Civil Rights Act. Finally, in October 1971, with the backing of numerous women's interest groups and labor unions, the ERA as we know it today was approved by the United States House of Representatives by a vote of 354-24 (with 51 not voting). This was soon followed by the passage of the ERA in the United States Senate in March 1972 by a vote of 84-8 (with 7 not voting). President Richard Nixon then immediately endorsed the ERA upon its passage by Congress.

With overwhelming bipartisan support in both houses of Congress and an endorsement by the President, the road to ratification for the ERA seemed clear.

Or was it?

Road to Ratification

For a constitutional amendment to be ratified, it not only needs to be approved by Congress, but also ratified by a 2/3 majority of state legislatures. Beginning with its passage by the Senate in March 1972, the ERA was placed in the hands of the states with a seven-year deadline (March 22, 1979) for 38 states to ratify it.

By the end of the month, 8 states had ratified the ERA, and by the end of April that number was up to 16. Another 4 ratified by the end of 1972, bringing the total up to 22, and another 8 ratified by the end of March 1973 for a total of 30 of the required 38 ratifications.

However, after the 30th ratification, momentum began to ebb. Despite gaining 30 ratifications in its first year, the ERA managed to acquire only 5 more ratifications over the next 4 years, bringing to total up to 35, three short of the 38 required. To add to the ERA's woes, three of the states that had originally ratified the ERA had since voted to rescind their ratification (more on that later).

By the time the ratification deadline hit in March 1979, no additional states had voted to ratify the ERA, and two more had voted to rescind their ratification (Congress attempted to extend the deadline by 3 years to June 30, 1982, but this extension was struck down by the Supreme Court in NOW v. Idaho, a decision which also upheld state rescission). At that time, the ERA, an amendment seemingly destined for ratification with broad political support, was all but dead in the water.

How did this happen? Why did states stop ratifying the ERA while others actually voted to rescind their ratification? It turns out, support for the ERA was far from unanimous.

Opposition

Though small in number, there were influential groups and individuals (even women) who opposed the ERA from the beginning.

Phyllis Schlafly, a conservative activist from Illinois who campaigned against the ERA

Conservative activists, such as Phyllis Schlafly of Illinois, argued that depending on how the ERA was interpreted, women could stand to lose legal advantages that they currently enjoyed over men, including preference in regard to alimony and child custody in divorce cases, as well as exemption from the draft. Furthermore, it was argued that with the passage of the Equal Pay Act in 1963 and the Civil Rights Act in 1964, there were no remaining practical legal advantages to be gained for women by the passage of the ERA.

The campaign against the ERA was particularly effective. By 1973, public support for the ERA in states that had yet to ratify fell below 50%, as large numbers of working-class women turned against the amendment. Additionally, by the ratification deadline in 1979, a total of five states that had ratified the ERA voted to rescind their ratification.

At the 1980 Republican National Convention, the Republican Party officially dropped support for the ERA from the party platform. Since bipartisan support is a virtual necessity for the ratification of any constitutional amendment, the RNC's decision to oppose the ERA was effectively the death knell for the ratification effort.

The ERA Today

In the years since the ERA's defeat, there has been an ongoing effort by the amendment's supporters to revive the ratification campaign. These supporters argue that 

1. Congress can retroactively remove the ratification deadline and, provided an additional three states vote to ratify the ERA, it can still become law
2. Because the Constitution specifies no mechanism for states to rescind amendment ratification, the rescissions of the 5 states that did so are null and void (contrary to the Supreme Court's ruling in NOW v. Idaho).

Map of where states stand on ERA ratification.
Pink = Ratified
Purple = Ratified after deadline
Orange = Ratified, but then rescinded
Green = Partially ratified
Blue = Not ratified

Since 1979, three additional states (Nevada, Illinois, and Virginia) have voted to ratify the ERA. Additionally, numerous bills have been introduced in Congress to remove the ratification deadline, the most recent of which passed in the House of Representatives in 2020 by a vote of 232-183 (it has yet to be introduced in the Senate).

However, even if the ratification deadline is removed, 5 states voted to rescind their ratification, which would bring the running total of state ratifications back down to 33. Debate over whether these rescissions are valid has raged for years, despite the ruling in NOW v. Idaho. Even many ERA supporters admit that if Congress is allowed to retroactively change the rules for ratification, it only makes sense for the decision of the states who changed their position on ratification be respected.

Among those who held this view was the late liberal Supreme Court justice Ruth Bader Ginsburg, who suggested that supporters of the ERA would be better off by starting the effort over from scratch rather than trying to ride on the coattails of the 1972 bill. Ginsburg said that "If you count a latecomer on the plus side, how can you disregard states that said 'We've changed our minds?'".

My Take

Personally, I question the need for the ERA. Virtually every practical legal protection women can ask for is already enshrined in law in one way or another (especially in the context of the Civil Rights Act), meaning that the ERA would be more symbolic than anything.

Furthermore, I agree with the late Justice Ginsberg that proponents would be better off starting anew. If you're going to retroactively change the rules regarding ratification, then you need to allow states to retroactively change their votes.

After all, fair is fair.

537

Elections are no strangers to controversy. However, perhaps no election in recent history was as controversial as the 2000 United States Presidential election. Decided by a margin so small it defies belief, this election (and the controversy surrounding it) still stirs up debate and consternation to this day.

