Brainstorming Possible Public Law Reforms

There are important gaps in our public law system:

* If we are to reject taxpayer standing, voter standing, and citizen standing, we need to empower someone to enforce violations of the law that harm the general public, but not any specific person differently from any other, like many forms of public corruption.

* Judges should have the power to remove government officials who defy court orders and commit serious breaches of the public trust from office, certainly, officials who are not elected officials.

* There needs to be a parallel to 42 U.S.C. § 1983 for federal officials and agents (i.e. people who act under color of federal law) that is more robust than the federal common law Bivens remedy, which doesn't cover all federal officials or all federal rights.

* The unitary executive theory adopted by the U.S. Supreme Court is just a pure political trick, with no historical basis. INS v. Chadha (1983), in which the U.S. Supreme Court held that legislative vetos in duly enacted laws were unconstitutional was also a bad decision.

* The gutting of the insurrection clause of the 14th Amendment by SCOTUS was a horrible legal decision not supported by any fair reading of the document.

* The grant of immunity from criminal prosecution for all official acts of the President was a very bad idea. Granting both civil immunity and criminal immunity should be a matter of common law or statutory law that can be changed by Congress, not a matter of constitutional law.

* Granting unfettered pardon power to the President now looks like it was a bad idea on the part of the Founders. Notably, a great many U.S. states do not afford the same power to their Governors.

* Requiring a two-thirds majority of both Houses of Congress to override a Presidential veto greatly upsets the proper balance of power between Congress and the President. Let the President veto legislation that unwittingly contains a bad provision which the President noticed but Congress did not. But let them reaffirm and override it by a simple majority of both houses. Part of the big picture problem in the United States is that it is far too hard to legislate, so the courts and regulations adopted by the executive have to fill the gap.

* Making the respective houses of Congress the judges of their own elections was a bad idea.

* The impeachment power is too weak and too political. And, it should be easier and less political to remove a President (or any other public official) for disability.

* A proposal is pending in Colorado to remove absolute immunity for prosecutors from civil liability, which as drafted I don't support, even though I can somewhat sympathize with the motivations for it. Judges also have absolute immunity. I think that the solution is to make a finding of professional or judicial misconduct or criminal conduct have the collateral consequence of forfeiting absolute immunity, with the statute of limitations for a private civil action to impose liability in those cases running from the time that there is a final criminal conviction or of professional or judicial misconduct. If a judge convicts you of a crime and sentences you to a private prison due to a bribe from a private prison investor, and the judge is convicted of that, the judge should have civil liability to you.

* An alternative to the fault based approach of § 1983 and Bivens for civil rights violations, would be to instead adopt the takings jurisprudence that applies when the government takes property without fair compensation. Rather than being perpetrator focused, if someone is deprived of their civil rights, they would be entitled to just, compensatory only, compensation, by the government under whose color the deprivation occurred, without regard to the intent of the person violating the right, and without individual liability on the part of the agents who participated in the deprivation of civil rights. Indemnification and defense mandates of public employees basically gets you to a similar place in most cases, but denies any relief when someone is deprived of life or liberty wrongfully, if no one individual intentional or almost intentionally violates their rights (e.g. if the injuries or destroyed property or other harm arose from mere negligence or mistakes, or due to broken systems rather than malicious individuals). Thus, if you were incarcerated and later found to be innocent, or incurred attorneys' fees defending a criminal case only to be acquitted, you would be entitled to compensation from the government that brought the charges and incarcerated you, without regard to how you were wrongfully convicted or were charged with a crime for which you were not convicted. Qualified immunity and intent requirements would be much less problematic if § 1983 lawsuits and Bivens actions were secondary remedies to punish individual bad apples (and included, for example disqualification from serving in law enforcement for serious willful wrongdoing), while municipal liability for compensatory relief only was available much more easily.

* Many countries vest prosecutorial power in the judiciary rather than in the executive branch, and many states have an attorney general or DA who is independently elected to create a built in special prosecutor. There is wisdom in depriving an elected executive branch politician like a President or Governor or Mayor from having absolute control over enforcement of the criminal laws.

* Colorado has the Colorado Open Records Act and the Colorado Criminal Justice Records Act to allow pre-litigation discovery of incidents that might give rise to civil liability on the part of public officials, which makes Warne v. Hall, which prevents people from suing first and getting discovery to determine if they really have a claim, by adopting the federal standards of Twombly and Iqbal for pleading civil actions more tolerable than in other contexts. It isn't clear to me that FOIA (the Freedom of Information Act) at the federal level, provides an equally effective tool to bring claims against federal public officials.

* While allowing all U.S. District Court judges to impose national injunctions can be problematic, mostly because it allows for forum shopping, it is also deeply problematic to allow the federal government to re-litigate issues that it has lost in other jurisdictions over and over again, which is just reverse forum shopping. Maybe national injunction power needs to be reserved for the U.S. District Court for the District of Columbia.

* Felons should be able to vote. But maybe they shouldn't be able to run for public office without some process establishing that they were reformed or just the passage of time of a certain number of years after they fully served their sentence.

* A statutory obligation for all law enforcement officers to be unmasked and clearly display their badges subject to narrow exceptions that would have to be authorized much like a search warrant on a case by case basis, wouldn't be a bad law.

* We need a better structure to limit the use of military force and covert operations by intelligence agencies to legally authorized act, that doesn't simply give the President absolute power.

* No President should have the power to unilaterally impose any taxes, including tariffs.

Moving Space Force HQ From Colorado To Alabama Is Stupid

Trump is about to renew his efforts to move the headquarters of the Space Force, a fifth military service that he created, from Colorado (where the headquarters of the part of the Air Force bureaucracy that was transferred to the separate Space Force service was located before he created the Space Force), to Alabama. He tried to do so during his first term, but the moved got bogged down in Department of Defense red tape, and the Department of Defense reversed that decision during the Biden Administration. 

UPDATE:

President Trump said one of the main considerations for moving Space Command out of Colorado Springs is because Colorado voters largely vote by mail. 

“I will say I want to thank Colorado,” Trump said. “The problem I have with Colorado… they do mail-in voting, they went to all mail-in voting, so they have automatically crooked elections." 

Trump has long criticized voting by mail, and has cited the practice as a major reason he lost the 2020 election to Biden though he has not provided evidence of fraud emanating from mail-in ballots." . . . 

The Denver Metro Chamber of Commerce estimates that Space Command supports nearly 1,400 jobs and has a $1 billion impact on the Colorado Springs economy. Colorado has a significant Space Force presence, hosting half the bases with its major operations, including Peterson as well as Schriever Space Force Base in the Colorado Springs area and Buckley Space Force Base in Aurora. Nationally, the branch has more than 14,000 military and civilian members, who are called Guardians. 

Colorado Attorney General Phil Weiser on Tuesday said his office was prepared to challenge in court Trump’s decision to move the command, though he did not elaborate the legal rationale for a lawsuit. . . . 

Huntsville, nicknamed Rocket City, has long been home to Redstone and NASA’s Marshall Space Flight Center. The Army’s Space and Missile Defense Command is also located in Huntsville, which drew its nickname because of its role in building the first rockets for the U.S. space program.

This is almost certainly not a legitimate reason for executive branch action under the Administrative Procedure Act. It is also an outrageously false claim.

Colorado Pols has more details.

END UPDATE

This is very on brand for Trump. He is making a call that places partisan politics above what is best for national security and wastes federal dollars.

Alabama is less attractive than Colorado to the civilian employees and contractors (who have a choice unlike active duty service members), so it won't attract the same quality work force. And, if one was going to move it away from Colorado one could have justified an HQ in Florida or Texas, which are also GOP strongholds, but like Colorado and Washington State, actually have a space industry (but see the material in the update above about Huntsville). Charitably, the best that can be said for it is that it provides economic development assistance to an underdeveloped part of the U.S.A. that supports him politically. Less charitably, it can be seen as a political payoff to Senator Tommy Tuberville who was getting in the way of Trump's Defense Department agenda. Less charitably still, it is a way for Trump to try to take action solely attributable to him that will become part of a military service's legacy once the bad decisions that went into that choice are long forgotten.

