Will Retailers Choose Price Tag System That Routinely Bilks Consumers?

Will Retailers Choose Price Tag System That Routinely Bilks Consumers?

Reprinted with permission from AlterNet.

In the beginning there were no fixed prices. Every transaction involved a negotiation between buyer and seller. Then in 1861, as Guardian reporter Tim Adams informs us, Philadelphia retailer John Wanamaker introduced price tags, along with the slogan, “If everyone was equal before God, then everyone would be equal before price.” Wanamaker’s stated intent was to establish “new, fair and most agreeable relations between the buyer and the seller.”

For the next 150 years, fixed pricing became the norm. Companies determined prices either by pegging them to those of their competitors or by calculating the cost of a good or service and adding a profit, with an occasional white sale or going-out-of-business sale, or discounted day-old bread.

In the 1990s came the internet, and in the 2000s, online shopping and smartphones. Prices could be changed remotely and frequently. Initially businesses changed their prices largely to take advantage of a shortage of supply (e.g. Uber with its surge pricing) or an increased demand (airlines, in essence, auctioning off tickets to last-minute customers).

Big data emerged and with it the ability for businesses to know their customers in a most intimate and detailed fashion. Initially, sophisticated algorithms allowed businesses to individualize ads. Now as they’ve gathered even more of our personal data they’ve begun to individualize prices. As Adams notes, the travel site Orbitz calculated that Apple Mac users would pay 20-30 percent more for hotel rooms than users of other brands of computer and adjusted its pricing accordingly. Jerry Useem in the Atlantic maintains the price of Google’s headphones may depend on how budget-conscious our web buying history reveals.

Electronic price tags may soon allow dynamic pricing in brick and mortar stores. Such tags are already in stores in France and Germany and parts of Scandinavia.

The Guardian reports that B&Q, the largest home improvement and garden center retailer in the UK and Ireland, has tested electronic price tags that could change the price of an item, based on which customer is looking at it, something it can derive from the Wi-Fi connection to the customer’s mobile phone. Not yet in stores, but that may be just a matter of time.

Dynamic pricing strives to maximize the seller’s profit by raising the average price he receives. Economists believe that is simply good business tactics. The rest of us remain unconvinced.

We don’t like being taken advantage of. More than half the states have anti-scalping laws, a response to brokers buying up thousands of concert tickets, shrinking supply, and allowing them to charge concert goers far more than the face value of the ticket. Last year Congress got into the act, passing a law that makes it illegal for brokers to use software that bypasses online systems designed to limit the number of tickets an individual can purchase. But these laws target only a small slice of the retail sector and aren’t vigorously enforced.

We’ve also taken action to stop sellers from taking advantage of a scarcity imposed by natural disasters to charge exorbitant prices to desperate customers. Over 30 states have enacted laws against such price gouging.

But as Ramsi Woodcock, professor of legal studies at Georgia State University, observes, those outraged by Delta’s reportedly asking $3,200 for a ticket out of Florida as Hurricane Irma approached should be aware that dynamic pricing enabled Delta to charge the same price to last minute customers two weeks before.

We’ve imposed no limits on dynamic pricing, although we’re nibbling around the edges of imposing some constraints on the sale of our personal data. Woodcock believes dynamic pricing could have anti-trust implications. Anti-trust is justified by many as a way to stop or break up monopolies that could artificially raise prices and reduce total consumer welfare. In a detailed article, Woodcock arguesthat big data enables “price discrimination (that) extracts more value from consumers than uniform pricing, by tailoring price to the maximum level tolerated by each consumer.” And thus warrants anti-trust enforcement.

David Morris is co-founder of the Institute for Local Self-Reliance and directs its initiative on The Public Good. He is the author of “New City States” and four other non-fiction books. Follow him on Twitter: @PublicMorris.


It’s Time To Take America’s Billionaire Class Head On

It’s Time To Take America’s Billionaire Class Head On

Reprinted with permission from AlterNet.

Combatting defeatism may be our single most important psychological objective in the wake of the election. We need to revive the spirit embodied in Barack Obama’s vague but hopeful campaign slogan in 2008 — “Yes We Can.” At the federal level this is a time to expose, to educate, and to resist. But at the state and local level we can act proactively to fashion strategies that both embrace progressive values and directly benefit those who mistakenly voted for Donald Trump as an economic savior. This is the first in a series of pieces focusing on what can be done.

The Giveaway

Over the next 6-12 months Congress will almost certainly give the richest 1 percent of the population an income tax gift totaling some $75-150 billion. The 1 percent, with annual incomes averaging $1.3 million, will capture 47 percent of the tax cuts for an average annual tax saving of $214,000 each, the non-partisan Tax Policy Center estimates based on Trump’s proposal, which does not differ dramatically from that of the House Republicans.

The top 0.1 percent, a population comprised of only 117,000 taxpayers who earn, on average, $37 million a year, will see their tax bill slashed by $1.3 million. The top .001 percent of taxpayers, fewer than 1,400 individuals, who earn a dizzying $160 million annually, may see their bank accounts swell by some $10 million.

Profligacy is reserved for the few. For the many this administration and Congress will be downright tightfisted. The bottom 20 percent of the population, some 80 million low-income and working-class people, will receive on average a $100 income tax reduction. By one estimate, given the whole package of proposed changes, almost 9 million families could actually see their taxes increase.

Adding insult to injury, the Trump tax plan would not only give the wealthy far larger dollar benefits, but it actually reduces taxes on the wealthy by a greater percentage.

The Response

It will be virtually impossible to stop this unprecedented giveaway. But states can fight back. They can raise state income taxes on the rich in proportion to the reductions at the federal level, diverting as much of the massive federal tax gift as possible from the pockets of the 1 percent into public investments, public services, and support for the 99 percent.

State-based campaigns that focus on progressive income taxes will illuminate the dangers of the increasing concentration of private wealth and its relationship to the increasing impoverishment of public services, wage stagnation and widespread privation. They can address fundamental questions. How are we connected? Do we have a responsibility to one another and to future generations?

Class Matters

Those who now run Washington insist the “me” should take precedence over the “we,” that the private is superior to the public. Michigan Republican State House Speaker Tom Leonard, who proposes eliminating the state’s income tax, already the lowest in the country, justified his stance by invoking a common meme, “This is the people’s money, not ours.” We need to make clear that, given the current distribution of tax breaks and the unprecedented concentration of wealth, the attitude of the 1 percent might more accurately be summarized as, “This is our money, not the people’s.”

