2020 Election Ethics Train Wreck

Ethics Dunces: Apparently 30% Of Democratic Voters

/ Jack Marshall / 43 Comments

Rasmussen Tweet

We must begin with the fact that polls of all kinds have the approximate credibility of palm readers. Rasmussen, however (and Gallup) disgraced itself rather less than its competitors in measuring the election trends before November. The verdict of Ethics Dunces would still hold if the percentage was 20%, 10% or 100%, however. The polling results above were published on November 20; maybe fewer people are convinced now that the election was stolen, since the various challenges filed in court have been failing. The statistics above still prompt these observations:

1. If Democrats think that their party steals elections, making it a threat to Democracy, why do those Democrats continue to identify with a party that cheats? The only explanation can be that they do not support Democracy, and believe that their will should be imposed on their fellow citizens by illegal means, They are totalitarians by philosophy and nature.

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Comment Of The Day: “Sunday Ethics Insomnia, 11/29/2020: No Wonder I Can’t Sleep!” (Item #2)

/ Jack Marshall / 10 Comments

Item #2 in this morning’s potpourri was…

2. “Hello, Newman…” According to the Postal Service’s own records, more than 150,000 mail-in ballots were not delivered in time for them to be counted on election day. This is, of course, as I and anyone else who was paying attention expected and predicted, because the USPS is undependable I am surprised that the number was that low.

The US Postal Service is a glaring mass of unethical bureaucracy—incompetent, archaic, irresponsible. Made mostly superfluous by email and private delivery services, it continues to waste taxpayer money while not even doing a good job at what’s left of its original function. The USPS, like lesser boondoggles like NPR and PBS, are kept alive by official laziness and cowardice, plus an unwillingness to solve a problem when that problem has vocal allies. Putting the integrity of a national election in the hands of such an organization was so illogical that it naturally created, and creates, the belief by many that it was a deliberate attempt to create chaos resulting in enough smoke and fog to cover up deliberate mischief.

There, I’m glad that’s off my chest.

Steve Witherspoon’s Comment of the Day begins with the quote above. Here it is, sparked by Item #2 of the post, Sunday Ethics Insomnia, 11/29/2020: No Wonder I Can’t Sleep!:

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Sunday Ethics Insomnia, 11/29/2020: No Wonder I Can’t Sleep!

/ Jack Marshall / 15 Comments

1. I hate 99.9% of the petitions offered at Change.org. but I’m signing this one . It reads,

Professor Dorian Abbot, a tenured faculty member in the Department of Geophysical Sciences at the University of Chicago, has recently come under attack from students and postdocs for a series of videos he posted to YouTube expressing his reservations about the way Diversity, Equity, and Inclusion (DEI) efforts have been discussed and implemented on campus.
In these videos Prof. Abbot raised several misgivings about DEI efforts and expressed concern that a climate of fear is “making it extremely difficult for people with dissenting viewpoints to voice their opinions.” The slides for each of Prof. Abbot’s videos can be found here, and his own account of events and his opinions can be found here. Nowhere in these materials does Prof. Abbot offer any opinion that a reasonable observer would consider to be hateful or otherwise offensive.

Shortly after uploading the videos, Abbot’s concerns were confirmed when 58 students and postdocs of the Department of Geophysical Sciences, and 71 other graduate students and postdocs from other University of Chicago departments, posted a letter containing the claim that Prof. Abbot’s opinions “threaten the safety and belonging of all underrepresented groups within the [Geophysical Sciences] department” and “represent an aggressive act” towards research and teaching communities.

[Pointer: Pennagain]

2. “Hello, Newman...” According to the Postal Service’s own records, more than 150,000 mail-in ballots were not delivered in time for them to be counted on election day. This is, of course, as I and anyone else who was paying attention expected and predicted, because the USPS is undependable

I am surprised that the number was that low.

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2020 Election Ethics Train Wreck Update: Ethics Zugzwang In Pennsylvania

/ Jack Marshall / 16 Comments

pennsylvania-scaled

[Let me begin by apologizing for being so inconsistent in my spelling of zugzwang (or zugswang). Both are acceptable, but I should pick one, and I’m picking zugzswang, because it will score more points in Scrabble. I will eventually go back and change the many “zugswangs” in previous posts.]