Let's get to the bottom of what happened in that election.

Let's revisit the recount controversy of the 2000 United States Presidential Election.

Election Night

On November 7, the night of the 2000 Presidential Election between Vice President Al Gore (D) and Texas Gov. George W. Bush (R), Florida was a closely-contested state: Final polls leading up to the election had Gore leading Bush between 2-4 percentage points, within the margin of error. 

County vote map of Florida from the 2000 Presidential Election

Soon after the polls closed in the Florida peninsula (which is in the Eastern time zone), the Associated Press called the state for Gore (based on result tallies and exit polling). However, as results continued to come in throughout the night (especially from the Florida panhandle counties in the Central time zone), the margin began to tighten. Several news networks proceeded to reverse their call, moving from "Gore" to "too close to call".

By the end of the evening, it became apparent that the winner of Florida would be the next President of the United States. At the end of the election-night vote count, Bush led in Florida by 1,784 votes. Under Florida state law, the small margin initiated an automatic statewide machine recount.

The Recount(s)

The recount was completed on November 10, after which Bush's lead was reduced to 327 votes. Following the recount, the Gore campaign requested a manual recount in four counties: Miami-Dade, Broward, Palm Beach, and Volusia.

The Florida Supreme Court building, where much of the drama played out

Under Florida state law, when a candidate requests a recount in a particular county, it is up to the county to decide whether to approve or deny the request. In response to the Gore campaign's request, Volusia began a recount on November 12. However, state law also required that all counties report and certify their returns by 5:00 PM on November 14. This was a problem, as manual recounts were very slow. Thus, there was a very real danger that the recount would not be complete by the deadline.

By November 14, Volusia had completed its recount, after which Bush held a 300-vote lead. Palm Beach had decided to perform a recount, but had not yet started, while Broward and Miami-Dade were still considering the Gore campaign's request. However, with the deadline past and the recounts in Palm Beach, Broward, and Miami-Dade counties having not yet started, it was up to the courts to decide whether the recounts in those counties could be included in the final tally.

Over the next few days, the courts ultimately decided that the recounts could continue, but that the Florida Secretary of State, Katherine Harris, could refuse to allow subsequent recounts to be included in the final tally. However, this ruling was put on hold while the Florida Supreme Court considered an appeal by the Gore campaign. Meanwhile, recounts began in Palm Beach, Broward and Miami-Dade counties.

On November 21, in response to the Gore campaign's appeal, the Florida Supreme Court ruled that ongoing recounts in Palm Beach, Broward, and Miami-Dade counties must be included in the final tally and gave the counties until November 26 to complete them. The next day, Miami-Dade County suspended its recount, saying it didn't have enough time to complete it before the deadline (the Gore campaign unsuccessfully sued Miami-Dade County to continue its recount).

By November 26, the recounts in Palm Beach and Miami-Dade counties were still incomplete. At that time, Harris proceeded to certify the statewide vote count as it stood then, which gave Bush the win in Florida by a margin of 537 votes.

On December 8, in a surprise ruling, the Florida Supreme Court ruled against the use of a manual recount in just the four counties that the Gore campaign had requested and instead ordered a statewide manual recount of all "undervotes" (ballots where no vote for President was recorded). This recount had the potential to alter the outcome of the election, as about 45,000 ballots were classified as "undervotes".

However, the next day, in response to an appeal by the Bush campaign, the US Supreme Court overruled state court's decision, ordering that the recount be halted and that the results certified on November 26 should stand as the final tally.

On December 13, in a nationally-televised address, Gore officially conceded the election to Bush.

My Take

In the years since the election, it has been debated as to whether Bush or Gore really "won" Florida. Some say that because Bush was the official leader at end of the election night count and at the end of each subsequent recount, he was the undisputed winner of the state of Florida. However, others point out that the manual recounts of Palm Beach and Miami-Dade counties (which were very friendly to Gore) were never completed, and that Gore would have likely won if they were.

The infamous "Butterfly Ballot", which the Gore campaign claimed caused many voters to accidentally vote for Pat Buchanan

Additionally, it's become a common misconception that the US Supreme Court "overturned" the result of the election in Florida, giving it to Bush when it was "rightfully" won by Gore. However, as you can see from this timeline, that is not what happened at all. The Supreme Court simply ended the "undervote" recount, allowing the results certified on November 26 to stand as the final tally.

Personally, I approach this like a filmmaker. When you're a director trying to get the perfect shot, you may find it or you may not. However, what you can't do is spend too much time searching for it. Eventually, you've got to take what you have, perfect or not, and move on. Otherwise, the movie won't be finished.

In the election in Florida, we could have spent weeks or months performing recount after recount with the final tally changing each time. However, certification deadlines exist for a reason. At a certain point, you've got to declare a winner and move on. You can only reasonably count votes so many times.

In this instance, we had four different counts:

The election night count (Bush won +1,784)

The machine recount (Bush won +327)

The Volusia recount (Bush won +300)

The Broward recount (Bush won +537)

In most elections, there is only one count before a winner is declared. In 2000, Florida got four, with the same winner each time. I know the margin is close, but after four counts, it's time to move on. Besides, by all rights, the winner should have been declared on November 14, the original deadline. It was a courtesy to the Gore campaign that it was extended to November 26, at which point Bush still won.