Tearing down old infrastructure to move it somewhere else is also just wasteful, while providing no benefits to national security. It is will probably require a billion or so dollars of unnecessary defense spending.

Of course, creating the "Space Force" was a bone headed idea in the first place. It undermines interservice cooperation, and honestly, it would have been better to be truly conservative and roll the Air Force back into the Army, rather than further dividing the Air Force. There might be a time when a Space Force makes sense, but that time is far in future.

Space Force's military role remains ill-defined and it remains a work in progress that is currently creating more confusion rather than a stronger U.S. military. Do we really need a new Space Force academy? Do we really need Space Force reserves? How is it doing anything that the Air Force did better? How many people are even in the Space Force? According to Google AI it apparently has 9,400 active duty "guardians" and about 4,600 civilians, making it far smaller than even the Coast Guard.

Trump's other wasteful symbolic military acts

Trump's other symbolic military initiatives are similarly dubious. His military birthday parade in the District of Columbia on June 14, that the Army aptly converted to a boring historical display from the third-world dictatorship show of force that he wanted in an act of malicious compliance, it was a wasteful and expensive flop.

The idea he has floated to change the name of the Department of Defense to the Department of War (as it was called during and before World War II), were also wastes of money, but at least are basically harmless. Indeed, the calling it the Department of War is also more honest.

Trump's intent to reassign Confederate names to U.S. military bases is fundamentally endorsing treason and insurrection and is patently un-American.

Trump's inappropriate domestic uses of the military

Trump's deployment of military force, mostly but not entirely, national guard troops, on the other hand, in addition to being a waste of money, are grossly improper, manufactured crises that threaten democracy, undermine federalism, are inappropriate for immigration enforcement, and are illegal.

The Courts rejected his efforts to criminalize illegal immigration by calling a large swath of the border a military base, and have rejected his characterization of illegal immigration as an "invasion" of the United States for constitutional purposes. Courts have also held that deportation flights he had the military make in violation of court orders were illegal.

Courts have shut down his military deployments to Los Angeles. As the New York Times explains:

A federal judge in California said President Trump broke the law by deploying roughly 5,000 Marines and National Guard troops to Los Angeles in June in response to immigration protests. The judge said on Tuesday that Mr. Trump, Defense Secretary Pete Hegseth and the Defense Department had violated the Posse Comitatus Act, which generally prohibits using the military to enforce domestic law. The judge barred them from using the troops for any law-enforcement purpose, but put the order on hold for 10 days. The administration is expected to appeal. . . . 

The ruling was the latest in a series of judicial battles over claims of expansive unilateral powers by the administration. Mr. Trump and administration officials have deported people without due process, imposed widespread and unpopular tariffs and rolled back energy regulations, citing wartime and emergency powers that have been disputed in federal court. 

The president also declared crime in Washington, D.C., to be an emergency in order to send federal troops there in August, although crime rates in the nation’s capital have actually been falling and local officials said the deployment was not needed. Since then, Mr. Trump has publicly mused about sending the National Guard into other Democratic-led cities. Federal law gives the White House more latitude to conduct local law enforcement in the District of Columbia than in the states. . . .

The ruling places strict limits on the what the troops can do and applies only in California, although the judge noted that Mr. Trump and Mr. Hegseth “have stated their intention” to use Guard troops as a “national police force with the president as its chief.” Gov. Gavin Newsom of California praised the decision, saying Mr. Trump’s efforts were “illegal, authoritarian, and must be stopped in every courtroom across this country.”

Other bad defense department decisions.

These aren't the only bad defense department decisions he's made. He's banned books at the military academies (eventually rescinding all but a few of those bans). 

He wiped all mention of women and minorities who contributed to the U.S. military on government websites (another decision he has mostly backed down from in the face of court action and bad P.R.). 

He's systemically fired or removed from command women and minorities whom he has called "DEI hires" while putting in place less qualified individuals chosen for political loyalty. 

He's baselessly fired transgender troops contrary to their civil rights and denied them their legitimate benefits for being laid off and having served with distinction.

He's purged the ranks of generals and admirals and national intelligence officials to replace them with political loyalists. Trump's major appointments in the defense and national intelligence sectors have involved woefully unqualified people who have made major public blunders.

His openly revenge oriented revocations of security clearances and security details for various officials has been disgraceful.

The mixed bag of Trump's military deployments and threats abroad.

Trump's deployment of U.S. forces have been a mixed bag at best.

Trump wasn't wrong to continue Biden's policy of militarily engaging the Iranian backed Houthi rebels in Yemen who have been using advanced anti-ship missiles from Iran to interrupt maritime commerce in acts of piracy that they claim are in support of Gaza but really have nothing to do with it. But then, he just lost interest and ended U.S. involvement.

Trump wasn't wrong to provide some extra military support to Israel's raids on Iran to thwart its nuclear capabilities, although the B-2 bomber strikes he made were less effective than might have been hoped. And, of course, this is a problem of his own making created when he pulled the U.S. out of President Obama's deal with Iran to end its nuclear weapons program.

Trump, in his first term, set up Biden for failure, and the Afghan government installed by the U.S. and its allies for collapse, by negotiating with the Taliban for a U.S. withdrawal that left the Afghan government out of the loop and left Biden holding the bag when he took office, just a month or so before the scheduled pull out date. And, in his second term, Trump has broken faith with Afghan citizens who served U.S. forces in Afghanistan at great risk to their own lives by trying to revoke the immigration protections that the Biden Administration and his own administration in his first term provided to them.

Trump has been indecisive, has wrecked our alliances, has taken absurd and counterfactual positions, and has played into Russia's hand with respect to the Ukraine War, even though with immense bipartisan political pressure from Congress and from the Defense Department, he hasn't entirely abandoned it.

Trump's utter abandonment of Africa, ending U.S. Aid in a way that has killed hundreds of thousands of people and will kill millions, planning to close all U.S. embassies there, and imposing tariffs upon it, has basically ceded the entire continent to China.

Trump has been less firm than he might have been in the Philippines-China clashes in the South China Sea caused by Chinese Coast Guard harassment of Filipino military and civilian shipping in places that international law has declared to be international waters.

Trump's response to the situation in Israel with Gaza has ranged from rudderless to absurd with his call to vacate Gaza and turn it into a Trump owned beach resort. By floating the proposal without even consulting his advisors, he has undermined U.S. credibility on the issue.

Trump's deployment of naval forces towards Venezuela seems to be an attempt to manufacture a war. His early threats to invade Greenland and Panama and Mexico, contrary to the sovereignty of a NATO member, to treaty obligations, and to international law, and to annex Canada, have likewise been toddler level moves that have undermined U.S. credibility in foreign affairs and turned us into a global menace.

The mixed bag of Trump's procurement decisions

Trump's military procurement decisions have also been a mixed bag.

The cancelation of the M10 Booker light tank (that the Army refused to call a tank) was a good move. Cancelling the Joint Light Tactical Vehicle for the Army (one of the best procurement decisions that the Army and Marine Corps have made for ages), while keeping the Army's buy of the obviously bad Infantry Squad Vehicle that ignores all of the lessons the Army learned in Iraq and Afghanistan was a very bad move.

Cancelling the Army's successor to the M113 was mostly a good move, but leaves the Army without a next generation medical transport and field hospital vehicle, even though other parts of that buy were unwise. Progress on an Osprey-like tilt wing successor to the Blackhawk helicopter in the Army is positive. Upgrading Army small arms makes sense.

