2020 Election Ethics Train Wreck Update: Ethics Zugzwang In Pennsylvania

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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Morning Ethics Warm-Up, 11/12/2020: The “I’m Sorry I Ignored Veteran’s Day But I Was Distracted By The Enemies Of The People” Edition

The reason for the choice of song will reveal itself at the end of the post…

1. No 2020 Election Train Wreck update this morning, because there are only a few items to report. One stinker from yesterday: the New York Times had an across-the-front page, “This is important!” headline that read, “ELECTION OFFICIALS NATIONWIDE FIND NO FRAUD.”

How did the Times’ ethics fall so far, so fast? That headline is pure propaganda, deceitful on its face. Do the editors think even the most partisan of their readers are that gullible?

2. Then there’s the Washington Post. I almost hate to post this after trying to talk commenter of the day Steve Witherspoon off the ledge in the previous Ethics Alarms entry. USPS whistleblower Richard Hopkins has demanded Tuesday that the false Washington Post story claiming he ‘recanted’ his sword statement regarding directions he was given by his Erie, PA postmaster to backdate ballots mailed after Election Day. He did not recant. In a video, the veteran says,

“My name is Richard Hopkins, I’m a postal employee who came out and whistleblew on the Erie, Pennsylvania postal service, postal office. I am right at this very moment looking at an article written by the Washington Post—it says that I fabricated the allegations of ballot tampering. I’m here to say that I did not recant my statements, that didn’t happen, that is not what happened. You will find out tomorrow, and I would like that the Washington Post recant their wonderful little article that they decided to throw out there, out at random.”

He has been placed on non-pay status by the Erie Post Office, which seems like a violation of whistle-blower laws to me, but I haven’t checked. GoFundMe, based on the Post story, erased the effort to provide him and his family financial support while he is being punished by the USPS.

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Good Morning! Once Again, Here Is A 2020 Election Ethics Train Wreck Update…[Corrected And Revised]

live_map_president

1. As you can see from the map above, RealClearPolitics, the remarkably balanced politics blog (which means that progressives view it as a right wing propaganda organ) still rates the election as undecided.

Notice of Correction: Several sources reported incorrectly that RCP had called the election for Biden and then reversed itself based on, among other developments, the Trump campaign’s lawsuit alleging widespread voting fraud in Pennsylvania. RCP sent out a tweet denying that it had ever had William Penn’s pride and joy listed as anything but unsettled. Thanks to EA readers who pointed this out, and good for RCP for not following the mob and its conventional wisdom. What matters, of course, is what the map says now, and that at least one non-partisan, responsible source officially regards the election as undecided, which, in fact, it is.

RCP also shows Arizona, Alaska for some mysterious reason, Georgia, and North Carolina. All but Alaska currently have the President less than a percentage point behind with recounts looming and legitimate questions popping up daily. Biden’s Electoral vote count is under 270, at 259.

Observes Victory Girls, accurately,

Supreme Court Justice Samuel Alito ordered the state to segregate votes that came in late. The state has been very reluctant to follow the orders of a Supreme Court Justice. This happened because at the last minute the Governor of Pennsylvania asked the state Supreme Court to extend the voting time. Constitutional expert Ken Starr [explains] this unconstitutional action:

“…[W]hat happened in Pennsylvania over these recent weeks is a constitutional travesty. Governor Wolf tries to get his reforms, his vision, as he was entitled to do, through the legislature of the Commonwealth of Pennsylvania. He failed. He then goes to the state Supreme Court, which by a divided vote, accepted the substance of what Governor Wolf was doing, and then added thereon nooks and crannies as well.”

In short, there are a lot of Biden votes in Pennsylvania that may be disallowed.

Pennsylvania isn’t enough: Trump still has to run the table to win, and that is a huge long-shot. But the claim that the election is over and settled now is simply and unequivocally false.

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Day After The Day After Updates And Observations On The 2020 Election

Thanksgiving hangover

1. I had written some time ago that the best possible outcome ethically would be a Trump landslide, and the worst would be a Trump win in the Electoral College while losing the popular vote. Somehow I missed the obvious worst scenario, which is what we are getting: a mega-2000 mess, with multiple states in doubt for various questionable factors, resulting in litigation by both sides, stretching on into December.

This was one more example of how the false and biased polls interfered with legitimate analysis.

2. I have frequently praised Richard Nixon for passing on the opportunity to challenge the results in Illinois, Texas and other states after the 1960 election, and saying that it was more important to respect the process and not throw an election into turmoil. Of course, based on what we know about Nixon. That may have been a ploy and virtue signaling: while there was certainly some voting shenanigans, notably in Richard Daley’s notoriously corrupt Chicago, Nixon maybe have been told that he would lose anyway, and that challenging the results would make it harder for him to come back and win in ’64 or ’68. Nonetheless, Nixon set the norm, and Al Gore broke it in 2000. Now it seems insane for a party to not to challenge a close election if there seems to be any question about the legitimacy of the result.