Over the years, the vote count in Florida has been debated ad nauseum, but it's all purely academic. After all, Monday morning quarterbacks don't win games.

The Killian Documents

The 2020 Presidential election is upon us and, as expected, controversy has ensued. However, rather than focus on this election, I would like to revisit a controversy from a past election, an affair that rocked the 2004 Presidential race and effectively ended the career of one of the most celebrated names in news journalism.

Let's revisit the Killian Documents.

1st Lt. George W. Bush in the Texas Air National Guard (TexANG).

Background

In August 2004 (three months before the 2004 Presidential election), Lt. Col. Bill Burkett, a former US Army National Guard officer, made contact with CBS News producer Mary Mapes, claiming to have documents proving that President George W. Bush received improper treatment during his time in the Texas Air National Guard (TexANG).

The documents were memos supposedly written in 1973 by Bush's then-commanding officer, the late Lt. Col. Jerry B. Killian. They claimed that Bush had disobeyed orders and that outside influence had been exerted on his behalf to improve his record. Burkett claimed that he obtained the documents from Killian's personal files via a former TexANG Warrant Officer.

Burkett had previously made multiple unsubstantiated allegations against Bush, one of which he later retracted. This led to many media outlets considering him an 'anti-Bush zealot' and an unreliable source.

In early September, Burkett provided photocopies of the documents to Mapes. Mapes informed CBS News anchor Dan Rather of the story and together they planned to air it on September 8.

CBS Investigation

Before airing the story, CBS conducted an investigation to determine if the documents were authentic. This investigation consisted of two interviews with individuals who knew Killian and an analysis of the documents by four forensic experts.

Both interviewees, Robert Strong (Killian's friend and head of the TexANG administrative office) and General Robert Hodges (Killian's immediate superior at the time), maintained that the documents could have been legitimate based on their content, but they had no first-hand knowledge that could verify their authenticity.

Opinion was split among the document experts. Two said that the documents had outstanding issues that called their authenticity into question, while the other two experts cautiously believed that the documents were authentic based on the document signatures.

Breaking the Story

Despite the mixed findings from the investigation, Mapes and Rather decided to push forward with breaking the story on September 8.

Immediately after the story was aired, several bloggers began discussing and analyzing the documents. By the next day, claims that the documents were forgeries had spread across the internet.

Animated GIF comparing one of the documents to a copy made in Microsoft Word

On the night of September 9, CBS News released a statement saying that the documents were "thoroughly investigated by independent experts, and we are convinced of their authenticity" and "this report was not based solely on recovered documents, but rather on a preponderance of evidence, including documents that were provided by unimpeachable sources", though the latter claim was soon dropped.

By September 10, other news outlets such as The Washington Post, The New York Times, and the Associated Press were openly questioning the documents. The Dallas Morning News pointed out that one of the officers mentioned in one of the documents was discharged a year and a half before the document was supposedly written.

Nevertheless, CBS News continued to defend the authenticity of the documents.

CBS's Defense

Media coverage of the story intensified daily. CBS attempted to have additional experts verify the authenticity of the documents, but the results continued to be inconclusive.

Meanwhile, the original document examiners began to speak publicly. The two who had expressed doubts to CBS about the documents continued to do so, while the other two stated that they had only been asked to verify the signatures on the documents, not the documents themselves.

On September 15, CBS interviewed Killian's former secretary, Marian Knox. During the interview, Knox made contradictory statements about whether she believed in the authenticity of the documents themselves and the information they contained.

The next day, September 16, Rather acknowledged that the documents could be fake, stating: "If the documents are not what we were led to believe, I'd like to break that story."

CBS Apologizes

On September 20, CBS reported that their source, Bill Burkett, admitted that he had lied about where he had obtained the documents. Burkett now claimed that the documents were not obtained from Killian's personal files, but were instead given to him by a person named "Lucy Ramirez" (multiple subsequent investigations failed to produce any evidence that "Lucy Ramirez" was a real person). Additionally, Burkett claimed that he destroyed the original documents after faxing copies to Mapes.

In an official statement, CBS News president Andrew Heyward stated that "Based on what we now know, CBS News cannot prove that the documents are authentic, which is the only acceptable journalistic standard to justify using them in the report. We should not have used them. That was a mistake, which we deeply regret".

Aftermath

Following an extensive internal investigation, Mapes was terminated, and resignations were demanded of several other CBS News staff. Rather retired in March 2005; it's unknown if his decision to retire was a result of the controversy surrounding the Killian documents.

To this day, no generally recognized document expert has positively authenticated the documents. The widely accepted view among experts is that the documents are forgeries, compiled on a modern computer using a word processing application (such as Microsoft Word), printed out, and run through a copier for several generations to make them appear older.

Despite not being directly involved with the controversy, it is believed that the presidential campaign of John Kerry was damaged by the fallout, ultimately leading to Bush's reelection in November. Some Left-leaning conspiracy theorists, including then-Democratic National Committee chair Terry McAuliffe, suggested (without evidence) that the documents were plants by Bush campaign strategist Karl Rove. Rove denied any involvement.

Nevertheless, Mapes and Rather still maintain to this day that they believe the documents to be authentic.