The decision to boost purchases of the B-21 Raider and the F-47 Air Force fighter (to replace the F-35A) aren't horrible decisions, nor is the decision to continue the Collaborative Combat Aircraft (a.k.a. Loyal Wingman drone) program. Looking at ways to use cargo aircraft as bombers or missile launching platforms also makes sense. This administration's continued failure to recognize the need to have a close air support aircraft (shared with past administrations), however, even if the A-10 is just too old, wasn't wise. Trump's absurd attempt to play aerospace engineer and claim that the F-47 really needs twin engines, however, is more toddler level governance.

A focus on improving U.S. air defenses in a program known as the Golden Dome (playing on Israel's Iron Dome), on ramping up U.S. drone production, and on rushing to get drone defense resources fielded aren't wrong. Developing hypersonic missiles also makes sense. 

Developing new anti-ship tactical nuclear missiles, however, is a bad call and doesn't meet a real military need since existing anti-ship missiles are more than adequate to sink any ship in existence.

The decision to fund development of Elon Musk's SpaceX Rocket Cargo program which is technologically challenging, doesn't have a proven track record of quality control, and doesn't meet an urgent need, is less wise. This contract is just political payback.

It is honestly still hard to tell, more than seven months into the administration, what it's naval policy is. The Navy is appropriately looking at a major increase in unmanned ships and submarines, and at containerized anti-ship missiles for ships that wouldn't ordinarily have any missiles. Is the successor to the F-35C on or off? Is the Constellation class frigate on or off? Where is the Littoral Combat Ship program? Do we really need more old model Arleigh Burke destroyers? Does spending big bucks on maintaining a large scale amphibious attack capability really make sense?

Trump has talked big about using the U.S. military against cartels in Latin America, but the Department of Defense has apparently done nothing to prepare for this historically law enforcement and Coast Guard mission.

A Non-Constitutional Revolution

The Founders in their ignorance, made the U.S. Constitution extremely hard to amend. This post is a quick recap of some of the more transformative way our constitutional and political order could be remade without constitutional amendments.

Disposition Of U.S. Territory Outside U.S. States

* Admit the District of Columbia, which has a population of roughly 679,000, as a U.S. state (once this was done, repealing the 23rd amendment to the U.S. Constitution that gives the District of Columbia three electoral votes would be easily passed).

* Require Puerto Rico, which has a population of roughly 3.2 million, to choose between independence and becoming a U.S. state. Deprived of an option to continue its current Commonwealth status, it would choose statehood.

* Grant statehood to the U.S. Virgin Islands, which has a population of approximately 104,000.

* Return the Guantanamo Naval Base to Cuba.

* Admit Guam and the Northern Mariana Island as a single new U.S. state (they are basically contiguous) with a population of approximately 221,000.

* Transfer American Samoa with a population of 44,000 to the adjacent sovereign country of Samoa, if it will accept it. Anyone dissatisfied with this could migrate to the United States and retain their citizenship.

* Collectively, this would mean that there would be 108 seats in the U.S. Senate (excluding the U.S. Vice-President's role as a tie breaker) and that there are no permanently inhabited U.S. territories that are not within U.S. states.

Congress

* Expand the U.S. House from 435 seats plus six non-voting delegates to a fixed 991 seats with no non-voting delegates. This would mean that there would be roughly 340,000 people per average seat in the U.S. House of Representatives (compared to a current average of about 790,000 people per seat), so only the Virgin Islands would have more house seats than the number it would be entitled to without a minimum of one seat per state rule, and even then, only by about a factor of three less than the average. This would also increase the size of the Electoral College to 999 electors (with the four new U.S. states), would greatly reducing the risk of a tie vote in the Electoral College (since it is an odd number), and would roughly cut in half the benefit that small states have relative to large states in the Electoral College. The number of U.S. House seats would not be changed if a state were allowed to split into more than one state or was merged with another state.

* Enact a statute requiring U.S. states with more than one seat in the U.S. House of Representatives to elect those seats in a party list proportional representation system (with each party's list determined in primary elections held in advance of the election). States with 50 seats or more would be required divide themselves into two or more regions with a number of seats proportional to the region's population of at least 20 seats and not more than 50 seats each. Currently, those states would be California (98 seats) with 2 to 4 regions, Texas (90 seats) with 2 to 4 regions, Florida (67 seats) with 2 to 3 regions, and New York (57 seats) with 2 regions. Smaller population states would be "at large". This would end gerrymandering of all kinds and would make the federal government a multi-party democracy. Doing this for Congressional delegations on a state by state level rather than nationally, would eliminate the need for a constitutional amendment, would de facto create a minimum threshold that would be much higher than it would be in a national proportional representation election, and would keep the states in charge of election administration.

* Enact a statute requiring candidates for U.S. House in states with just one representative (probably only the Virgin Islands and Guam), and for U.S. Senate, to win a majority of the vote to be elected in a general election and to hold a runoff election of the two two candidates if no candidate receives a majority of the vote in the first round. This would largely end spoiler effects as the shift in the House to what would become a multi-party system would increase the likelihood non-majority first round results.

* End the filibuster and Senatorial holds in the U.S. Senate.

Presidential Elections and Disability

* Require states to allocate their electoral votes proportionately to each candidate's popular vote, rather than by a winner take all method for a whole state, or by Congressional district.

* Pass a law implementing Section 4 of the 25th Amendment to the United States Constitution (concerning Presidential disability), to create a Presidential disability commission in connection with the language giving "the Vice President and a majority of either the principal officers or the executive departments or of such other body as Congress may be law provide" the authority to determine that the President is "unable to discharge the powers and duties of his office" and to keep that determination in force pending a Congressional determination of the question if the President disputes it. This commission might be made up the active judges, collectively, of the U.S. Court of Appeals for the District of Columbia and would have subpoena power in connection with carrying out its duties in this capacity, and would act on the Petition of the Vice President delivered under seal to the clerk of that court.

Qualifications For Public Office

* Enact a law implementing the insurgency disqualification from office in the 14th Amendment (or on any other ground) allowing any court or tribunal with jurisdiction over election administration to determine this by a preponderance of the evidence in a civil action, and allowing states courts and U.S. District Courts from a state where the official was elected to determine this after an election or appointment. For the President and Vice President, the U.S. District Court for the District of Columbia would have exclusive jurisdiction after they were elected (and even before they were sworn in). For federal appointed officials, the U.S. District Court with jurisdiction over the place where the official's primary office address is located would have exclusive jurisdiction. For state and local appointed officials, the state courts of general jurisdiction and U.S. District Courts with jurisdiction over the place where the official's primary office address is located would have exclusive jurisdiction.

Election Administration 

* Restore the protections of the Voting Rights Act expanding the protections historically applied only in places with a history of discrimination to the entire country.

* Create a right to have a state ID issued free of charge at some government office within their county at least every five years, with replacement costs limited to the actual direct cost of preparing a new ID between times. Automatically register anyone who is a citizens with a state ID or driver's license to vote. 

* Allow citizenship for voting purpose to be proven by means including any record of a previous voter registration, a passport, an expired passport, a birth certificate, a naturalization document, a tribal membership, a Social Security number, a marriage certificate to a U.S. citizen, or an affidavit establishing facts necessary to prove U.S. citizenship.

* Establish a right to an absentee ballot without proof of need for any registered voter, if a mail-in ballot is not otherwise made available to them.

* Encourage states to reduce the voting age in federal elections to sixteen years old.

* Classify people who are incarcerated as residents of their domicile immediately prior to their incarceration for purposes of state and local redistricting and for census purposes.

* Allow U.S. citizens who have no previous domicile in any U.S. state as residents of the U.S. state of their choice for purposes of federal elections.

* Prohibit election administration by elected officials (partisan or not), and also by partisan political appointees for whom one party controls the highest governing body of the election administration agency.

Courts

* Pack the court. Add another seven justices to the U.S. Supreme Court to end the distortions arising from having a 6-3 ultraconservative and hyper-conservative majority there. This should be done before any of the rest of this agenda is enacted.