Despite the election of Donald Trump, a clear message of this election was that the American people believe that class matters. They are outraged that the top 1 percent have captured 99 percent of all new income generated since 2009 and amassed more wealth than 95 percent of the population. They understand the inherent unfairness and danger when 400 individuals have more wealth than 150 million Americans.

Bernie Sanders emphasized this unfairness and promoted a steep increase in taxes on millionaires and came within a whisker of being the Democrats’ nominee. Hillary Clinton favored raising taxes on the rich and won nationally by almost 3 million votes. And at least one pre-election survey by the Rand Corporation found that over half of those intending to vote for Trump supported increasing taxes on the wealthy.

The Consequences

The tax gift to the rich will demand real sacrifice from the poor and the middle class—more closed state parks, fewer health services, overcrowded classrooms, more prison unrest. The House tax plan will reduce federal revenues by $3 trillion in the first 10 years; Trump’s plan will reduce them by $9.5 trillion according to the Tax Policy Center. The administration appears to agree with the higher estimate given that Trump’s staff proposes federal spending cuts of $10.5 trillion over the next decade.

The brunt of these cuts will occur in the non-defense part of the discretionary budget. Spending on Medicaid, science, veterans’ benefits, food stamps, job training, health research, disaster assistance, housing assistance, national parks, roads and transit will suffer disproportionately. Indeed, Trump proposed during the campaign an increase in military aid to be “fully offset” by reduced spending on social insurance and public works.

These reductions will put even more pressure on already strapped state and municipal budgets. Federal government spending comprises, on average, 30 percent of state revenues. This varies from a high of 43 percent in Mississippi to a low of 21 percent in Hawaii. Red states, where politicians rail against federal spending, are more dependent on Washington than blue states. A recent Associated Press survey found that 33 states are currently dealing with a budget shortfall or expect to confront one in the coming fiscal year.

Why Raise State Income Taxes?

The premise of state-based campaigns focusing on fairness and the obligations of citizenship is that the major problem is not a stagnating economy. The economy is growing. The problem is that all the benefits of that growth are going to a tiny portion of the population while the rest of us experience stagnating wages, declining benefits, and dwindling public services.

Within states the income dynamic mirrors that of the nation as a whole. According to the Center for Budget and Policy Priorities (CBPP) in Arizona, the top 1 percent increased their incomes by 73 percent while the bottom 99 percent saw their incomes drop by 6 percent. In Washington the difference was 142 percent to 1 percent; in Wisconsin it was 120 percent to 4 percent and in Indiana 76 percent to zero.

Raising state income taxes and thereby diverting federal tax breaks to the wealth into state spending will arguably benefit not only that state, but also the nation. The majority of federal discretionary spending goes to the military, and in the future its proportion will likely increase. Meanwhile all state spending goes to health, education, welfare, and transportation. The economic impact of military spending is far less than that of non-defense spending. Each military dollar grows the economy by 60-70 cents, according to research by Robert Barro and Charles Redlick. On the other hand, each federal dollar spent on food stamps grows the economy by $1.74 and by $1.36 if spent on general aid to state governments, according to Moody’s Mark Zandi.

State campaigns can also make a strong case that giving money to the rich is an ineffective and inefficient way to boost the economy.

Giving money to the rich has a similar low-yielding dynamic to spending it on the military. Since the rich spend much less of a tax cut than those of lower incomes tax cuts for high earners boost employment less than those for low earners. An analysis of the 2008 Bush stimulus cuts found that for every $1 in cuts, high income households spent 77 cents while low income spent $1.28. (The authors explain that a stimulus can increase average total spending by more than its own value, if it tips the balance for enough people to make large purchases like computers or cars that are purchased on credit.)

Taxing Labor and Capital

Congress wants to cut the tax on capital, which because of past tax cuts, already is taxed at about half the rate as income from labor. Most of us earn our income by working. The rich are different. They earn most of their money from capital, not labor. In 2007, wages and salaries accounted for only 40 percent of the income of the richest 1 percent, according to Professor Alexander Hicks. Sixty percent came from profits, dividends, interest, rent, and capital gains. For the richest 0.1 percent, the figure is almost 70 percent.

Those who favor even further cuts in taxes on capital argue this will increase private savings, which will increase investment. The evidence is that it will do neither. Indeed, the Congressional Research Service has examined the issue from the opposite direction addressing the question, “What would be the impact of increasing capital gains tax rates?” It concludes that doing so “appear(s) to increase public saving and may have little or no effect on private saving. Consequently, capital gains tax increases likely have a positive overall impact on national saving and investment.”

Most states tax income from capital at the same rate as income from labor. Thus raising the state income tax will raise the state tax on capital gains. In a state like California, the top tax rate on income from capital, at 13.3 percent, nearly that of the federal rate, if Republican tax proposals become law.

The False Benefit of State Tax Cuts

State tax cuts do not stimulate economic growth. They generate deficits, which because of the states’ constitutional requirement to balance their budgets, results in reduced public spending, which itself reduces economic growth. According to economist Robert Lynch, “there is little evidence that state and local tax cuts—when paid for by reducing public services—stimulate economic activity or create jobs…”

Researchers at the Urban Institute and Brookings Institution conclude, “We find that states have no good reasons to believe that cuts in income tax rates will bring the desired benefits. Yet, states continue to erode their tax bases in the name of economic growth during a time when few states can afford to cut services, such as education and infrastructure repair that are critical for both businesses and households.”

As Michael Leachman and Michael Mazerov of CBPP point out, the historical evidence is compelling. In the 1990s states with the biggest income tax cuts experienced job growth during the next economic cycle at an average rate only one-third as large as states with less significant or no cuts. From 2000 to 2007 four of the six states that reduced personal income taxes significantly saw their share of national employment decline. (The other two states are major oil and natural gas producers.) Since 2010, four of the five states that have enacted the largest personal income tax cuts have had slower job growth afterwards than has the nation as a whole.

Kansas is the poster child for this dynamic. After its legislature slashed personal income taxes in 2012, state revenue decreased by $1 billion a year. Newly elected Governor Sam Brownback insisted, “Our new pro-growth tax policy will be like a shot of adrenaline into the heart of the Kansas economy.” Instead, since December 2012, Kansas experienced job growth of 2.4 percent compared to 6.9 percent in the rest of the nation.

Some argue that raising taxes on the rich will lead them to leave the state, resulting in a net loss in state revenue. The empirical evidence contradicts that argument. An analysis of New Jersey, a good test case because the tax increase there was large (from 6.37 to 8.97 percent) and many New Jersey residents can easily move to neighboring states New York, Pennsylvania, and Connecticut without changing where they work, found little movement. Charles Varner and Cristobal Young of Stanford found that only 80 of the roughly 40,000 people who earned over $500,000 a year left New Jersey. Professor Varner observes, “the loss in revenues … is very small compared to the revenue gain.”