Mis-quota-tation

Last month, California Governor Gavin Newsom signed into law a bill that would require publicly traded businesses headquartered in California to appoint a minimum number of individuals from "underrepresented" groups to their respective board of directors. 

On the surface, this is a well-intentioned move to diversify corporate boardrooms and increase racial representation at the highest levels of business. But is the new law even constitutional? And could the fate of a similar law passed in 2018 bring down this one as well?

I can tell you from experience, those chairs aren't nearly as comfy as they look.

Breaking Up the Boys Club

Back in September 2018, as the #MeToo movement was making headlines, then-Governor Jerry Brown signed into law a bill that required publicly traded corporations headquartered in California to appoint at least one female to their respective board of directors by the end of 2019 and at least three by the end of 2021. Many activists hailed this as a victory to gender equality.

There's just one problem with the law: It's very likely unconstitutional. 

You see, both the California state Constitution and the United States Constitution prohibit discrimination based on sex, race, and other classifications. The quota system set up by this law likely violates both constitutions by requiring that a certain number of positions on each corporate board be "earmarked" for people of a specific sex. 

Furthermore, those close to this law were well aware of its shaky legal footing. The California State Assembly floor analysis of the law admitted that "The use of a quota-like system, as proposed by this bill... may be difficult to defend.” Even Governor Brown, who signed the bill into law, said that “serious legal concerns have been raised” about the law and that “I don’t minimize the potential flaws that indeed may prove fatal to its ultimate implementation.”

Standing Up

For all intents and purposes, both the California State Assembly and the Governor admitted that the bill was unconstitutional even as it was being signed into law. However, the hope among the law's supporters was that no one would choose to challenge it in court.

For almost a year, the strategy seemed to work. No corporations sounded the alarm over the law, and it seemed like all would comply (or at least pay the required fines for non-compliance, which are quite small) quietly. However, in August 2019, a group filed a "taxpayer suit" against the law, arguing that since the law is blatantly unconstitutional, the State of California cannot use taxpayer funds to enforce it.

Whether this suit would be allowed to move forward based on legal standing has been an open question (a similar suit filed in November 2019 was dismissed for lack of standing). However, this past July, the court ruled that the group did have legal standing to challenge the law, allowing the lawsuit to move forward.

Dominoes

The problem for the racial diversity law signed by Governor Newsom is that it's essentially a carbon copy of the gender diversity law signed by Governor Brown, only with the gender quota replaced by a race quota. If the gender diversity law is struck down in court, the racial diversity law will almost certainly fall as well.

Just as a side note, if you're wondering were Affirmative Action fits into this, the Supreme Court held (in Regents of the Univ. of Cal. v. Bakke) that since Affirmative Action is not tied to a strict numerical quota and race is only one of many factors considered (that is, race alone cannot "disqualify" someone from admission), it is permissible under federal law (this is where Harvard got in trouble recently, as it has been accused by the Justice Department of engaging in "racial balancing", which is not deemed permissible based on the ruling).

My Take

For me, the purpose of this post is not to criticize the merit of diversity on corporate boards. Instead, I criticize the clumsy and unconstitutional way the State of California has attempted to mandate diversity in the boardroom. 

There are many who may argue that the ends justify the means. Well, if the means in question violate constitutionally protected rights of individuals, then what use are those rights? That line of reasoning is a slippery slope that could be used to justify trampling on the rights of any group or individual in order to achieve a "righteous" goal.

You can support an end goal without supporting every route suggested to get there. For example, my brother and I both support the principle of Net Neutrality (we both work in IT, so it's a relevant topic for us). However, he supports Title II reclassification of ISPs as a "Common Carrier" by the FCC, while I believe Congress should pass legislation protecting Net Neutrality (instead of the FCC repurposing regulation from the 1930s that was intended to regulate telegraph monopolies, but I digress...).

Ultimately, with any worthwhile undertaking, both the ends and the means must be fair. After all, if the cure is as bad as the illness, then what's the point?

Update (5/16/2020)

Today, the California law (SB826) that required publicly traded businesses based in the state to appoint a minimum number of females to their boards of directors was struck down as unconstitutional. This follows last month's strikedown of the sister law (AB979) that likewise required businesses to appoint a minimum number of individuals from "underrepresented" groups to their boards.

Over the course of the trial, the State admitted that the law had never actually been enforced and that there were no plans to do so. Furthermore, it was revealed that former Secretary of State Alex Padilla had informed former Governor Jerry Brown weeks before he signed the bill into law that it was likely unenforceable; Brown decided to sign the bill regardless as a "statement" in support of the #MeToo movement.

As of this time, the State is currently reviewing the ruling and is undecided whether to file an appeal.

As I predicted, these laws were inherently unconstitutional. While the law's supporters claimed that it was "necessary" to achieve "equitable" outcomes for women and to reverse the damage done by years of discrimination, that argument didn't hold up against the equal protection clause of the California constitution. Furthermore, presiding Judge Maureen Duffy-Lewis said that the State could furnish no evidence that any corporations in California were actually practicing gender discrimination in boardroom selections as policy.

The bottom line is this: You can't violate the constitutional rights of an individual or group in order to achieve a desired outcome, no matter how noble. Appointments to any position should be based on merit, not identity; to do otherwise (except where the candidate's identity is a functional requirement for the position) is discrimination, full stop. After all, the only way to end discrimination is to stop discriminating, not to replace one form of discrimination with another.