That shift is also a reflection of the widening chasm between the two parties. There wasn’t much difference philosophically between the Democrats and Republicans in 1960, nor between Nixon and Kennedy. (There wasn’t much difference between their ethical instincts either, but we didn’t know that at the time.) Today there is every reason to believe that for a party to just shrug off the possibility that a Presidency has been stolen in the best interests of the nation is a breach of duty and a betrayal of the public trust.

However, a party (like the Democrats since 2016) or a candidate (like Hillary Clinton) continuing to deny the results after they have been validated is unforgivable and destructive.

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LATE Morning Observations On Election 2020. So Far…

Screenshot-2020-11-04-at-11.09.15-AM-600x391

Tip: The most important observation is the last one.

1. In the hours between when I started the last post when I got back out of bed two-and-a half hours later, two crucial states where the President was shown leading flipped to narrow leads for Biden. This does not prove or even suggest chicanery, but under the circumstances it looks bad. (“Gee, they cheat fast!” was a comment on one of the conservative blogs following the election live.) The meme above may be unfair, but it accurately expresses what went through my mind when I saw the new totals.

This is why it is unethical to create “the appearance of impropriety” if you have anything to do with the government. People need to trust the government, its institutions, and the fairness and openness of elections. The appearance of impropriety is just as damaging as actual impropriety. We have already seen this in the aftermath of the Mueller investigation and the prosecution of General Flynn.

2.  Both parties have worked to deliberately create suspicion about the political process, and the decision to vastly increase the use of mail-in ballots, in what should have been recognized as a close election, knowing that doing so would delay the process, create opportunity for mischief, and keep the results of the election mired in uncertainty for days and even weeks was either epically incompetent or sinister. Now, instead of the single state having a “too close to call” vote total with the Presidency hanging in the balance as in 2000, we have six, which will presumably multiply litigation and uncertainty. That’s a disaster, no matter what the final result is, and it is a disaster that should have been avoided at all costs. It was unethical and negligent not to avoid it at all costs.

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Sunday Morning Alarms, 4/5/2020: After The First Two Items, You Won’t Want To Read Any More And Will Just Go Back To Bed…

….like I did…

1. KABOOM! Pennsylvanian Anita Shaffer, 19, decided to flee her York County home  a week ago for a mental health drive.  On her way back home, two Pennsylvania State Police officers stopped her about her car’s faulty tail-light. While talking with the officers,  Shaffer told them that she was just “going for a drive.” In response, they wrote her a ticket for more than $202.25 for violating the Pennsylvania Governor Tom Wolf’s stay-at-home order.

That’s the citation above. It says Shaffer “failed to abide by the order of the governor and secretary of health issued to control the spread of a communicable disease, requiring the closure of all non-life-sustaining businesses as of 20:00 hours on March 19, 2020. To wit, defendant states that she was ‘going for a drive’ after this violation was in effect,”

State police spokesman Ryan Tarkowski explained the ticket, saying, “Troopers have been encouraged to use contacts with the public as opportunities to reinforce the necessity to abide by stay-at-home orders.”

And how, exactly, does ticketing an individual who is engaged in conduct that cannot possibly infect anyone  accomplish  that?

Well, Tarkowski blathered,  being a soulless bureaucrat incapable of admitting that THE STATE is full of it in this case, “Troopers maintain discretion to warn or issue citations and the decision is specific to the facts and circumstances of a particular encounter.”

Fine. These facts do not justify a ticket by any stretch of the imagination. The officers’ discretion shows they are not qualified to wield the power they have. Indeed, the citation magnifies the extreme arbitrariness of such orders, and their danger when those charged with enforcing them have the judgment of Gestapo officers.

I’m surprised the cops didn’t slap her around a little, shoot her in the kneecap or even rape her, you know, to show the defiant prole who’s boss and not to ever, ever defy Big Brother.

Tarkowski also said Shaffer’s citation is the only one issued for violating the stay-at-home order. It’s good that the police picked a representative one to symbolize the Pennsyvania message to it’s citizens, which is apparently, “You will do as you are told, underlings.”

Well, not to be crude, but screw that.

Shaffer told reporters  she was within her rights to operate her car, and plans on challenging the citation.  Good. And again I ask, where is our vaunted American Civil Liberty Union on this issue? For three years, we have been hearing false cries of outrage about how the President is an autocrat just waiting to crush our civil rights, and now, when the civil rights of citizens are being ignored by tin pot governors all over the country, the ACLU just shrugs and sighs in its bunker, “It’s for the greater good.”

Oh..there was nothing wrong with her tail light. Continue reading

Morning Ethics Warm-Up, 1/16/2020: Special “Morning Warm-Up That Actually Gets Posted In The Morning” Edition [UPDATED!]

Good morning, good morning!

Well, my Christmas tree is drying out, and its demise is near. Every January since I was a small child the slow acceptance that soon this bright, sparkling symbol of innocence, love, family optimism and joy will be gone has been painful, and you know, in this respect, I haven’t changed a bit. There’s no reason, of course, why we can’t have the spirit of Christmas all year long—heck, Scrooge pulled it off—but somehow the loss of the Christmas tree reminds me that everyone will be back to their same petty, nasty, selfish ways, if they aren’t already. Even me.