* Establish criminal penalties that include disqualification from office for ethics violations by U.S. Supreme Court judges and other judges, with special venue provisions.

* Repeal the general federal diversity jurisdiction statute. 28 U.S.C. § 1332. As a result, federal court diversity jurisdiction would be allowed only in very specialized cases like class actions and cases where the parties claim ownership of land under the laws of two different states.

* Repeal the general federal question statute. 28 U.S.C. § 1331. This would end federal court jurisdiction over most lawsuits arising under federal law between private parties outside some very specific circumstances such as civil rights, election laws, intellectual property, and bankruptcy cases. The biggest impact of this would be to limit employment discrimination lawsuits to state court.

* Abolish the federal Article I immigration courts and give the U.S. District Courts exclusive jurisdiction over all immigration cases.

* Create a specialized national U.S. District Court for Indian Country which would have jurisdictions from multiple venues in cases where the U.S. District Courts currently have jurisdiction (i.e. felonies committed in Indian territory) and over other civil matters of Indian law, from which appeals would be taken to the U.S. Court of Appeals for the Federal Circuit.

* Statutorily end qualified immunity to lawsuits filed under 42 U.S.C. § 1983.

* End a law parallel to 42 U.S.C. § 1983 for violations of civil rights under color of federal law, thus codifying and expanding the scope of Bivens actions.

* Establish vicarious liability for the employers of government officials or contractors held liable under 42 U.S.C. § 1983 or its new federal counterpart.

* Enact a federal law entitling someone to relief in the form of compensatory money damages, injunctive relief, and declaratory relief from governmental entities that deprive someone of a constitutional or federal statutory right, even in the absence of fault or an intent to do so, including any deprivation of liberty arising from pre-conviction or post-conviction incarceration from someone who was wrongfully convicted, either due to procedural violations giving rise to the conviction or due to their innocence of the charges giving rise to their conviction.

* Enact a law creating a private right of action to seek injunctive relief enforcing the Posse Comitatus Act (which prohibits the use of the federal military to enforce laws domestically) in the appropriate U.S. District Court, to any person impacted by it or to any governmental entity within whose territory military personnel are used for this purpose, with expedited proceedings.

* Prohibit the activation and deployment of national guard troops in a state without the permission of its Governor, absent a notice to the Governor that troops will be deployed at least twenty-four hours in advance and a showing that law and order have collapsed to a point where civilian efforts are insufficient, or that an insurgency is in progress, or that the state is defying federal court orders. If a Governor contests this within twenty-four hours in the relevant U.S. District Court, this activation and deployment shall be stayed until an expedited hearing on the merits can be held to determine if the President has the authority to do so.

* Give U.S. District Court judges broad statutory authority to impose national injunctions against the U.S. federal government.

* Establish a judicial process required to claim the state secrets doctrine in an adversarial proceeding with a specially qualified bar of people having national security clearance at the time of their admission.

* Require an adversarial proceeding affording a personal with national security clearance with due process to revoke a national security clearance for more than five weeks (if this is not done, the temporary revocation would automatically expire).

* A U.S. District Court should be granted the authority to place any federal government agency whose senior officer has defied a court order to place that agency under court receivership, and to remove that government official from office, until a replacement who acknowledges the authority of the court and personally commits to obey that court order can be appointed. 

* Prohibit "bounty" laws that allow someone who would otherwise have no standing to bring a civil action to sue someone for a fine that enforces a state law (which are designed to circumvent judicial review of such laws).

Immigration Laws

* Immediately and automatically grant U.S. citizenship to all legal permanent residents of the U.S. (i.e. green card holders) and to all U.S. nationals who are not U.S. citizens. Allow anyone qualified to get a green card now to immediately get U.S. citizenship.

* Immediately and automatically grant U.S. citizenship to the spouse of any U.S. citizen.

* Grant automatic U.S. citizenship to any member of any recognized Native American tribe, regardless of place of birth, in accordance with the membership rules of the tribe.

* Grant citizenship at birth to a child anyone who is a U.S. citizen, or is serving in the U.S. military at the time of conception or birth. Proof of paternity may be established from the DNA records of the U.S. military kept for people serving in the U.S. military for post-humous identification purposes without the consent of the service member alleged to be a parent (or from a comparison to the DNA of all U.S. service members if the identity of the service member is not known).

* Establish a ten year statute of limitations from first entry into the U.S. (even if interrupted by period abroad of less than one year at a time) on deportations, and allow anyone for whom the statute of limitations has passed to apply for U.S. citizenship on that basis without any civics and English language test.

* Make a passport available free of charge a first time and every time it expires to every U.S. citizen.

* Eliminate authority to denaturalize someone for fraud in the immigration process for any reason, and replace that with criminal penalties for doing so that do not deprive someone of their U.S. citizenship.

* Allow a visa to be revoked after clearing an immigration checkpoint upon entry to the U.S. only with a civil action filed by the United States government in a U.S. District Court at which a valid legal basis to do so, that is not unduly vague and does not violate constitutional rights such as the right to free speech, is established by a preponderance of the evidence.

* Allow someone with a valid visa who is denied entry to the U.S. at an immigration checkpoint to obtain an award of money damages and injunctive relief if the denial of entry is without probable cause to do so, and to obtain injunctive relief reinstating the visa with no right of immigration officials to deny entry if entry is denied with probable cause but the articulated probable cause concern is later overcome. A person with a valid visa who is denied entry could elect to litigate the matter either from a temporary detention center near the place of entry, or from a U.S. embassy in another country such as the country from which they arrived.

* Prohibit deportation of someone, even when valid grounds exist to deport them, to a country where the person is not a national without their consent.

* Establish by statute (regardless of any constitutionally permissible alternatives) that probable cause that someone is deportable is requires to detain someone for immigration violations and that no one may be deported for any reason without notice and a hearing in an Article III court.

* State and local elected officials with immigration detention facilities located in their government's territory, and members of Congress from any state, shall have the right to enter and inspect an immigration detention facility and record by any meaning the people there, what the detainees have to say, and the conditions of the facility, and to demand responses from any person employed there to their questions about the facility, the authority for operating the facility, and the status of the people in the facility.

* The location and status of everyone detained for immigration purposes shall be available to the public.

* Immigration officials and any other private or public person working with them or on their behalf on on their authority shall have a duty to immediately release anyone detained for immigration purposes who presents to them proof that they are U.S. citizens or have a valid visa that has not been revoked by a court. 

Health Care

* Expand Medicare to everyone (without requiring any proof of eligibility), financing it with an increased Medicare payroll tax rate and an Obamacare tax on investment income at the same rate as for self-employed persons. Failure to make a required copayment would not be a basis for denying care but would give rise to an unsecured debt that could be discharged in bankruptcy. Convert VA Hospitals to non-profit independent hospitals financed with Medicare. Repeal Medicaid. End private for profit insurance Medicare providers. Reduce all employee health benefits to Medicare supplemental plans. Require Medicare supplemental plan providers to use standardized claim forms with providers and insureds to simplify provider paperwork.

* End lawsuits seeking to recover the costs of medical care paid for by Medicare brought by any party but the Medicare subrogation division in each state, which could bring subrogation lawsuits in state court to recover medical costs caused by tortious conduct when it determined that it was cost effective to do so.

* Expand Medicare to include long term nursing home care with a deductible not to exceed the median rent in the metropolitan area (or outside of metropolitan areas, in the rural area of that state), which can be paid with a federally guaranteed loan at the one year U.S. Treasury bond interest rate with no payments due until death, secured by a junior mortgage on the patient's personal residence, if any, if the patient is unable to pay.

Labor Laws

* Increase the federal minimum wage to $16 per hour ($32,000 per year for a full-time employee which is roughly the federal poverty line outside Alaska and Hawaii), index it to the consumer price index, and extend it to independent contractors who are providing personal services.