Oh-oh.

A Pennsylvania state court judge yesterday issued a preliminary injunction preventing Pennsylvania from taking any further steps to certify the election, including the assignment of 20 electoral votes to Joe Biden,pending further court hearings and rulings. The ruling upholds an injunction from earlier in the week.

The opinion is here. The issue is whether legislative expansion of absentee balloting to universal mail-in balloting violated the Pennsylvania Constitution. (It sure looks like it to me.) The petitioners seek to preclude the Secretary of State from transmitting the certification or otherwise perfecting the electoral college selections.

Here is the judge’s description of the claim:

In the Petition, Petitioners allege that the Act of October 31, 2019, P.L. 552, No. 77 (Act 77), which added and amended various absentee and mail-in voting provisions in the Pennsylvania Election Code (Election Code),1 is unconstitutional and void ab initio because it purportedly contravenes the requirements of the Pennsylvania Constitution. Petitioners allege that Article VII, section 14 of the Pennsylvania Constitution provides two exclusive mechanisms by which a qualified elector may cast his or her vote in an election: (1) by submitting his or her vote in propria persona at the polling place on election day; and (2) by submitting an absentee ballot, but only if the qualified voter satisfies the conditions precedent to meet the requirements of one of the four, limited exclusive circumstances under which absentee voting is authorized under the Pennsylvania constitution. (Petition, ¶16.) Petitioners allege that mail-in voting in the form implemented through Act 77 is an attempt by the legislature to fundamentally overhaul the Pennsylvania voting system and permit universal, no-excuse, mail-in voting absent any constitutional authority. Id., ¶17. Petitioners argue that in order to amend the Constitution, mandatory procedural requirements must be strictly followed. Specifically, pursuant to Article XI, Section 1, a proposed constitutional amendment must be approved by a majority vote of the members of both the Pennsylvania House of Representatives and Senate in two consecutive legislative sessions, then the proposed amendment must be published for three months ahead of the next general election in two newspapers in each county, and finally it must be submitted to the qualified electors as a ballot question in the next general election and approved by a majority of those voting on the amendment. According to Petitioners, the legislature did not follow the necessary procedures for amending the Constitution before enacting Act 77 which created a new category of mail-in voting; therefore, the mail-in ballot scheme under Act 77 is unconstitutional on its face and must be struck down. Id., ¶¶27, 35-37. As relief, Petitioners seek, inter alia, a declaration and/or injunction that prohibits Respondents from certifying the November 2020 General Election results, which include mail-in ballots that are permitted on a statewide basis and are allegedlyimproper because Act 77 is unconstitutional.

The Judge found that the plaintiffs were likely to prevail on their state constitutional claims…

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2020 Election Ethics Train Wreck Update: Well THIS Doesn’t Bode Well…

/ Jack Marshall / 17 Comments

spelling problem

That’s the embarrassing first sheet of the more than 100 page lawsuit filed by lawyer Sidney Powell asking that 96,000 ballots (“at minimum”) in Georgia be disqualified. This is apparently the attack on the Georgia election that Powell referred to as releasing “the Kraken.”

Nobody seems to feel it’s necessary to explain that “Release the Kraken” is a reference to the semi-cheesy Ray Harryhousen stop-action film “Clash of the Titans,” which starred “LA Law’s” Harry Hamlin as Perseus, the Greek mythological hero. In the movie (though not in mythology), Perseus defeats the monstrous Kraken, which is released by the bad guys to kill him and Andromeda (it’s complicated). For some reason Perseus, in addition to carrying around Medusa’s head (which turns the Kraken to stone), rides the winged horse Pegasus. Pegasus was the transportation of a different Greek myth hero, Bellerophon. Neither Bellerophon nor Perseus had anything to do with the Kraken, which is not even a Greek myth monster. It’s Scandinavian, and is basically a giant squid.

Observations:

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Ethics Proposition: Justice Barrett Should Immediately Recuse Herself From Any Future SCOTUS Decisions Relating to the 2020 Presidential Election

/ Jack Marshall / 70 Comments

Barrett Trump

I will stipulate that the newest Supreme Court Justice does not have to recuse, and that even the judicial ethics rules applying to other Federal judges (no judicial ethics rules are controlling for Supreme Court justices) would not require recusal in Justice Barrett’s circumstances.