Union Blues

Wisconsin Gov. Scott Walker, who ended union protection agreements in Wisconsin.

Earlier today, I came across a very interesting article from The Washington Post concerning the case Janus v. American Federation of State, County and Municipal Employees, which the Supreme Court is scheduled to hear on February 26. This case, and the court's ruling on it, is expected to be of landmark proportions, and easily the single biggest ruling since Justice Neil Gorsuch was appointed to the bench by President Trump.

Background

In case you're not familiar with the issue at hand, let me give you a quick primer:

In 1977, the Supreme Court ruled that any public sector employee covered by a union contract (not just union members) could be required to pay union fees, provided that the money collected would not be used for "political activities" (Abood vs Detroit Board of Education). 

In essence, this means that if you work for a government agency (such as a school district) that has a collective bargaining agreement with a labor union (such as AFSCME), then you can be legally required to pay union fees whether you're a union member or not (such arrangements are often called "protection agreements"). The only stipulation is that labor unions cannot use money collected via fees from non-members for "political activities", such as funding a politician's election campaign or running a political advertisement.

The thought at the time was that everyone who benefits from the union's collective bargaining efforts, whether union member or not, should contribute to "the pot". Otherwise "freeloaders", or those who would reap the benefits of collective bargaining without paying dues, could potentially bankrupt the labor unions. 

However, in the years since, the line between "political" and "non-political" activity has become increasingly blurred, so much so that public sector employees now argue that it is impossible to make a legal distinction between the two. Even basic union functions like collective bargaining have become highly politicized, as the results of such negotiations can affect taxes and other public policies.

Thus, if union activities such as collective bargaining could be reasonably construed as "political activities", then requiring employees to fund them violates their Right to Free Speech by compelling them to financially support a political cause as a condition of their employment, or so goes the argument put forth by the plaintiff in Janus v. AFSCME.

Impact

 

Should the Court rule against mandatory union dues, the repercussions for public sector labor unions could be devastating. In a recent survey, only 35% of the members of the AFSCME responded that they would definitely pay union dues if not required to do so by law. Labor unions are also aware that union membership plummeted in Wisconsin after Governor Scott Walker (pictured) ended mandatory public sector union fees in the state. If the same were to happen on a national scale, it could be the end of an era for public labor unions.

My Take 

 

I agree with the plaintiff in this case. Compelling employees to pay union membership dues as a condition of employment is inherently unfair. Today, the line between political and non-political activity for organized labor is essentially non-existent, and we're fooling ourselves if we pretend otherwise. Besides, members and non-members don't receive the same benefits. True, there is some overlap in regard to areas like basic compensation, but other benefits such as legal representation are unavailable to non-members; requiring them to pay the same dues without the same benefits is unfair.

Now, that's not to say that I don't understand the union's position. Freeloading isn't very fair either, but like any business, if labor unions want dues-paying members, they should have to market themselves. Imagine a scenario where you have a business that sells a product that the public is forced to buy, no matter what. How much effort are you going to put into marketing that product? How much are you going to invest in its quality? Probably very little, since people are going to be compelled to buy it in any case. This is the kind of gravy train that public sector unions have been riding for decades.

Instead of imposing mandatory fees on everyone by law, unions should be selling benefits like pensions, legal representation, training opportunities, and the like to potential members to win their membership. And while they're at it, they can leave the heavy-handed political activism aside. Don't make workers have to choose between their political beliefs and their jobs, and stick to the original mission of organized labor: Benefiting workers. If pubic sector labor unions can do this effectively, then they deserve to stick around. If not, then their time is up.

Crimson Tide

A county-by-county map of the results of the 2016 United States Presidential election.

A Chinese businessman once voiced his disdain for American elections, lamenting that they are "highly unpredictable" and thus difficult to plan around. To be honest, this shouldn't be surprising; businesses like predictability and in authoritarian states like China, elections often have pre-determined outcomes. However, the 2016 United States Presidential election, held last week, proved to be anything but predictable as every pollster, pundit, and prognosticator was proved wrong when Donald Trump won the presidency by a score of 306-232 electoral votes over Hillary Clinton. This came as a shock to everyone, Clinton and Trump supporters alike (myself included), and in the days since, everyone has been asking themselves the same questions: How did this happen? Why did so many people vote for Trump, in spite of his inflammatory and bone-headed comments? Did gender, race, or immigration play a role? In this post, I'm going to examine each of these questions and give you my own thoughts on the factors that led to Trump becoming the 45th President of the United States.

The campaign leading up to this election was anything but ordinary: Wild accusations, gaffes, and insults traded between the candidates became everyday news. Donald Trump, with his off-script, firebrand manner, made many inflammatory statements about his opponents, Republicans and Hillary Clinton alike. In addition, the revelation of questionable past business dealings and unflattering comments about women and minorities made Trump's campaign a daily Public Relations nightmare. The Clinton campaign wasted no time using the struggles of the Trump campaign to their advantage; indeed, the Democrats' strategy for winning the election seemed to consist solely of discrediting Trump's character and his fitness to be President. Considering Trump's lack of experience (having never served previously in government or the military) and his unrestrained manner, this appeared to be a solid game plan. As the campaign wore on, Clinton's lead in the polls steadily grew and by November 9th, it seemed like the election would be only a formality, a coronation for the country's first female President.