* The Family and Medical Leave Act of 1993 (FMLA) entitles eligible employees to twelve workweeks of leave in a 12-month period for the birth of a child and to care for the newborn child within one year of birth, the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement,  to care for the employee’s spouse, child, or parent who has a serious health condition (a serious health condition that makes the employee unable to perform the essential functions of his or her job), any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or twenty-six work weeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin (military caregiver leave). Extend FMLA coverage to include being seven months pregnant or more. Expend the duration to up to eight months in a two year period. Create a federal grant equivalent to full-time minimum wage to anyone taking time off under the FMLA.

* Mandate a prorated 80 hours per year of paid time off for employees working 2,000 hours per year (i.e. 1 hour per 25 hours worked).

Controlled Substances

* End the status of marijuana as a federally controlled substance.

Reproductive Rights

* Statutorily clarify that states may not prohibit someone from prescribing and mailing abortion or contraception drugs across state lines or from crossing state lines to obtain an abortion drug or contraception drug obtained from out of state.

* Clarify that federal government health care facilities (e.g. prison medical centers, military hospitals, historically veteran's hospitals) can provide abortions and other reproductive health care notwithstanding state or local law.

* Clarify that the Emergency Medical Treatment Act requires states to allow abortions as part of a medical emergency, pre-empting state law. 

A Shorter Ballot Would Be Better

There is a new controversy in the news regarding the CU Board of Regents. I'm not going to discuss it because I haven't investigated it enough to provide an intelligent opinion on it, and I'm not bothered to do so.

What I will say, is that voters in the State of Colorado vote on way too many things, about which voters are ill-equipped to provide intelligent input.

Easy Ways To Shorten The Ballot

We should not have an elected CU Board of Regents. We should not have an elected state school board. The C.U. Regents could be either appointed in the same manner as the governing body of the Colorado State University system, or partially in that manner and partially by University of Colorado alumni. The state school board should be appointed by the Governor with terms staggered so that a single Governor could only appoint a majority of the board after two full four year terms, so maybe one seat would be open every two years and there would be seven seats.

These boards shouldn't be inherently partisan and voters in the general public are simply ill-equipped to evaluate how well those board members are doing their jobs and how qualified the candidates for those positions are. 

We should not elect a state treasurer. We should not have elected county surveyors, county engineers, county treasurers, county assessors, or county coroners,  As an aside, the work done by coroners should be handled at the state or judicial district level, rather than the county level, because small counties don't have the resources to do that important job right. 

These are technocratic, non-partisan jobs that should be filled by civil servants selected on a non-partisan basis.

We should not have judicial retention elections (at least without some rare circumstance flagging a seat for needed one). And, as an aside, we should entirely abolish municipal courts.

While the way that we appoint judges is Colorado is very good, the retention elections product a 99% retention rate, and even with a government sponsored information packet, voters are simply not qualified to determine if judges are doing their jobs well enough to be retained. Routine retention decisions should be made be a body more qualified to evaluate the issues, such as by judges who have direct supervisory appellate authority over them, and a strengthened judicial discipline system. It would make sense to have recall elections on a basis comparable to that of recall elections for elected public officials, when a large group of citizens petitions for the recall of a particular judge, but they should not be held as a matter of course. Retention elections are the single greatest factor that makes Colorado ballots too long, and add very little value.

Municipal courts are problematic in multiple ways. They aren't appointed in the meritocratic way that state court judges are appointed. They are independent of the municipal government and can be removed promptly if the municipality appointing them is dissatisfied with their rulings even if those rulings are right on the merits of the law. And, there is a well demonstrated track record of abusive and irregular judicial decisions by municipal judges. Municipal courts not of record are particularly lawless. 

We should not elect a state secretary of state, county clerks, county election officials, or local government clerks. In part, this is because we should not have partisan elected officials conducting election administration as the state's Secretary of State and county clerks do. In part, this is because non-partisan technocratic tasks shouldn't be done by elected officials.

We should eliminate the post of Lieutenant Governor, eliminating this additional impotent and rarely relevant post from serving as static in the Governor's race, and instead have a order of succession in which other members of the Governor's cabinet, perhaps the attorney general (whether elected or appointed), and then other members of the cabinet, serve if the Governor cannot.

At the state level, this would leave the Governor, the state attorney general, and state legislators on the ballot. There would also be an elected district attorney in each state judicial district (most of which are multi-county).

At that county level outside of Denver and Broomfield which are consolidated cities and counties, this would leave only county commissioners and a county sheriff as partisan elected officials. Personally, I'd prefer that the number of county commissioners be increases from three to five in larger counties and perhaps even seven in the largest counties, with a politically appointed sheriff, rather than an elected sheriff, mostly because this would make it easier to remove a sheriff who was clearly behaving badly. But this is a closer call, because the county sheriff makes policy decisions and is not merely a technocratic civil servant, and because the county sheriff's performance is easier for the average voter to judge.

At the local level, this would leave a local council, a mayor in some larger cities, and in Denver, a city auditor.

Removing all of these partisan races from the ballot would also, indirectly, reduce the burden on voters by reducing the number of races for which nominees would have to be chosen in the state's caucus plus primary election system.

Regional Transportation District directorships are a necessary evil to some extent. This is a body that makes political decisions on how to run RTD that don't neatly correspond to partisan categories, with taxes it raises on its own, which voters should have a direct say upon the spending of, but doesn't neatly correspond to any other political subdivision with general purpose elected officials, since it involves multiple counties (some partial and some full). Making the directorship elections non-partisan is also a good choice. But, we would be better served if the RTD director elections were held all at once for four year terms, rather than being staggered, so that the press and the public could collectively think about RTD politics all at once, rather than piecemeal in a way that dilutes attention from the races. Perhaps this would make the most sense in the year following a Presidential election, so that these elections wouldn't have to compete for attention with partisan local, state, and federal political contests.

I actually support the TABOR requirement to have citizens vote on tax increases, which insulates candidates running for public office from opposition out of fear that the candidates would raise taxes. But, we should not have TABOR elections to determine if increased revenues, from taxes that have already been approved by voters, should be retained - the state should be "de-Bruced" across the board.  

We should not have ballot issues to approve renewals of already approved public debt levels that involve no new taxes and no increases in the nominal amount of outstanding voter approved government debt. I favor ballot issues to approve increases in taxes to pay for government bonds, or increases in the amount of debt incurred that will necessarily have to be paid for with taxes at some point. But, voters shouldn't be required to routinely reapprove existing taxes and already approved debt levels.

Lots of provisions of the state constitution, and of county and city charters, which require voter approval to change, should be in state statutes or local ordinances that can be changed by elected legislators.

For example, details like the organizational chart of the City and County government and election deadlines, both of which are found in the City and County of Denver's charter and have been the subject of recent ballot issues, shouldn't be in the city charter.

Those are the easy ways to shorten the ballot. 

Extra Credit 

There are also other ways that it could be shortened that are closer calls.

We should end the use of property taxes to fund public schools and should replace those with state legislature approved spending from revenues from state income tax dollars. I've explored why this is a good idea in other posts at this blog. If this was done, it would also make sense to have local school boards elected by the parents of public school students, on a one student, one vote basis, rather than by members of the general public.

The state legislature should have the state senate elected by a party list proportional representation system. A bicameral body in which both houses are elected on the same single member district plurality system adds little value, compared to the burden it adds to voters researching who to voter for in state legislature elections. Proportional representation in the state senate would provide a structural check against gerrymandering, would facilitate a multiparty system that isn't entirely beholden to the internal baggage of the two major political parties, and would allow diffuse minority political views to receive a voice. State senators could continue to serve four year terms with roughly half of its 35 members elected every two years, but the entire state would cast their ballot every two years. The limited number of seats: 17 or 18 in each state general election, would also impose a de facto minimum level of support of 5.5%-5.8% to be elected, denying truly fringe parties a vote. And, it doesn't take much effort for a voter to decide which of half a dozen or so political parties they support. Party lists could be drawn up through each political party's internal caucus system.