After an extensive review of the literature, Mazerov concludes, “No state has ever lost revenue by raising taxes on rich people.”

A state-based campaign could personalize the impact of inequitable tax cuts and the resulting inequitable spending cuts. It could focus on the meaningless of additional money for billionaires and the centrality of money for a growing number of us.

Consider what has happened in Oklahoma. Oklahoma reduced its income taxes, resulting in over $1 billion a year in reduced state revenues. The wealthiest 1 percent of households cumulatively received nearly the same share of the tax cuts as the bottom 80 percent. The median Oklahoma household saw tax reductions of $228, compared to $15,519 for the average household in the top 1 percent. The bottom 20 percent of households received an average of just $4 per year.

While gaining virtually nothing from the tax cuts, the vast majority suffered from the accompanying spending reductions. The state’s Medicaid agency eliminated dental services for low-income adults.

More than 7,300 families are on a waiting list for home and community-based services for those with developmental disabilities, and the wait has extended to 10 years. The number of teachers decreased, class sizes grew, and class offerings and programs were eliminated. An acute teacher recruitment and retention crisis has forced districts across the state to issue emergency certifications to under-qualified teachers or leave positions unfilled. Oklahoma’s correctional facilities are operating at more than 10 percent above inmate capacity but with 30 percent less staffing, creating threats to the safety of staff, prisoners, and the public.

State Income Taxes: The Lay of the Land

In the 1970s, on average, states raised their income tax rates. In 1980 they were two times higher than sales tax rates. Beginning in the 1980s, however, states consistently lowered income taxes while raising sales taxes. Today, according to Elizabeth McNichol of CBPP, the median state sales tax rate is equal to the median state top income tax rate.

The result has been to make state and local taxes, on the whole, regressive. The share of income paid by the poorest 20 percent is twice that of the richest 1 percent. Unsurprisingly, the disparity is widest in states without an income tax. The Institute on Taxation and Economic Policy reports that Washington’s working class pays seven times more taxes, as a share of income, than its super-wealthy. Maine and Minnesota’s tax structures come closest to treating the poor the same as the rich. In fact, Maine’s recently passed income tax surcharge on the wealthy may make it the only state that has a progressive tax system when all state and local taxes are included.

Typically, personal income taxes generate one third of state revenues in states that have an income tax. As noted above, federal spending accounts for another 30 percent of state revenues.

Forty-three states impose an income tax. Seven impose no income taxes (AK, FL, NV, SD, TX, WA, and WY). Eight states have flat taxes (CO, IL, IN, MA, MI, NC, PA, and UT).

Top marginal tax rates for states imposing an income tax vary by a factor of three, ranging from a low of 4.25 percent in Michigan and 4.54 percent in Arizona to 10.15 percent in Maine and 13.3 percent in California.

A History of Failure and Success

Can a campaign focusing on fairness, equity, and responsibility win? The signs are mixed.

Between 2000 and 2009 10 states raised income taxes on the wealthy. Between 2005 and 2015 about a dozen decreased them. In some cases the same state both raised and lowered income tax rates. New York, Wisconsin, New Jersey, and Maine fall in that category.

In 2012, by a wide margin, Californians voted to raise top tax rates by 30 percent. (Only 3 percent of taxpayers are affected.) In 2016 they voted to extend that tax hike.

In 2016, the people of Maine voted narrowly to approve a 40 percent hike in their top tax rate despite the opposition of the governor and most political leaders. The increase will raise $142 million the first year and $12 million additionally each year thereafter.

Both California and Maine’s initiatives dedicated the new money to education.

On the other hand, in 2010, Washingtonians decisively defeated an initiative to introduce a state income tax for the first time, initially imposed just on the rich. In 2011, Colorado voters just as decisively rejected an initiative to raise the income tax despite the increased revenue being dedicated to education. (In 2016, an initiative petition, targeting a modest income tax increase restricted to the rich wasn’t submitted in time.)

Constitutional barriers will pose high barriers to progressive tax reform in some states. This appears to be the case in Illinois and may be the case in Colorado. Michigan’s 1963 state constitution flatly states, “No income tax graduated as to rate or base shall be imposed by the state or any of its subdivisions.” Louisiana, Oklahoma, and California require a two-thirds favorable vote in the legislature to raise taxes, although the question can be put on the ballot by petition.

The Changing Landscape

State campaigns may be aided by the changing landscape of tax reform. In the face of deteriorating roads and overcrowded schools, even those who ideologically favor reducing taxes are conceding that increased revenues are needed. And drastic cuts in federal aid will exacerbate the problems faced by state legislators. Currently they almost always favor increasing sales taxes. For example, in recent years some 20 states have raised gas taxes to pay for sorely need infrastructure. Nevertheless, once the conversation focuses on how to tax rather than whether to tax, the discussion, but once the tax taboo is overcome, the conversation about equity and the income tax may be facilitated.

New York Governor Andrew Cuomo is promoting a tax hike for millionaires to pay for the state’s $3.5 billion budget deficit. Montana’s Governor Steve Bullock similarly proposes a tax hike on the wealthy. Washington Governor Jay Inslee advocates a tax on capital gains. Alaskan Governor Bill Walker raised the possibility of a new state income tax to pay for that state’s large budget deficit, although he recently backed off from that proposal.

Voters may be showing their dissatisfaction with continual tax cuts that result in deteriorating public services—even in Red states. In November 2016 the Republican voters of Kansas declared their frustration with state policies that consistently cut public services to reduce deficits caused by tax giveaways to the rich. The Atlanticsummarized some aspects of that dissatisfaction, “Moderate Republican candidates ousted 14 conservative state legislators allied with the governor in primary elections across the state, while anti-Brownback contenders won nominations for open seats in another seven races.”

People who ideologically oppose taxes often change their minds when their car hits a deep pothole. Or when the response time for 911 calls significantly lengthens. Or when their kids can no longer attend after school activities. Or when state parks are closed.

Private splendor and public squalor has never been more evident. While the recent election gave federal power to those who would widen the gap, state and local governments, the governments closest to the people, are where increasing needs, the perilous state of public services, and the growing disparity between the super-wealthy and the rest of us may offer fertile ground for progressive strategies that largely benefit those who voted for Trump.

David Morris directs The Public Good Initiative at the Institute for Local Self-Reliance.