Unfortunately for Clinton, the United States isn't China. As usual with Presidential elections, the first few states called on Election Day carried no surprises. However, after a couple of hours, the heavily anticipated vote counts from the swing states of Florida and North Carolina started to trickle in, and they indicated that Trump was faring much better than expected. In particular, Florida, a battleground state where many expected the count could go late into the night or early hours of the next morning before a winner was declared, was actually called quite early for Trump, a surprise to many observers and an ill omen for the Clinton campaign. Before long, Trump had secured victory in both North Carolina and Florida, and began looking toward the Mid-West swing states of Wisconsin, Pennsylvania, and Michigan for an edge. As the numbers came in, the nation held its breath as it watched the unthinkable happen: Trump, who needed a Hail Mary to flip at least one of these "reliably blue" states, ended up securing victory in all three to win the election.

I watched all of this drama unfold live on CNN. It was interesting to see the mood of the commentators change throughout the night, from confident and relaxed at the onset to concerned and confused at around the midpoint and finally to shocked and dismayed at the conclusion. Once it was obvious that Trump was going to win the election, the commentators and analysts began asking: How did this happen? After all of the terrible and off-putting things Trump had said and done, why would so many people still go out and vote for him? After these questions were posed, it wasn't long before the accusation of sexism, racism, and xenophobia on the part of the American electorate began flying. Celebrities and personalities all over social media voiced their displeasure, accusing voters of sexism for having decided against electing the first female President, despite the fact that Clinton was obviously much more qualified to hold the office than Trump. On CNN, contributor Van Jones delivered his now-famous monologue in which he declared that the result constituted a "White-lash", or a vote of opposition by white people, against the increased political presence of minorities and influx of immigrants into the country.

Ultimately, these critics are wrong in their assessments of the voters and the reasons why Trump was elected. You see, voters have very practical concerns when it comes to selecting a new Commander-in-Chief. Many political observers and activists often see issues  through a certain viewpoint that agrees with their ideology but may not be shared by the average voter. For example, many of these such observers and activists were hoping to see the first female President elected, especially when that candidate was running against someone who had made very negative remarks about women in the past; for them, the politics of gender were front and center in this election. However, voters who had more pressing concerns (such as economic security, healthcare, taxes, and jobs) didn't have the luxury of spending their vote on the candidate that would provide the best political optics; instead, they voted for the candidate who they felt would serve them best as President.

That candidate was Donald Trump, a successful businessman who made trade reform with the aim of bringing back well-paying manufacturing jobs a centerpiece of his campaign and whose experience building businesses in the private sector was set to help him do just that; by contrast, Clinton admitted that she possessed little economic acumen and promised that her economic policy would simply be a continuation of that of President Obama's administration. Did this decision to vote for Trump mean that the voters endorsed his vulgar past comments about women, and by extension, establishes them as sexists? Of course not. No one likes the remarks that Trump made about women, but the American voters were not voting for a role model or a best friend; they were voting for a President who could help make their lives better, and when the choice presented to the voters for that purpose was between Donald Trump and Hillary Clinton, they chose Trump.

Next, you have the Van Jones argument, that voters supported Trump because they hold racist and xenophobic sympathies. Aside from the obvious problems with proving that over 61 million Americans are unabashed racists and xenophobes, you can discredit this idea entirely by simply looking at the election data. In 2008, President Obama was elected over John McCain by a margin of 365-173 electoral votes and 69-60 million popular votes. In 2012, President Obama was again elected by a margin of 332-206 electoral votes and 66-61 million popular votes. As you can see, Obama was elected by comfortable margins each time. However, many of the voters who helped place Obama into office voted for Trump this time around. Does that mean that the same voters that voted for Obama twice have all of a sudden become racists in the four years since the last election? Ridiculous. A truly bigoted nation doesn't elect an African-American to the Presidency by comfortable margins twice. Of course, this kind of rhetoric shouldn't be surprising coming from Van Jones. After all, he's made a career out of race politics, so it's in his professional interest to spin every topic into a race issue. The day that race is no longer a hot-button political issue is the day that he finds himself out of a job.

Unfortunately, the Left's excuses for the loss didn't end there: The Electoral College, the media, independent candidates, the FBI, the Russians, the Democratic party, minorities, and Hillary Clinton herself have all been blamed for the loss. However, instead of tackling each of these excuses in turn, I'll just let it suffice to say that the Left is currently in a tailspin, desperate to find a scapegoat that massages their political ideology rather than accepting the most obvious and accurate explanation: That their movement is simply out of touch with the average American voter. You see, through Obama's 8 years in office, the Democratic agenda has been met with a lot of success on the coasts of America; social justice and liberal progress initiatives thrived in the left-leaning states of New York, Massachusetts, California, Washington, and Oregon. But while that was happening, the heart of America, the states of Iowa, Wisconsin, Michigan, and Pennsylvania were struggling and decidedly less interested in any social agenda and more so in economic policy, an area where they had been left behind. So, it should come as no surprise that when the 2016 Presidential Election came around and the Democrats asked these same states to vote to keep them in office that the answer was a resounding "No".