One could also make the state attorney general appointive, and/or could have district attorneys appointed by the state attorney general. There are pros and cons to this approach. An elected attorney general eliminates the need for independent counsel to investigate the executive branch and would provide a better mandate to serving as a Lieutenant Governor ex officio and to appoint district level attorneys general. But, similar arguments to RTD and county sheriffs apply to elected district attorneys and would make it harder for a single partisan elected official to decide criminal justice priorities for an entire state with diverse views on that issue.

The Case For Having Political Parties Take Direct Action

I am a minor Democratic party official, a "precinct organizer" in my neighborhood. I've previously served as the county treasurer of the Democratic Party of Denver. I've waded my way through almost all parts of the Democratic party organization, attending multiple state conventions and assemblies and county party reorganizations. I've also seen the legislative process up close, as an intern in Congress in college, and as a law partner of a state legislator in a two partner law firm.

U.S. political parties are, by design, weak and historically haven't been trusted. The U.S. has one of the most candidate centered political systems in the world and pushes political parties to the side as much as possible, despite their central role in the legislative process and as organizing forces in the electoral process.

U.S. political parties have only limited control over who runs under their banner in elections. Political parties have some money that they can use to support their candidates in elections, but the U.S. campaign finance system heavily favors funding individual candidates and ballot issues, in particular elections, over campaign finance mediated by political parties. Political party platforms aren't worth the paper that they are printed upon and are almost completely disregarded by the officials holding elective office whom that political party helped to get elected. 

In many municipal elections, all candidates are non-partisan and political parties are removed from the process entirely.

Colorado's political parties are stronger than average. They play an outsized role in nominating candidates for elected office through the caucus-county and district assembly-state convention process. And,  most vacancies in state elected officers are filled by vacancy committees made up of political party officials. But, Colorado political parties still usually raise only barely enough money for their bare minimum operating expense requirements and contribute little money to getting their party's candidates elected.

Also, in Colorado, like both major political parties in almost every U.S. state, political parties engage almost entirely in a single activity - participating in electoral politics by trying to nominate good candidates with the right political agendas, and by trying to get out the vote for those candidates come election time.

This is important work. And, because it is important work, a county like Denver, with about 250,000 voters who are registered to vote as Democrats, manages to convince several hundred voters who are registered to vote as Democrats to do what it takes to get the job of trying to elect Democrats to elected office done at the grass roots.

But, like most non-legislative wings of major political parties in the U.S., a lot of that volunteer effort is squandered on long, cumbersome, bureaucratic meetings at which the party organizes itself into several layers of political party bureaucracy at the block, precinct, sub-house district, house district, senate district, congressional district, county, and state levels. Immense effort is thrown into soliciting and compiling resolutions and party platforms that are ultimately passed as an after thought and ignored by the elected officials who actually exercise power within the party. The meetings are many hours long, and become an exercise in mastery of Robert's Rules of Order, related to internal organizational matters of only marginal importance.

Some of it is mandated by state law and is unavoidable. But, much of it elaborates the required structures to a far greater extent than is required by law.

The somewhat rigid organizational structure of the party, which tracks the rather involved long ballot structure of the partisan elected offices in a typical U.S. state, also creates a situation where inevitably, some places have lots of people who want to be involved but there is a shortage of positions to utilize them, and other places have positions in the structure that go vacant or are only intermittently filled.

The focus on filling pre-ordained slots in this political structure in long, parliamentary procedure filled meetings also undermines potential resources of people who would like to be politically active in another way. Almost all people who want to be politically active care passionately about policy and changing the way that our world works for the better. But the tasks that political parties have for them to perform does little to nurture and satisfy these passions and connect the work they are doing to the larger causes that they care about.

But, while political parties must play a role in nominating candidates and even filling vacancies in political offices, nothing requires them to limit themselves to this bare minimum.

In the 19th century, political parties also routinely engaged in various forms of direct action. They sponsored newspapers. They had "ward healers" who went out in the community to help people, often immigrants, who might otherwise fall through the cracks because they didn't understand how to access government programs or because there were no government programs that directly addressed certain needs in the community. They helped unemployed people find jobs. They helped grieving families with no money conduct funerals for a deceased family member. They connected people who had legal claims to lawyers who could enforce those rights. They connected disgruntled workers with union organizers and helped elected officials identify work place problems that legislation could solve in way more organic and effective that modern "town meetings" that are often held only for show. They connected people who had various needs to government and charitable programs that addressed those needs, that the people in need were unaware of. They helped people deal with recalcitrant bureaucrats and red tape with the assistance of elected officials from the party in what is now known as "constituent service" and is usually mediated directly through elected officials. They did all manner of favors to directly address people's needs and in exchange won the loyalty of people in their communities.

In places like Denver, we are already very good at keeping turnout high and reliably in favor of Democratic candidates for public office, and for vetting those candidates. And, the demographic makeup and underlying attitudes of people in a large central city mean that even when the party is run in a mediocre manner, its candidates are still going to win elective office. It may be very inefficient and squander potential volunteer efforts and enthusiasm, but it has a base of party members large enough that it can achieve its core purpose despite its outdated, cumbersome, and inefficient structure.

But, it could do better. It could streamline the bureaucratic processes to a bare minimum, dispensing with some of the generic and unnecessary parts of Robert's Rules of Order based proceedings by tailoring them to its narrow task. It could centralize the level at which volunteer efforts are organized so that excesses of volunteers in places where they are available could more naturally be diverted to the places where their efforts are needed the most. For example, rather than organizing at the precinct level, it could make the based level of its organization the house district and have house district level party officials, collectively, carry out the tasks of precinct organizers for the entire house district.

But beyond that, county and state political parties could engage in more direct action and coordination. It could develop corps of modern day "ward healers" to help people who have trouble navigating complex bureaucratic governments or just fall through the cracks. It could arrange regulate meetings between those ward healers who have encountered the problems people are facing on the front lines in their daily lives with elected officials and constituent service staffers for them who have the power to address through problems from positions of power over government workers and through new legislation, if necessary. It could arrange meetings between ward healers and other charitable organizations and people like immigration and personal injury lawyers to help them know where to turn when people have particular needs that government doesn't currently address.

The most acclaimed Democratic Party political leader in recent times, President Obama, got his start as a community organizer. And, every county Democratic party political organization should follow his example and have community organizers, who might also be ward healers, who help communities come together to identify problems that can be solved, in part, through direct action, in part, through legislative action, and then help those communities to solve the problems that the community identifies.

Maybe in a county where this is needed, that may mean helping women who aren't aware of what is available, learn about and gain access to reproductive health providers like Planned Parenthood. 

Maybe a community needs help finding ways to put young men who aren't in school and are unemployed find paths for themselves that don't involve gangs and crimes (something that has been identified as the main problem driving the COVID era crime surge that was often attributed to police brutality protests instead).

Maybe a community needs to organize to protect tenant's rights, or to help people re-entering the community from incarceration to get government issued IDs, or to locate legal representation for low income people with immigration issues.

These are volunteer opportunities that would be snapped up by people who care deeply about policy issues and want to make a difference, and would make it worth the while of those volunteers to also devote some time to the unavoidable minimum of bureaucracy and the bureaucratic process.

And, these volunteers would also be energized by the opportunity to share what they have learned from their direct action, directly with elected officials in a way that so often is reserved for paid lobbyists in the status quo.

Actions speak louder than words, and this kind of activity would also dramatically increase the credibility of the Democratic party with people who accuse the party of conspiring with Republicans on behalf of monied interests insure that change doesn't happen, when in reality, they are thwarted by gridlock in a system designed to strongly favor the status quo over political change most of the time due to the other party's ability to stymie their efforts, especially at the federal level which is most visible.