IMAGE: A street sign is seen in front of the New York Stock Exchange on Wall Street in New York, February 10, 2009. REUTERS/Eric Thayer

Three Ground-Breaking Progressive Initiatives That Are Under the Radar This Election

Three Ground-Breaking Progressive Initiatives That Are Under the Radar This Election

Reprinted with permission from AlterNet

On November 8th citizens in 35 states vote on 163 ballot initiatives. They cover a wide range of subjects (e.g. marijuana, minimum wage, taxes, gun control). To my mind, initiatives in three states — California on reducing drug prices, South Dakota on revamping its political system, and New Mexico on the inequitable use of bail — stand out as having a potentially broad national impact.

California Takes on Big Pharma

Californians will vote on a ballot initiative that requires state agencies to pay no more for any prescription drug than the lowest price paid by the U.S. Department of Veterans Affairs (VA) for the same drug. It would apply to more than 1 million state and public university employees as well as 3 million Medicaid patients (although it would exclude 10 million Californians on managed care Medicaid plans.)

Pharma Exec magazine warns its readers, passage of Proposition 61, “would shake the rafters of every single state drug program in the nation, as well as the federal Medicaid and Medicare programs.” It’s a warning well with heeding. Federal law entitles all state Medicaid programs to the lowest prescription drug prices available to most public and private payers in the U.S., excluding the VA.  Medicaid discounts ordinarily are in the 20 percent range, but VA discounts can be as high as 42 percent.  Thus the California measure could extend the VA’s low drug prices to Medicaid programs serving tens of millions of additional people nationwide.

As of October 20, pharmaceutical companies had spent more than $109 million to defeat the measure compared to just $15 million for supporters.  Nevertheless, the initiative appears headed to victory.

The pricing of drugs has become a national disgrace.  Horror stories abound. Turing Pharmaceuticals purchased the rights to a generic AIDS drug and promptly raises its price from $13.50 to $750 a pill.  According to Forbes, prices increased by 100 percent or more between 2013 and 2014, in 222 generic drug groups. Specialty drugs have become astronomically expensive. Reuters reports that in 2014, annual medication costs of 139,000 Americans exceeded $100,000, nearly triple the number who reached that level a year earlier.

The pharmaceutical industry is astonishingly profitable.  Median return on assets is more than double the rest of the Fortune 500, according to Alfred Engelberg.  The industry is awash in cash.  Pfizer holds $74 billion in unrepatriated profits overseas and Merck holds $60 billion, enough to fund their respective annual research budgets for 10 years.

While the industry reaps the financial benefits, the taxpayer bears much of the financial cost. Some observers calculate that direct and indirect government support is such that private industry pays only about a third of R&D costs.  Pouring salt in he taxpayers’ wounds, the government gifts these largely publicly funded drugs long-term patent protection. Which is one reason, as the Washington Post reports, drug companies focus on marketing, often spending $2 for marketing for every $1 spent on research.

Despite repeated scandals, the federal government has been unwilling or uninterested in stepping in. Congress hoots and hollers about the outrageous price hikes but specifically prohibits Medicare from negotiating with drug companies for price discounts.  Federal law allows the government to unilaterally lower the price of drugs developed with government funds when a company is gouging customers, but the Administration so far has refused to wield this power.  The government could also allow the import of less expensive equivalent drugs, but the Administration has refused to exercise this authority either.

Which leaves it up to the people to assert their own authority, in those states where this is possible. That’s what Californians have done.

South Dakotans take on the political establishment

South Dakotans will vote on three initiatives that, if taken together, could change the face of state politics.

Amendment V converts all state elections into nonpartisan contests. There would no longer be Democrat or Republican primaries. The top two finishers in the first round of voting would face off in the general election. California, Louisiana and Washington have similar run-off systems but in those states candidates still run with a party label.  That would be prohibited in South Dakota, making it the only state apart from Nebraska to have purely non-partisan elections. (Nebraska had its own political revolution in 1934 when its citizens rose up against an inefficient and unresponsive political system and voted not only to convert to nonpartisan elections but to introduce the nation’s first and only unicameral state legislature.)

Amendment T creates a commission to redraw state legislative districts every ten years when a new census comes out.  Ordinarily redistricting is done by legislators themselves, but as Matt Sibley, one of the organizers for Amendment T, told Governing Magazine,  “There is an inherent flaw in the system when legislators are picking out there own legislative districts.” In-house redistricting often results in a number of uncontested legislative races, diminishing the value of the franchise for those living in that district. The new commission will be barred from considering the party affiliation of voters and location of incumbent lawmakers when drawing new maps.

Measure 22 is the most complex of the three initiatives, requiring many changes to election law.  The most important is the creation of Democracy Credits.  Each registered voter will receive two $50 Democracy Credits they can donate to state legislative candidates who agree to participate in at least three public debates and cap the amount of private money they receive per contributor.  Democracy Credits, or Democracy Vouchers as they are sometimes called were first adopted in 2015 by initiative by Seattle voters. (Washingtonians are also voting on the issue. Initiative 1464 gives every registered voter three Democracy Credits of $50 to donate to state legislative candidates who agree to certain conditions.)

New Mexico takes on debtors’ prisons

In November New Mexico may become the first state to directly address a basic inequity of the justice system: the use of bail.

In 1987 the Supreme Court declared, “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” Nevertheless, in most of America, lower-income people who have been arrested and can’t afford bail sit in jail for weeks, months, even years before seeing a judge. Their involuntary incarceration can result in lost jobs, lost income and increased family stress all of which raise the likelihood of guilty please and reoffending.

According to the Department of Justice, 95 percent of the growth in the jail population since 2000 is attributed to an increase in pretrial detainees, Christopher Moraff reports in Next City. According to the Vera Institute of Justice, the average number of days that people stay in jail awaiting trial has increased from 14 days in 1983 to 23 days in 2013. Nationwide, according to a Harvard Law School report, 34 percent of defendants are kept in jail pretrial solely because they are unable to pay a cash bond. In 2011, 60 percent of local jail inmates were pretrial detainees and 75 percent of those detainees were charged with property, drug or other nonviolent offenses.

The perverse and unjust consequences of bail have begun to receive national attention as part of the larger concern about the revival of issue of the revival of debtors’ prisons. In March, the Justice Department sent a letter to judges cautioning them that employing “bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release” is a violation of the Fourteenth Amendment guarantee of equal protection.