I will also concede that the arguments that she should not recuse are significant and important:

1. Were she to recuse, it would be interpreted by many as an acknowledgment that her Senate critics and others were correct to suspect that she was nominated to assist the President if necessary in any Supreme Court challenges to the election results.

2. Her recusal would suggest a precedent holding that a Justice being nominated by a President creates a rebuttable presumption that such a Justice has a conflict of interest that would interfere with the Justice’s ability to exercise independent and objective judgment in any case directly affecting that President’s interests.

3. Her recusal would leave the Court with a potential 4-4 split on a case that would have major impact on the nation.

4. Democratic officials’ demands that she recuse herself are driven purely by partisanship, and are hypocritical. Justice Kagan, appointed by President Obama, did not recuse herself in cases involving the Affordable Care Act, for example.

All this is true,

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Distracted Ethics Warm-Up, 11/24/2020: “A Website, Two Governors And An Actress Walk Into A Bar…”

/ Jack Marshall / 26 Comments

distracted

I’m writing this while simultaneously watching an Ethics Rock Extreme Zoom replay and answering typed-in questions from participants. Boy, I hate watching and listening to myself….

1. Unethical website? www.everylegalvote.com is labeled by the New York Times as “promoting claims of fraud, built on fantasy.” I’d call the big map showing Biden with 214 Electoral votes and the President with 232 misleading. I also find the Times’ constant refrain in headlines and stories that the President is “trying to subvert a free and fair election with false claims of fraud” an outright lie.” The 2020 election was not “fair” because of biased and manipulated reporting by the Times and most of the media, and there is no question that many of the allegations of fraud are accurate, with legitimate reasons to suspect broader corruption.

The site is also serving valid purpose since the news media isn’t reporting the current controversies objectively.

2. And this is why most celebrities and actors should shut up, because they make people stupid. Here is actress Kristen Stewart’s response to a interviewers question on how she feels about gay activists demanding that only gay actors should be allowed to play gay characters (Stewart decided she was gay mid-career. Whether she stays gay —think Ann Heche—is an open question. It’s all about branding…) :

I would never want to tell a story that really should be told by somebody who’s lived that experience. Having said that, it’s a slippery slope conversation because that means I could never play another straight character if I’m going to hold everyone to the letter of this particular law. I think it’s such a gray area. There are ways for men to tell women’s stories, or ways for women to tell men’s stories. But we need to have our finger on the pulse and actually have to care. You kind of know where you’re allowed. I mean, if you’re telling a story about a community and they’re not welcoming to you, then fuck off. But if they are, and you’re becoming an ally and a part of it and there’s something that drove you there in the first place that makes you uniquely endowed with a perspective that might be worthwhile, there’s nothing wrong with learning about each other. And therefore helping each other tell stories. So I don’t have a sure-shot answer for that….Sometimes, artfully speaking, you’re just drawn to a certain group of people. I could defend that, but I’m sure that somebody with a different perspective could make me feel bad about that — and then make me renege on everything I’ve just said. I acknowledge the world that we live in. And I absolutely would never want to traipse on someone else’s opportunity to do that — I would feel terrible about that. So my answer is fucking think about what you’re doing! And don’t be an asshole.

Thanks for that clarification, Kristen..

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40th Anniversary Ethics, 11/23/2020…

/ Jack Marshall / 33 Comments

That was the recording the lovely and brilliant Grace Bowen Marshall and I danced to at our wedding reception. An old fashioned tune, you say? Hell, it was old-fashioned then. After an uproarious party featuring the combined talents of my two performing groups, The Showstoppers and The Music Lobby, seasoned by my cherished friend Jay Silva’s saxophone rendition of “Zing! Went the Strings of My Heart.” I performed “Let a Woman in Your Life” (from “My Fair Lady”), and it was off to the historic Hay-Adams hotel (across from the White House) and from there to a cozy Civil War era inn near Charlottesville, where the charming host brought us breakfast in bed, and his cat and dog slept with us. As I said: cozy.

And thus began a great adventure that still has some twists and turns, battles, defeats and triumphs to reveal.