Political tactics like widespread incorporation of direct action, community organizing, and facilitating the flow of information between common people on the front lines and elected officials, could help the party achieve a level of dominance and effectiveness that few people today imagine could even be possible, just as the political machines of the 19th century did using similar tactics.

Of course, I'm not advocating a return to the cheating, corruption, and political violence that 19th century political machines used to achieve their ends. But none of those things are inseparable from the concept of having political parties do more than play a supporting role in an electoral process that is fundamentally designed to be candidate driven.

Also, if this kind of direct action could increase the credibility of political parties generally as constructive and positive contributors to the political process. Public opinion might grow more favorable towards giving political parties are larger role in selecting their own candidates and in funding their campaigns for public office.

The Case For Borda Count Voting

Alex Tabarrok makes the case that "The Borda Count is the Best Method of Voting" at the Marginal Revolution blog.

The Borda Count has voter rank the n candidates from most to least preferred and assigns (n-1) points to the candidates. For example if there are 3 candidates a voter’s top-ranked candidate gets 2 points, the second ranked candidate gets 1 point and the last ranked candidate 0 points. The candidate with the most points overall wins.

This approach seems crude, but the proof is in the pudding. He notes that:

It’s well known that the voting methods we use are highly defective, as they fail to meet fundamental criteria like positive responsiveness, the Pareto principle, and stability. Positive responsiveness (monotonicity) means that if a candidate improves on some voters’ ballots, this should not reduce the candidate’s chances of winning. Yet, many voting methods, including runoffs and ranked-choice voting, fail positive responsiveness. In other words, candidates who became more preferred by voters can end up losing when they would have won when they were less preferred! It’s even more shocking that some voting systems can fail the Pareto principle, which simply says that if every voter prefers x to y then the voting system should not rank y above x. Everyone knows that in a democracy a candidate may be elected that the minority ranks below another possible candidate but how many know that there are democratic voting procedures where a candidate may be elected that the majority ranks below another possible candidate or even that democratic voting procedures may elect a candidate that everyone ranks below another possible candidate! That is the failure of the Pareto principle and the chaos results of McKelvey–Schofield show that this kind of outcome should be expected.

Almost all researchers in social choice understand the defects of common voting systems and indeed tend to agree that the most common system, first past the post voting, is probably the most defective! But, as no system is perfect, there has been less consensus on which methods are best. Ranked choice voting, approval voting and the Borda Count all have their proponents. In recent years, however, there has been a swing towards the Borda Count.

Don Saari, for example, whose work on voting has been a revelation, has made strong arguments in favor of the Borda Count. . . .

The Borda Count satisfies positive responsiveness, the Pareto principle and stability. In addition, Saari points out that the Borda Count is the only positional voting system to always rank a Condorcet winner (a candidate who beats every other candidate in pairwise voting) above a Condorcet loser (a candidate who loses to every other candidate in pairwise voting.) In addition, all voting systems are gameable, but Saari shows that the Borda Count is by some reasonable measures the least or among the least gameable systems.

The Borda Count also has the arguable virtue of resolving elections in a single vote and in being relatively simple to implement.

A say "arguable" because the problem with any system that considers second or greater choices in a single round is that it places a greater burden on voters to be familiar enough with all of the candidates to rank them, as opposed to permitting them to only know which one is their favorite. Multi-round voting systems allow voters whose first choice is eliminated in the first round to gather more information about the remaining contenders allowing voters to make a more informed choice about second and subsequent choices. More generally, demanding more research from voters reduces voter turnout.

Comments to the post also note that the name is just horrible from a marketing perspective, and that it greatly inflates the votes of voters who rank more candidates in total. Unlike majority rule, adding irrelevant alternatives can change society's choice. Apart from being a problem in its own right, this opens the door to gaming the set of policies on the ballot. Although the Borda count captures some sort of preference intensity, it still does so in a very crude way. Multiple commentators disagree that it isn't easy to game.

Another comment argues that:

Voting should be an error minimization. We want to minimize the total difference between people's preferences and what happens.

Approval voting will do this. The candidate that will minimize the sum error (that is the number of people that approved of him - those that didn't approve) will be the the candidate that has the most approval votes. Approval voting can also be used for parliaments where people vote for parties.

Also, Borda count focuses on the winner of an individual race, but may or may not bring a proper balance of political parties in a multi-body legislature. Another comment notes that: "until we get rid of the electoral college and the ability of state governments to gerrymander congressional districts, any voting system will just be nibbling at the corners."

Selected Lesser Grievances

There are lots of big issues facing the United States, the biggest of which is the existential threat to its continued functioning as a democracy posed by Donald Trump's candidacy in this year's Presidential election. And, this blog spends plenty of time thinking about those big issues.

But, the world is also full of things that aren't "big issues" but are minor annoyances and lesser grievances that it would be nice to see remedied, even if they aren't really make or break issues. This post recounts some of them.

Computer System Treatment Of Hyphenated Names And Similar Issues

* There ought to be a law that mandates that government and big business computer systems accommodate people who have hyphens, apostrophes, spaces, and just one or two characters in their names. This may have been an issue at the start of the computer age, but we have reached a point where it is no longer that hard to do.

Fraud

* We do a poor job of dealing with fraud perpetrated by phone, text message, email, social media, the Internet more generally, and the financial system. It should be possible to click a 9-1-1 style universal fraud reporting code and send reports of fraudulent activity instantly to the appropriate law enforcement agency and telecommunications providers, with no further effort from the person reporting it required. This should shut down the fraudster's phone number, and email accounts, social media accounts, and freeze any associated financial accounts almost instantly, and launch investigations as a matter of course into the perpetrators and into the institutions used by them to perpetrate the frauds. The cost of an individual fraudulent communication is small and the fraudsters count on that to shield them from investigations, which when they do happen aren't nimble enough to address it because the perpetrators are long gone. Yet, we have a system that is much better a dealing with the much less serious problem of copyright infringement than it is at dealing with fraud. 

* We should do a better job of dealing with deceptive business practices by credit reporting agencies that try to trick you into paying for services that they are required to provide for free.

* We should do a better job at shutting down businesses that dupe people into paying to get government services that are available cheaper or for free from the actual government.

* Credit cards should have PIN numbers the way that ATM cards do. This would dramatically reduce credit card fraud and reduce the incentive to steal credit cards.

* Food labeling should be more tightly regulated to discourage spurious and misleading health claims like "antibiotic free" in foods where antibiotics aren't allowed anyway, or claims that a food that ordinarily would have sugar but not fat anyway is "fat free".

Regulated Occupations

* We should have a central database of people who are sanctioned or "disbarred" from particular professions in a particular state or local jurisdictions, so that these people are prevented from going to some other state or local jurisdiction, or some other licensed occupation where the same conduct would also be disqualifying.

* The construction trades should be regulated at the state level, not the local level. This prevents an unreasonable barrier to entry for legitimate reputable construction contractors, which causes construction trade licensing to be ignored or overlooked, while also making it too easy for someone who has had their construction trade license rightfully revoked to just go to another locality that hasn't caught up with them yet.

Arrest Records

* We should also have a way of purging the official arrest records of people who are arrested or charged, but are ultimately not convicted of anything, from public records and databases (that do not at least disclose the exoneration with the arrest record report). Similarly, there should be a better process to purge or annotate criminal convictions that are vacated.

Mail, Package Delivery, And Porch Piracy

* The U.S. Postal System and all other package delivery firms should be liable for damages when it delivers a package to the wrong address (or doesn't deliver it at all), preventing the intended recipient from receiving it, even without requiring the sender to procure insurance, at least up to a certain dollar amount. 

* A parallel and similar system for dealing with fraud via mail to the one suggested above for telecommunications fraud should also be put in place. Violators (both firms and their managers and principals) should have their right to send mass mailings suspended for some period of time in addition to any other relief.