In 2015, Equal Justice Under Law and the Southern Center for Human Rights filed a class action lawsuit against the city of Calhoun, Georgia for its practice of requiring bail for indigent defendants even when that would force them to remain in jail. The case involved a disabled man jailed for six days because he couldn’t afford to pay a $160 fixed cash bail bond. In January the District Court ruled in their favor, issued an injunction against the city of Calhoun, and ordered it to implement a new bail scheme and release any misdemeanor arrestees in the meantime.

The city has appealed, arguing, “the Constitution does not guarantee bail, it only bans excessive bail.”

In August the Department of Justice, for the first time submitted a formal amicus brief on the subject of bail to the 11th Circuit Court of Appeals on behalf of the plaintiffs.

Some jurisdictions have begun to change their pretrial release policies so that danger to the community and likelihood of flight are the main factors to determine pretrial release, not whether the accused can pay bail, with significant success. In a New York City pilot program, 1,100 people were granted supervised relief; 87 percent showed up to court when required without incident.  From July 2013 to December 2014, Mesa County, Colorado was able to reduce its pretrial jail population by 27 percent without negative consequences for public safety.

Washington, D.C. has run an essentially cashless justice system for those accused of misdemeanors for many years. Nearly 88 percent of defendants in D.C. are released with non-financial conditions. Between 2007 and 2012, 90 percent of released defendants made all scheduled court appearances; over 91 percent were not rearrested while in the community before trial. Ninety-nine percent were not rearrested for a violent crime.

The New Mexico initiative originated with a murder case in which the defendant, remained in jail for more than two years without going to trial even though he agreed to wear a GPS device, make regular contact with the court and was not considered a danger to the community or likely to flee. The state Supreme Court rule in favor of the defendant. A task force recommended an amendment to the “right to bail” provision in the New Mexico constitution.

Constitutional Amendment 1 is a legislatively referred initiative passed with broad bipartisan support. No group is campaigning against it. Perhaps because it is a result of legislative action, the initiative reflects the give and take of the legislative process. Thus the Amendment also gives judges more discretion to keep dangerous people in jail — even if they can afford bail. A study from the Laura and John Arnold Foundation shows that nearly half of the highest-risk defendants are released pending trial while low-risk, non-violent defendants are frequently detained.

Perhaps more important, negotiations have resulted in final language more problematic than the original. Originally the Amendment was clearly and directly stated: “A person who is not a danger and is otherwise eligible for bail shall not be detained solely because of financial inability to post a money or property bond.” The final language reads, “A defendant who is neither a danger nor a flight risk and who has a financial inability to post a money or property bond may file a motion with the court requesting relief from the requirement to post bond. The court shall rule on the motion in an expedited manner.”

Some worry the additional conditions might raise barriers to achieving the objective. But most are optimistic that the New Mexico law will break new ground in efforts to make the justice system more equitable. New Mexico Supreme Court Chief Justice Charles W. Daniels, a prime mover behind the initiative contends, “There is nothing I’ve done or will do on the court that is going to be a more important improvement of justice than getting this amendment passed.”

Whatever the outcome of the elections, a tip of the hat is in order to the citizens of California, New Mexico and South Dakota for giving themselves the opportunity to directly address some of the key problems facing the country.

IMAGE:  jimmywayne via Flickr

How The GOP Gamed The Voting System To Dominate And Why Elections Are An Anti-Democratic Mess

How The GOP Gamed The Voting System To Dominate And Why Elections Are An Anti-Democratic Mess

Two months to elections and counting. Americans will be voting for the entire House, a third of the Senate and the president, as well as all members of state legislative lower houses and usually half of their state senators.

It may be an historic election, an election in which many states will be operating under rules adopted only in the last half dozen years. These rules affect the value of one’s vote and the ease of voting. All of this is occurring in a setting where fewer and fewer federal races are even competitive. Together these impose considerable challenges for those trying to dislodge incumbents, the success of which may depend significantly on the level of voter turnout.

Voter dilution, voter suppression, turnout, the dwindling number of winnable seats: These four key factors will influence the outcome of the 2016 election and determine the future composition of the federal government.

1. Voter Dilution

Every 10 years, per the U.S. Constitution, the number of representatives allocated to each state is determined based on the U.S. Census. The Constitution largely, although not entirely, leaves the manner in which those representatives are elected to the states—and that has left room for manipulation of voting districts to benefit one party or another, also known as gerrymandering.

Gerrymandering is not new. Indeed, the word is more than 200 years old, a combination of the name of a former governor of Massachusetts, Eldridge Gerry, whose party redistricted the state in 1812, and the animal the resulting map of Essex County looked like—a salamander.

The advent of computers in the 1980s made it easier to fine-tune redistricting efforts for partisan purposes, and in the 1990s and 2000s, a wealth of new, easily accessible personal data enabled the creation of detailed voter profiles on a street-by-street, block-by-block basis. As one judge has commented, “Today, modern computer mapping allows for gerrymandering on steroids, as political mapmakers can easily identify individual registrations on a house-by-house basis, mapping their way to victory.”

The next evolution in the redistricting process occurred in 2010 after a handsomely financed and well-coordinated Republican effort to capture state legislative seats proved wildly successful. Going into the election, Democrats held a 60-36 advantage in state legislative chambers. After the election, the legislative advantage dramatically shifted to the Republicans 57-39.

The winners immediately set themselves the task of ensuring permanent control. David Daley, former editor in chief of Salon, explains how in his new book, Ratf**cked: The True Story Behind the Secret Plan to Steal America’s Democracy. The effort, fittingly called REDMAP (Redistricting Majority Project), involved the Republican Governors Association, U.S. Chamber of Commerce and ALEC, with funding by Walmart, tobacco companies and individual millionaires and billionaires. Their tool was an unprecedentedly finely detailed computer model.

The shape of gerrymandered districts were at times bizarre. Consider this map of the 7th Congressional District in Pennsylvania.


The dramatic voter dilution resulting from redistricting has led one federal judge to lament, “the fundamental principle of the voters choosing their representative has nearly vanished. Instead, representatives choose their voters.”

The effects of the post-2010 redistricting have been dramatic. Until 2010, Ohio congressional districts were roughly evenly divided between the two parties. In 2012, while Ohioans cast 52 percent of their votes for Republican congressmen, their House delegation was 75 percent Republican.

In Pennsylvania, Democratic candidates for the House received half the votes, but Republicans won three-quarters of the congressional seats. More than half the voters in North Carolina voted for Democrats, yet Republicans filled about 70 percent of the seats. Democrats drew more votes in Michigan than Republicans, but took only five out of the state’s 14 congressional seats.