What a wonderful day.

1. Stay classy, Jenna!

Micropenis

You know, once upon a time a public utterance like this would be viewed as a breach of legal professionalism, if not an outright ethics violation. By the standards of past Trump lawyers like Michael Cohen, however, it seems positively quaint.

This kind of thing is why I caution lawyers to avoid Twitter.

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The 2020 Election And “The Fruit Of The Poisonous Tree”

/ Jack Marshall / 45 Comments

The Fruit of the Poisonous Tree is a century-old legal doctrine that extends the exclusionary rule to make evidence inadmissible in court if it was discovered as a result of illegally obtained information or evidence. If the evidence”tree” is “poisoned,” so is its “fruit.” The doctrine was established in the 1920 case of Silverthorne Lumber Co. v. United States; Justice Felix Frankfurter gets credit for the metaphor from his 1939 opinion in Nardone v. United States.

There are three exceptions to the rule. The evidence will not be excluded if it was discovered from a source unrelated to the illegal activity, if its discovery was inevitable, or if the connection between the illegal activity and the discovery of the evidence is weak. The most famous example of the doctrine in action is probably “Dirty Harry,” where a mad serial killer is set free because detective Harry Callahan locates where the maniac had buried a girl alive by torturing him until he revealed the information..

The “fruit of the poisonous tree” analogy has turned up in the Ethics Alarms comments and elsewhere on the web regarding a possible application to voter fraud in the 2020 election. The theory: even if enough votes in a particular state can’t be conclusively shown to have been fraudulent to change that state’s winner in the Presidential election, substantial proof of cheating by the party prevailing in that states’ voting ought to invalidate the result, since the vote total itself was the result of cheating, and the entire election is “poisoned.”

There is a lot wrong with the theory and the analogy, both from a legal and an ethical perspective.

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This Is Unethical, But The Rhetoric From Democrats, Pundits And The Media Make Resisting The Impulse Nearly Impossible

/ Jack Marshall / 40 Comments

goose-and-gander2

Matt Mayer of The Spectator, in an essay titled, Revenge of the Republicans, writes in part,

The 2020 election has provided fertile ground upon which Republicans can spend the next four years doing to Joe Biden what the Democrats did to Donald Trump and George W. Bush. 

For four years, Democrats and their media allies trumpeted every claim, no matter how baseless or crazy, that Trump’s 2016 election win was illegitimate and fraudulent. Despite zero evidence that so much as a single vote was interfered with, Democrats peddled the hoax that Russia interfered in the 2016 election to elect Trump. Even after the Mueller investigation exonerated Trump and his campaign from the collusion canard, Democrats, led by the shameless Adam Schiff, continued to allege collusion. Their simple goal was to undermine and delegitimize the Trump presidency. It clearly worked to the degree some voters turned their backs on Trump even as they voted Republican down-ballot….

Though he managed to get far more done than people give his team credit for, Trump governed under a dark cloud for most of his presidency. His team had to waste precious time and energy defending him against the Mueller investigation with its phalanx of Democratic hitman lawyers and corrupt FBI personnel. The media aided this assault by running stories over the last four years based on anonymous sources, several of which ended up being false. No president has had to undergo so thorough an investigation on such thinly-sourced claims. Trump may be lots of things, but he is as patriotic and faithful to America as any man who ever occupied the Oval Office….

…The fact of the matter is Biden’s call for unity is like the kid in your class who lost every game, but always shouted ‘starting now’ only after he was ahead. In the days since Biden asked Republicans to turn the other cheek, his old boss Barack Obama launched his book promotion by claiming that Trump only won in 2016 because too many Americans are racists. Obama followed that left hook to Main Street America by then denigrating Trump as a dictator despite the fact that it was Obama who arrested and investigated journalists during his presidency.

…One legacy of Trump is he taught Republicans how to fight back. Thus, what’s good for the goose is good for the gander. Biden will now serve under a cloud of suspicion and feel the heat as investigators dig into every nook and cranny of his family’s life. If Republicans pick up the handful of seats they now need to take back the US House in 2022, Biden and the Democrats will rue the day they made Schiff their attack dog.

Turnabout is fair play, especially in politics.

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