* A certain percentage of packages should have tracking chips that can be used to locate the packages if they are taken by porch pirates, allowing the perpetrators to be found, and creating too high of a risk for people contemplating porch piracy to consider doing so.

* Mutual funds should be required to make information about their funds publicly available, but mailing prospectus-like disclosure documents to their investors on a regular basis just kills trees without providing meaningful improvements in investor knowledge.

* The same is true of privacy policies. Require them to be made available in some standardized place, but don't mail them out to everyone connected to a business.

* Low advertiser postal rates for "junk mail" that don't reflect reduced costs for the postal system due to, e.g., pre-sorting, should be abolished and instead, all mail should have to pay first class mail rates. If it isn't worth sending a first class mail rates, it isn't worth bothering people with the unsolicited junk mail.

* Congressional franking privileges should be abolished and replaced with a budget for postage for each U.S. House and U.S. Senate office, based upon the population of the state in question for U.S. Senate offices. This privilege is widely abused by office holders and undermines the economic viability of the U.S. Postal Service.

* Mail-In Ballots should have business return postage type treatment so that the voters doesn't have to attack any postage to return their ballot through the mail, paid for by the governmental body conducting the election.

* Registered voters should indicate (in a database that is not public record at an individual level, just at a statistical level), their preferred language for election related information and communications. Thus, election related disclosures and ballots would go to voters only in their preferred language rather than in both English and Spanish with other language versions available upon request. This would make ballots more readable, and cut in half the amount of paper wasted in pre-election disclosures. It would also significantly reduce the burden on voters who need to receive translations into languages other than English or Spanish.

Long Ballots 

Ballots are too long, in part, because we have voters do too much. But long ballots discourage voting generally and lead to uninformed decision making.

* We should not elect, at any level coroners, surveyors, engineers, dog catchers, assessors, treasurers, clerks, or secretaries of state, who are supposed to be carrying out technocratic tasks with only limited discretion.

* Elections should not be administered by partisan elected officials, or by partisan political appointees.

* Judicial retention elections like the ones held in Colorado make ballots much longer (just short of half the questions on my ballot this year are judicial retention elections) and demand a great deal of effort from voters who try to make those decisions in an informed manner, but provide very little benefit. Typically only one or two judges in the entire state are not retained in any election cycle, and sometimes, none are. Only about 1% of judges are ever removed this way, which inadequate purges inadequate judges. And, a significant share of judges who are removed are removed for decisions that are legally required but unpopular. Simply put, the general voting public is ill-equipped to make this decision even with state supplied information pamphlets, and it is a great burden on voters that makes ballots too long. There might be a place for retention elections, but only in cases which are singled out as "high risk" in some reasonable manner, for the voting public to focus upon.

* In Colorado, the Taxpayer's Bill Of Rights, requires voters to approve tax increases and to authorize retention of revenues from existing taxes if those revenues grow fasters than a formula in the state constitution. I don't have a problem with the first kind of voting requirement for new taxes. But, votes on retention of revenues from existing taxes (called "debrucing" ballot issues, after Doug Bruce, the author of TABOR in Colorado) should not be required and make our ballots unnecessarily long.

* Similarly, while voters should have to authorize increased debt limits for local governments, they should not have to authorize incurring debt at levels previously authorized by voters and paid for with existing taxes, after the original debt is paid down, at least in part.

* The CU Board of Regents and the state school board, should not be chosen by the general public in elections, let alone, in partisan elections.

* Perhaps in addition to petitions to establish a minimum threshold of support for a ballot measure before putting it on the ballot for the general public to consider, citizen's initiatives should face a public opinion poll test and only be granted ballot access if it can garner at least, say, 35% support, in a public opinion poll conducted by a reputable and certified firm.

Notarization

* The requirement that statements made under penalty of perjury be presented in a notarized affidavit made under oath should be replaced with a rule allowing unnotarized declarations made under penalty of perjury in court documents, something that is already the case in the federal court system, and the court systems of Colorado and Utah, at least.

* Notarized but not otherwise witnessed wills are valid in Colorado. This should be the norm nationally.

Copyrights, Rights Of Publicity, And Privacy

Copyright laws are too strong for a digital age. Some examples:

* There should be more legally binding safe harbors for fair use. Far too many cases are in gray areas decided on a case by case basis by a particular judge and jury.

* Some version of a fair use defense or dramatic remedy limitation should be available in the cases where someone is sharing content made available by a copyright holder or a licensee for free on the Internet or via freely available broadcast television or radio.

* There should be a mechanism for mandatory licensing of orphan works and for translations of works that are not available in a particular language.

* There are overly expansive protections for derivative works in areas such a fan fiction that should be dialed back.

* Statutory damages in lieu of actual economic damages, and the availability of attorneys' fees in actions for copyright infringement, should also be greatly curtailed. In general, copyright remedies and rights should be closer to an unjust enrichment tort remedy and less like a property right. 

* Rights of publicity should be governed by a single, preclusive, federal law, not by a mishmash of state laws.

* Europe's General Data Protection Regulation (GDPR) is far too expansive and far too protective of privacy rights to the detriment of other legitimate interests.

* The scope of the applicability of the GDPR to people who are not in Europe, but can have dealings with Europeans over the Internet is far too unclear.

Traffic Laws

* Speed limits should reflect the speed that an ordinary reasonable driver would travel on a road as it is designed. Local governments should not be allowed to set lower speed limits than the road conditions reflect in response to local community pressure. If a local government wants traffic to move more slowly than the legally authorized speed limit given the road conditions, it needs to redesign the road, rather than just creating a speed trap.

* When push comes to shove, bicycles should be regulated as pedestrians not as motor vehicles. They should go on sidewalks and designated bike paths in most cases, rather than being expected to share designated highways and arterial streets with automobiles. A bicycle crashing into a pedestrian is much less serious than a car crashing into a bicycle.

Debt Collection

* It should be a serious offense to try to collect zombie debts that are barred by the statute of limitations or have been discharged in bankruptcy.

* It should be a serious offense to try to collect debts from the next of kin of debtors who have not guaranteed the debt in writing, rather than the decedent's probate estate.

Medical Billing

* Until the day when we have universal health care, health care providers to patients with health insurance should be forbidden from trying to collect their bills directly from the patient beyond a health insurance policy authorized co-pay to be paid at the time of service. Any provider that accepts any payment from that patient's health insurance should be required to honor the health insurance company's disallowance of their charges. And, health insurers should have to pay the full allowed charge to the health care provider and then collect the patient's share of that charge under the insurance policy from the patient. Patients shouldn't be put in the middle and as a guarantor in the face of disputes between health care providers and health insurers. A patient should be able to know exactly what he or she will owe simply by reading their health insurance policy.

* Emergency rooms shouldn't be allowed to charge more to someone who errantly went to an ER instead of an urgent care facility for the same services. The task of getting someone to the right level of care takes medical knowledge and should be the responsibility of the health care provider.

* Health care providers shouldn't be allowed to charge different rates for the same work done at a hospital affiliated facility (which is often billed at a higher rate) than at another facility.

* When there are contingent fee lawsuits for personal injuries, health care providers with health care liens on the recovery should have to share the risk in a way that afford the injured person some benefit of the lawsuit according to a standard formula that doesn't have to be negotiated on a case by case basis.

Court E-Filing Discrepancies

* Court E-Filing systems should have much less authority to just reject filings. Instead, if there is problem with the way that the filling was put into the e-filing system, that correction should just be made by the system, and if there is a problem with the document filed itself, it should issue an order to show cause directing the filer to correct it in a clearly described manner before a reasonable deadline to prevent it from being stricken with a loss of the original filing date.

Municipal Ordinances

* Municipalities and local governments should not be permitted to punish ordinance violations with incarceration or arrest. Incarceration should be limited to violations of state laws.

* Colorado should abolish municipal courts and require municipal ordinance violations to be enforced in civil actions brought by city attorneys in county courts that are part of the state court system.