Right after the 2012 election, Mother Jones published a visually instructive chart comparing the percentage of House seats won by each party to the percentage of the popular vote that party won. A fair election would be one where the light red line was roughly the same length as the dark red line.

Republican Gerrymandering and the 2012 Election

012 election battlegrounds

Another way to look at this is that in Pennsylvania, Ohio and Virginia, one Republican vote had the same voting impact as 2.5 Democratic votes. In North Carolina, the ratio was 3:1.

Republicans were masters of the art of gerrymandering, but when Democrats had the opportunity, they didn’t hesitate to use similar techniques, although they were unable to achieve the ultimate magic trick of converting a minority of the popular vote into a majority of House seats. In Maryland, Democrats won 62 percent of the combined votes for Congress and 88 percent of the seats. In Illinois, they won 54 percent of the popular vote and 66 percent of the seats.

Democrat Gerrymandering and the 2012 Election


Federal courts have been reticent to intervene in state redistricting disputes. Even when they do, the impact is delayed and often modest. North Carolina’s gerrymandered maps were drawn in 2011, but it wasn’t until February 2016 that a federal court overturned them. In the interval, the state had two congressional elections. As ThinkProgress observes, “the message to lawmakers is clear: go ahead and draw the most self-serving maps you can manage, because even if they are struck down it will take the courts years to do so.”

Within a few days of the court’s decision, the North Carolina legislature convened a special session and promptly redrew the map in a way only marginally better than the previous one. Again a lawsuit was filed. In June 2016, the same federal court that had found North Carolina’s redistricting racially biased in February refused to intercede. The judges did note the declaration of one of the key legislators: “[W]e want to make clear that we are going to use political data in drawing this map. It is to gain partisan advantage on the map. I want that criteria to be clearly stated and understood. I’m making clear that our intent is to use the political data we have to our partisan advantage.” And the judges did not hide their distress: “The Court is very troubled by these representations.” Troubled but powerless, they insisted. “Nevertheless, it is unclear whether a partisan-gerrymander claim is judiciable given existing precedent.” Based on precedent, “the Court’s hands appear to be tied.”

Given the aftermath of the 2010 election, state legislative elections in 2018 and 2020 promise to be bitterly contested. Spending in 2018 may reach levels reached only in presidential election years.

For those wanting to bring fairness to the redistricting process, a non-judicial remedy may be available. Take control out of the hands of self-serving legislators and parties and invest it in nonpartisan citizen commissions. In the 14 states that have direct initiatives, this can be accomplished by a majority statewide vote, as has already occurred in California and Arizona. In 2015, by a 5-4 decision, the Supreme Court upheld Arizonans’ right to do this. An independent assessment of the impact of California’s independent commission found that the process elicited broad bipartisan support and resulted in many more competitive legislative races. Five other states have semi-independent commissions: Washington, Idaho, Montana, Hawaii and New Jersey.

Whatever happens, at least the next two elections should be guided by the political maxim: Vote for your local state legislator as if the Congress of the United States depended on it. Because it will.

2. Voter Suppression

In 2008, the Supreme Court upheld an Indiana law requiring all voters casting a ballot in person to present a U.S. or Indiana photo ID. The facts were not in dispute. Those least likely to have state-issued identification were disproportionately poor and nonwhite. The only voter fraud addressed by photo IDs is voter impersonation fraud, which was practically nonexistent.

None of this mattered to the justices. John Paul Stevens, writing for the majority, insisted the burden of proof rested not on the state to justify new voting restrictions but on the citizenry to prove they created a burden. Moreover, the burden had to be extensive and widely shared. He elaborated, “Even assuming that the burden may not be justified as to a few voters, that conclusion is by no means sufficient to establish petitioners’ right to the relief they seek.”

The decision reversed a century-old dynamic in America during which the franchise had been regularly broadened and the ability to vote regularly facilitated.

Since 2010, 23 states have either introduced more restrictive voter procedures or tightened those in operation.

In 2013, the Supreme Court, by a 5-4 decision, further enabled disenfranchisement by striking down the heart of the Voting Rights Act of 1965, the provision that required pre-approval by the federal government of changes in election laws. This freed the nine covered states and dozens of counties in New York, California and South Dakota to change election laws without advance federal approval. They can still be sued, but only after the fact.

Five new voter suppression laws enacted by states were in place for the 2012 presidential election. Fifteen more laws will be tested for the first time in the 2016 elections. Seven of these enacted their laws after the Supreme Court eliminated the need for pre-clearance.


Since 2013, suits regarding these laws have been wending their way through the courts. Early this summer, courts halted the implementation of voter suppression laws in North Dakota and North Carolina.

North Carolina’s voting restrictions, introduced the day after the 2013 Supreme Court decision, added a strict photo-ID requirement, cut a week off of early voting, and ended same-day registration, preregistration and out-of-precinct voting. A Circuit Court upended the stricter voting requirements, concluding the law’s provisions “target African Americans with almost surgical precision,” and explained, “We can only conclude that the North Carolina General Assembly enacted the challenged provisions of the law with discriminatory intent.” On August 31, the Supreme Court, without Justice Scalia, affirmed the Circuit Court decision by a 4-4 tie vote.

The status of all these lawsuits, as of mid-August, can be found at ProPublica.

3. Voter Turnout

Voter dilution makes it extremely difficult, although not impossible, to capture congressional and state legislative seats. Voter suppression aids and abets the impact of voter dilution but also affects the capacity to win statewide elections for statewide offices, senators and the president. Both obstacles can be overcome, at considerable expense and effort, by increasing the number of people who vote.

When it comes to voter turnout, history is clear. When turnout is high, Democrats win. When turnout is low, Republicans win.

Voter turnout for presidential elections, according to the Census Bureau, has remained fairly stable over the last generation, while voting for congressional races has declined.


In 2014, low voter turnout among groups that tend to vote Democrat may have been decisive in expanding Republican control of Congress. Overall voter turnout was 36.3 percent, the lowest percentage since 1942, when millions of men were off to war. Voter turnout among 18-to-29-year-olds dropped to 19.9 percent, the lowest total ever recorded in federal elections, and voter registration among the youth fell to 46.7 percent, the lowest in 40 years.

Voting Turnout for Presidential Elections: 1964-2012


There has been a steady decline in voter turnout for all groups, except those age 65 and over. In presidential elections, turnout of those over 65 has actually gone up since the 1960s and has stabilized at high levels since the early 1990s. It is unlikely that turnout can be increased among this group, but there has been a considerable variability in which party they vote for. They had reliably voted Democrat but switched to the Republican column in 2012, and currently their vote appears up for grabs.