Instead, these the voters in these states started their own movement, a turn in the tide, if you will, that demands change in the form of a new government that puts the people's basic need of economic security first, rather than frivolous "cultural progress" initiatives. That is what Donald Trump and the Republican Party have promised to deliver, and that is what the American people really need. With a unified Republican government in office starting on January 20th, this is the best opportunity that we have had in a long while to effect real, constructive change and progress. I'll be watching closely, because if they manage to succeed, American's best days will truly lie ahead.

STEMulus Package

The April 2016 jobs report came out today. It indicates that U.S. employers added 160,000 jobs this past month, the lowest rate in 7 months as economic growth is moderating. President Obama touts this as a success story, declaring that he has added 14 million jobs since taking office, 3rd-most among U.S. Presidents (behind FDR and Reagan). However, the real story is one level deeper.

While President Obama's figures are accurate, the one statistic that is conspicuously absent is the quality of the jobs that are being added. If you dig a little deeper, you'll see that the jobs lost during the recession were mostly middle-class manufacturing jobs. On the other hand, most of the jobs added since have been entry-level and temporary service-sector jobs. This helps explain why while jobs are being added, wage growth has been stagnant.

This is a bad deal. Replacing good jobs with poor ones isn't going to do the economy much good in the long run. The good news is that there are plenty of good jobs available in the U.S. The bad news is that we have a skills deficit that is preventing us from filling those jobs, because unlike the jobs lost during the recession, these require education and training.

Case in point, it is projected that the U.S. will add over 1.5 million positions for Software Engineers over the next 10 years. However, the U.S. is only graduating about 40,000 Software Engineers per year. Do the math and you see that at that rate, we'll be short about 1.1 million Software Engineers. It goes without saying that these are good, lucrative jobs; jobs that are ripe for the filling but that we simply don't have trained people to take.

The problem is that we have a skills management issue. The jobs of the 21st century economy are here and they're good ones, but they require skills that our people aren't getting. Only 8% of all U.S. college students are in STEM (Science, Technology, Engineering, and Math) programs. By comparison, in China, where the educational system does much more to emphasize careers, about 30% of all college students are studying STEM. If we don't have enough Americans to fill these STEM positions, guess where they're going to go?

At the same time we're facing this problem, our political leaders have chosen to fight over - wait for it - raising the minimum wage. Seriously? Compared to the real employment problem we're facing, the minimum wage is little more than a distractionary issue. Instead, we desperately need to focus on giving our people the skills and training they need to succeed in today's economy.

In a nutshell, our problem is that we have a 20th century workforce and a 21st century economy. Fixing this begins with education, where we need to emphasize STEM as a cornerstone for success in today's world; there's no reason why a developing nation should be graduating more engineers and scientists than the U.S. We already have the most advanced and capable higher education system in the world; if only we can use it in conjunction with the private sector to give students the skills they need to be successful today, sub-2% economic growth, wage stagnation, and underemployment will quickly become the issues of yesterday.

Trump Card

With Super Tuesday behind us and another 595 delegates awarded, Businessman Donald Trump looks to be unstoppable in his quest to become the Republican Party's nominee for the 2016 Presidential Election. Currently, Trump holds commitments from 319 delegates, almost a hundred more than the next closest candidate. Polls currently have Trump ahead in most of the upcoming primaries/caucuses, including the crucial March 15 contests of Florida and Ohio; wins in those two states could virtually guarantee Trump the nomination.

Many in the Republican Party are concerned about the implications of a Trump candidacy both for the party and the nation; his eccentricities and character flaws are well-documented (so I won't bore you with rehashing them here), and most Americans not directly supporting his candidacy harbor a highly negative opinion of him. This has brought into question his ability to win enough "mainstream" support to win a general election, as well as the impact he will have on the image of the RNC going forward.

In this unfamiliar scenario, three questions come to mind: What, exactly, has led to Donald Trump's rise to prominence? What mistakes did the other Republican candidates make that allowed Trump to obtain the mantle of frontrunner? And what can be done now to prevent Trump from winning the nomination? I'll explore each of these questions and present my answer for each one.

From Novelty to Frontrunner

For all of his shortcomings, Donald Trump has one thing going for him: He has a larger-than-life persona. Whether it's because of his multi-billion dollar business, his reality TV show, or his foray into politics, everyone knows Donald Trump. However, I think the more interesting question is this: What does he represent? What does a New York City jet-set billionaire have that makes him so appealing to the American blue-collar Average Joes that they will turn out in huge numbers to support him?

Simply put, many Americans are upset. They're upset with the economy, where low-skill jobs that offer middle-class wages are quickly disappearing. They're upset at the state of the world, where the threat of terrorism is at its highest point in years. And they're upset with the government, which has been stuck in political gridlock for years. These same Americans see Donald Trump as the answer to these issues, an outsider who isn't afraid to clean house and make the bold moves that'll get the country running again without regard for political expediency (as opposed to the other candidates, who ostensibly represent the status quo). After all, why wouldn't someone who possesses the acumen to build and run such a successful business empire on sheer force of will be a good fit for President of the United States?

Misunderestimated

At the beginning of the race, the other Republican candidates didn't see Trump as being a serious threat. After all, they were the established figures in the party and he was a political newcomer who had to pay people to attend his campaign announcement! How could anyone take him seriously as Commander-in-Chief? In fact, you could see this dismissive attitude toward Trump in the early debates where the other candidates scarcely acknowledged his presence and instead took potshots at the Democrats and one another. In retrospect, this was a missed opportunity to cut Trump down to size early.