There has also been a dramatic variability in voter turnout for those 18-24 years of age. One might interpret the increase and decrease in turnout in the 1990s as youth voting enthusiastically for Bill Clinton and then becoming so disillusioned that turnout plunged in the succeeding two elections. A massive get-out-the-vote campaign focused on youth in 2004 may be the reason behind the rebound. In 2008, a substantial youth turnout was an important reason for Barack Obama’s election. In 2016, the level of turnout among young voters could determine the presidency.

Another way of breaking down voting patterns is to compare a cohort’s share of the eligible voting age population with its share of those actually voting. What we discover, perhaps not surprisingly, is that young voters lag, while those 45-64 punch high above their weight class, even more so than those 65 and older. Voting rates for those age 30-44 are only slightly below their percentage of the eligible voting population.


When we examine the impact of race and ethnicity on voting, we find that black turnout has risen steadily over the past 20 years, hitting a peak with Obama’s two presidential runs. Hispanic and Asian turnout, on the other hand, has not risen much and lags far behind that of blacks and non-Hispanic whites.

If we compare the share of the eligible voting population with the share of actual voters, non-Hispanic whites are disproportionately represented while Hispanics are disproportionately underrepresented.


4. How Many Races Truly Are in Play?

The presidency may well be won on turnout, and it is conceivable that a high turnout will allow the Democratic Party to take over the Senate, and more remotely, the House. But high turnout is a decreasing factor in many races.

In 1992, according to Nate Silver, 103 House races were competitive; in 2012 this had plunged to only 35. Meanwhile, the number of landslide districts in which the presidential vote margin deviated by at least 20 percentage points from the national result has roughly doubled, from 123 in 1992 to 242 in 2012.

In the 2016 race, 270towin.com estimates, only 50 House seats out of 483 are competitive: 38 are held by Republicans and 12 by Democrats. The map starkly reveals the paltry number of competitive seats. Given that Democrats will need to add 31 seats to gain a majority, their chances are extremely slim.

Where House Seats Are Winnable


For the Senate, 11 seats (tan states) are considered competitive. Democrats need four additional seats for a 50-50 tie that can be broken by the vice president or five for an outright majority.

Where Senate Seats Are Winnable


So what does all this tell us? The system indeed is rigged, but that doesn’t make elections impossible to win. The key, at least for Democrats, is to increase turnout. One part of that strategy is to overturn state laws that suppress turnout. For Democrats, winning the presidency and winning back the Senate will require a massive get-out-the-vote effort on behalf of their candidates, especially targeting the young and Hispanics. A massive effort would almost surely be insufficient to take back control of the House, but it could make the margin much, much closer. For Republicans, a low turnout guarantees the status quo in Congress and may well gain them the presidency.

David Morris is co-founder of the Institute for Local Self-Reliance and directs its initiative on The Public Good. He is the author of “New City States” and four other non-fiction books. Follow him on Twitter: @PublicMorris.

The Next President Will Likely Appoint 4 Supreme Court Justices: Which President Do You Want Picking Them?

The Next President Will Likely Appoint 4 Supreme Court Justices: Which President Do You Want Picking Them?

Published with permission from AlterNet.

This election is all about the Supreme Court that will shape our lives for the next 30 years.

Many progressives disagree with Hillary Clinton on a number of issues, in some cases intensely. But there is one overarching reason we should be vigorously supporting her election: The future of the Supreme Court is at stake.

We know the numbers. The death of Scalia split the Supreme Court between four conservative justices appointed by Republican presidents (Roberts, Alito, Thomas and Kennedy) and four liberal justices appointed by Democratic presidents (Ginsburg, Breyer, Kagan and Sotomayor). The Republican Senate, in an unprecedented stance, has refused to call a vote on President Obama’s nominee to replace Scalia.

During the next four years, the new president will likely nominate not only Scalia’s replacement but also an additional 3 new justices. Since 1971, the average age of retirement for a Supreme Court justice has been just under 79 years. Ginsburg is 83, Kennedy is 80, and Breyer will be 78 in mid-August.

The new justices will set the direction of the Supreme Court and the values that guide it for the next generation. Scalia, after all, was on the court for 30 years before he died. Thomas has been on the court for 25 years and is still only 68.

We know the numbers, but many don’t seem to truly grasp their central importance to our work. Indeed, only at 11:15pm on the first day of the Democratic Convention was the status of the Supreme Court briefly mentioned. Many of Bernie’s supporters appear willing to jettison the Court because of their distress over Hillary Clinton’s behavior or some of her policies.

The Supreme Court can enable or disable our work. In the last decade the justices have made it much harder to challenge wealth and power, to nurture the weak and assist the poor, to extend social justice to minorities, to reduce violence, stop discrimination, and defend the right to vote. One could write a book about the recent work of the Supreme Court but to make concrete the crucial impact of the court on a progressive future, here is a small sample of what the Court has wrought.

Democracy: The Supreme Court’s most infamous and widely discussed intervention occurred in 2010 when it overturned a corporate campaign spending ban first advanced by Teddy Roosevelt. The infamous Citizens United decision allowed corporations and unions to spend unlimited amounts of money, much of it “dark money,” hidden from public scrutiny.

Citizens United changed the nature of American democracy. In the first five years after the decision $1 billion poured into super PACs, $600 million of which came from just 195 donors and their spouses. Between 2006, before the Court decision, and 2014, after the decision, independent expenditures increased 25-fold.

In 2014 the Court allowed unlimited individual contributions. Both decisions were by a 5-4 vote. Dissenting Justice Breyer predicted, “If the court in Citizens United opened a door today’s decision may well open a floodgate.”

And so it has. In 2012 the Republican National Committee and its two Congressional campaign committees spent a total of $657 million. In early 2015 the Koch brothers announced that they and their friends would spend $889 million on the 2016 election. That is buying an awful lot of dirty tricks, non-profit front organizations, lawsuits, and dare I say, candidates.

There is much talk about the need to reverse Citizens United, but that can’t be done through Congress. Only a constitutional amendment or a Supreme Court reversal can. The chances of the former are infinitesimal. If Hillary Clinton wins the chances of the latter are quite good.

In 2008, the Supreme Court ended 150 years of laws and policies that steadily expanded the electorate when it upheld an Indiana law requiring a photo ID. The vote was 6-3 when Justice Breyer voted with the conservative majority. The justices conceded that those least likely to have state-issued identification are disproportionally poor and nonwhite. The state had offered no examples of voter fraud that would have been prevented with voter ID.