In addition, the fracturing of the Republican field hasn't helped. Trump's support comes mainly from those looking for an "non-establishment" candidate and he has rallied almost all of those voters behind his campaign. However, the non-establishment supporters are still outnumbered by the "establishment" supporters; should these voters rally behind a single candidate (like the non-establishment voters have done for Trump), then that candidate would likely win the party's nomination. The problem is that there were/are quite a few establishment candidates and each have been hesitant to drop out; Rand Paul only dropped out after Iowa, Chris Christie didn't drop out until after New Hampshire, Jeb Bush waited until after South Carolina, and John Kasich's campaign is still active.

While these candidates haven't won many delegates, they have kept support away from Ted Cruz and Marco Rubio, the two who could conceivably defeat Trump one-on-one. Had the Republican candidates who knew from early on that the nomination was unwinnable dropped out then, more support would have been opened up to rally behind a non-Trump candidate.

No Lead is Safe

As imminent as a Trump candidacy looks now, it still isn't a foregone conclusion. Many elements of the Republican Party are strongly opposed to him and he still needs to win over 900 additional delegates to clinch the nomination. In addition, Cruz and Rubio had strong performances on Super Tuesday (Cruz winning Oklahoma, Texas, and Alaska, and Rubio winning Minnesota), which could be a telling sign that Trump's campaign can be defeated. Should the remaining non-Trump candidates win enough delegates to prevent Trump from clinching the nomination before the convention, this would force a "brokered" convention.

In the event of a brokered convention, the delegates are free to vote for whichever delegate they choose. In this scenario, the delegates who were previously pledged to candidates other than Trump will need to coalesce around a single "alternative" candidate to defeat Trump. Since it is understood that in this scenario the non-Trump delegates will outnumber the Trump delegates and the non-Trump delegates will be unlikely to support Trump, this would effectively give the nomination to the alternative candidate (likely Cruz or Rubio).

In conclusion, while Donald Trump's rise to the front of the RNC race has been remarkable (for better or for worse), the fact is that it's the stresses that today's world has placed on everyday Americans that have helped put him there. In addition, missteps by the Republican establishment early in the race allowed Trump to shore up his support build a lead to the point where he's nearly unsurpassable. However, all is not lost: Trump can still be defeated and there are still many more primaries/caucuses yet to take place. Should the Republican candidates (and their supports) play it smart from here on out, there is a possibility that they could Dump the Trump.

Granite State of Mind

Last night, New Hampshire held its Presidential primary and unsurprisingly (at least, if you've been following the polls), Bernie Sanders and Donald Trump each scored resounding victories. And while this is only one state and the nomination process is far from over, I think that the results of last night's primary tell us a lot about the state of the election.

Let's start on the Democratic side. Well before her candidacy was even officially announced, everyone knew that Hillary Clinton was going to be in the running for the nomination. There was a lot of excitement among Democrats at this prospect; after all, they had just successfully voted the first black President into office to much fanfare, so it follows that the novelty of putting the first woman into office would be too much to resist.

However, novel as that idea may be, Hillary is tied very closely to the Democratic "establishment" (traditional party center where most of the party support and resources are focused), which has become very unpopular since the last election. This is especially true with young Democrats, who feel that they were betrayed by the broken promise of "Change We Can Believe In" when they elected Barack Obama (the Affordable Care Act, or "ObamaCare", was far from the health care revolution it was sold as, and the rest of Obama's time in office has proven unproductive).

Instead, young Democrats have embraced the "non-establishment" (standing within the party but apart from the "establishment") candidate Bernie Sanders, a self-described socialist who has made initiatives like universal single-payer health care, tuition-free higher education, and the dissolution of major financial institutions the main points of his campaign. Sanders' more revolutionary goals of an expanded welfare state and higher taxation strike a chord with young, idealistic voters who are still recovering from the recession and want to see more social guarantees. From here on out, the Democratic nomination looks to become a pitched battle for the party's future.

On the Republican side, Donald Trump has finally broken through and scored the big win that many had been predicting since he rose to frontrunner status. After his upset loss in Iowa, some observers had been questioning whether the polls showing huge national support for Trump were accurate, but it seems as if the New Hampshire primary has put those doubts to rest. Like on the Democratic side, there is a divide in the Republican party between the establishment and the non-establishment, with the latter group showing some real muscle after propelling Cruz and Tump to victories in Iowa and New Hampshire, respectively.

The real question now is if another Republican candidate (Rubio, Kasich, Bush) can round up enough establishment support to defeat Donald. Before this primary, I would have told you that Rubio had the bet shot at doing just that, but his gaffe at this past Saturday's debate (repeating himself three time while being mocked for doing so by Christie) seems to have hurt him (finishing 4th in New Hampshire where he was projected to finish 2nd beforehand). However, now that Christie and Fiorina are both dropping out, more mainstream Republican support should start freeing up to coalesce around a candidate who can serve as an alternative to the Trump firebrand.

That said, the South Carolina debate is this Saturday (8:00 p.m. CST on CBS) with the primary following a week thereafter. As we saw in New Hampshire, a debate this close to a primary can have a significant impact on the outcome and this field is tighter now than it has been in quite some time. If you have the opportunity, be sure to tune in!