Since the Supreme Court decision, at least 23 states have either introduced more restrictive voter procedures or tightened those in operation.

In 2013 the Supreme Court upped the ante by allowing states to require proof of citizenship in order to register to vote. Earlier this year Kansas and Georgia and Arizona became the first to adopt that requirement.

In 2013, by a 5-4 vote the Supreme Court effectively struck down the heart of the Voting Rights Act of 1965 (VRA) freeing the nine covered states and dozens of counties in New York, California and South Dakota to change their election laws without advance federal approval.

Even when we are able to defend our democracy, our victories have been fragile. In 2015 the Court upheld the right of citizens to take authority over redistricting out of the legislature and invest it in an impartial commission. That same year the Court overturned an Alabama law that racially gerrymandered election districts. Both decisions were by a 5-4 vote, easily reversible by a new Court.

Corporate power. Several decisions by the Supreme Court have increased the power of corporations over workers and consumers.

In 2001 the Court interpreted a 1925 federal law allowing arbitration among businesses as a preemption of state laws protecting the right of workers to access the traditional judicial system. They did this despite the clear language of the original law: “nothing herein contained shall apply to contracts of employment of seamen, railroad employees or any other class of workers engaged in foreign or interstate commerce.”

In 2011 the Court overturned a California law prohibiting arbitration clauses that ban class action suits. Class action suits offer one of the few ways to truly penalize corporations for misbehavior yet today it is all but impossible to successfully litigate a class action suit. On the third anniversary of the Supreme Court decision Public Citizen identified 140 cases decided between 2011 and 2014 in which the judges cited the Supreme Court rulings as justification for dismissing a class action.

In 2013 the Court overturned a California law making arbitration contracts that contained “unconscionable” provisions unenforceable. Astonishingly, the Court concluded that even if the arbitration procedure is designed in such a way as to make it impossible for a worker or consumer to win, the results of arbitration are still legally enforceable.

The 2001, 2011 and 2013 decisions were all decided by a 5-4 vote.

Today employment and consumer contracts routinely contain forced arbitration clauses that prohibit access to the traditional justice system. Unlike that system, arbitration is governed by corporate-friendly rules. As Catholic University of America law professor Peter B. Rutledge notes, “Arbitrators do not have to follow precedent. Arbitrators also are not bound by the same rules of evidence and procedure as courts. Often there is no transcript, and arbitrators are not obligated to provide detailed findings of fact and conclusion of law in their awards.” Complainants can be forced to travel thousands of miles and put up thousands of dollars up front to attend an arbitration proceeding.

Another way the Supreme Court can expand corporate power is by weakening the ability of workers to wield collective power.

Scalia’s death earlier this year resulted in a series of 4-4 votes. One tie vote resulted in a victory for workers when it left intact the decision of the U.S. Court of Appeals for the 9th Circuit upholding a California law requiring non-union workers to pay their “fair share” of the collective bargaining costs. The decision affects eight northwestern and western states. If Scalia, or another likeminded justice were on the bench the resulting 5-4 decision overturning California’s law could have meant the demise of a nearly 40-year-old Supreme Court precedent that applies to more than 5 million public employees in 23 states and the District of Columbia.

Gun control. In 2007 and more broadly in 2010, the Court overturned 70 years of precedent when it declared that the Second Amendment applied to individuals, not militias. It was a watershed moment and made gun control infinitely more difficult. Since then, rather than gun control initiatives we have largely witnessed a race between states to see which can make guns most ubiquitous and conspicuous. The only remaining sacrosanct areas at this writing appear to be churches, courts and legislatures. The two Court decisions were by a vote of 5-4.

Immigration. In 2016 a 4-4 tie left in place a decision of the U.S. Court of Appeals for the 5th Circuit overturning a 2014 executive order that allowed as many as 5 million unauthorized immigrants who were the parents of citizens or of lawful permanent residents to apply for a program that would spare them from deportation and provide them with work permits.

A Woman’s Right to Choose. In 2014 the Court made it more difficult for poor women to prevent pregnancy when it held that privately held businesses could be exempt from the Obamacare requirement that insurance cover contraception based of the company’s religious beliefs. The vote was 5-4. Justice Ginsburg warned in her dissent of the potentially broad impact of the Court’s decision, given the attitude of religions toward women and gay people, “The Court’s expansive notion of corporate personhood invites for-profit entities to seek religious-base exemptions from regulations they deem offensive to their faiths.”

One of the Court’s final rulings this year overturned a Texas law that would have effectively ended access to legal abortion for millions of women. The vote in this case was 5-3 because Kennedy voted with the Court’s four liberal justices. Two new justices could reverse that decision.

Discrimination. In 2011 the Supreme Court dismissed a gender discrimination suit by thousands of women across the nation against Walmart. The Court threw out more than 40 years of class action jurisprudence by ruling that class members must prove they have suffered the same injury, not just a violation under the same law. The vote was 5-4.

In 2015, in a case involving discrimination against minorities in housing, the Supreme Court did uphold the traditional standard for deciding whether discrimination has occurred: Complainants must identify a business practice that has a disproportionate effect on certain groups of individuals while not being defensible by sound business considerations. The Court had been asked to substitute a much higher standard proof of “intentional discrimination.” The vote was 5-4.

Justice. In 2009 the Supreme Court ruled that prisoners have no constitutional right to DNA testing even though at the time such testing had already played a role in 240 exonerations, according to the Innocence Project at Cardozo Law School. In 103 of those cases, the testing also identified the actual perpetrator.

Health Care. A new liberal justice could make even our victories much sweeter. The American Care Act was upheld by the Supreme Court in 2012 by a 5-4 vote when Justice Roberts, surprisingly, voted in favor. But the Court rejected the Act’s Medicaid expansion mandate. Almost 8 million people lack health insurance as a result.

The Supreme Court meets only six months a year. The media dutifully reports the decisions, debates the meaning for a day or two and then moves on. We’re not exposed to the cumulative impact, nor the long-term consequences.

Supreme Court decisions reach into every aspect of our lives, both political and personal. The very structure of how we govern, our ability to elect progressive candidates and enact progressive policies is determined by their interpretation of the constitution and legal precedents. There have been activist Courts of all stripes but none, at least since the early 1930s has been as determinative of our ability to make a progressive future as this one.

In this election, removing the Supreme Court as a key obstacle in the way of achieving a fair and just future should be the goal that spurs our activism and our ballot choice.


David Morris directs The Public Good Initiative at the Institute for Local Self-Reliance.

Photo: The Supreme Court stands in Washington May 18, 2015.   REUTERS/Joshua Roberts