<sigh!>

1. The New York Mets don’t get ethics, but we knew that. The Mets’ new manager is Carlos Beltran, fingered in the MLB report on the Houston Astros cheating scandal as one of the ringleaders of the scheme that already has cost that teams manager and general manager their jobs. Alex Cora, who shared prominence in the report with Beltran, also was fired from his job as manager of the Red Sox. Beltran escaped snactions from MLB because he was a player at the time, and the baseball management decided, for many reasons, that it could not punish the players. But now not just a player, but according to the investigation the player at the center of the cheating scandal is a manager. Isn’t the next step an obvious one? A major league team can’t have as its field leader a player who was recently identified as a key participant in a cheating scandal in which ever other management figure was fired, can it? How hard is this? To make matters worse, Beltran had  recently lied in interviews with sportswriters about his knowledge of the Astros scheme. Yet so far, the Mets haven’t taken any action at all.

Beltran will be fired before the season begins, but the longer it takes for the Mets to figure out why, the more clearly the organization’s ethics rot will come into focus.

UPDATE: Beltran was sacked by the Mets this afternoon. (Thanks to Arthur in Maine for the news.) See? What did I tell you?

2. And speaking of baseball ethics rot, New York Times sports columnist Michael Powell proved his nicely. He mocks the current baseball cheating scandal thusly: Continue reading

Memorial Day Ethics Warm-Up, 5/27/19: Gee, Can We Celebrate Those Who Die For Our Nation And Not Be “Nationalist”?

 

This, of course, was my father’s favorite Sousa march; he once mortified my mother by standing and doing a parade ground march routine on the Mall when they played it on the Fourth of July. You knew it has words, right?

1. Nah, there’s no mainstream media confirmation bias! Political scientist Time Magazine columnist and Donald Trump critic Ian Bremmer intentionally tweeted as fact a fake Donald Trump quote:

“Kim Jong Un is smarter and would make a better president than Sleepy Joe Biden.”

Immediately, the quote was picked up on social media by the Trump Deranged, mainstream media pundits, and some elected officials. Here’s ridiculous CNN contributor Ana Navarro, who exists on the network solely to attack the President as a “Republican”:

“Don’t shrug your shoulders. Don’t get used to this insanity. The President of the United States praising a cruel dictator who violates human rights, threatens nuclear attacks, oppresses his people, and kills political opponents, IS NOT FREAKING NORMAL.”

Note she also gets in one of the top anti-Trump Big Lies, that the President is “abnormal.”

Bremer’s quote was retweeted thousands of times, until he admitted that he made it up. This is using the web to spread falsehoods. He should be banned from the pages of Time and dismissed as an analyst and a pundit.

Incredibly, Ann Althouse defended the lie as satire, writing,

“Stupid of journalists and congressmen to retweet it as an actual quote, but there’s nothing wrong with “fabricating” it. Are we so humor deaf that we’re going to start denouncing comedians as liars?”

Ann needs an ethics check-up. There’s nothing funny about lying in a setting where many will believe you, whether the liar is a comedian or not. Nor was the quote humorous. Bremer was doing exactly what the unethical hoax news sites do when they deliberately publish fake news in a style and manner designed to fool people into believing it.

I guess we can’t assume that what Ann states as fact is true either. It might be “satire.” Continue reading

Cheerleader Ethics: Nice Cheerleaders Don’t Say “Fuck,” But They Have A Right To Say It When They Aren’t Cheerleading

cheerleaders

Well, this in encouraging. Another court has slapped down a school’s attempt to punish a student for what she wrote online in a personal social media  account. Ethics Alarms has protested the abuse of authority this increasingly common practice represents for many years—I don’t have the time right now to track all the posts down, but I will, and add a link to them here.

U.S. District Judge A. Richard Caputo ruled that the Mahanoy Area School District (In Pennsylvania) violated a student’s First Amendment rights when it kicked her off the junior varsity squad for writing “fuck” repeatedly in a Snapchat post. Do you use that mouth to cheer with, honey?

The teen made the vulgar post on a weekend in May, 2017, off school grounds. It pictured her and a friend holding up their middle fingers with the cogent text, “fuck school fuck softball fuck cheer fuck everything.” She was dressed in street clothes, not her cheerleading uniform, with no pom-pons.  I don’t know how schools got the idea that they could control every aspect of a student’s life and speech to this extent, but too many try. And too many get away with it. Continue reading

Now THIS Is A Frivolous Lawsuit!

Sounds noble in theory, but it doesn’t always work when the one saying “no” is a judge.

Lawyers and the public mean different things when they call a lawsuit “frivolous.” The public and the news media mean that the suit is silly, desperate, based on a crazy theory or unlikely to succeed. Lawyers, however, know that suits that seem  silly, desperate, based on a crazy theory or unlikely to succeed sometimes win. Sometimes, they even change the law for the better. ABA Rule 3.1 explains,

Rule 3.1: Meritorious Claims & Contentions

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law….

Comment:The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. What is required of lawyers, however, is that they inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good faith arguments in support of their clients’ positions. Such action is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail. The action is frivolous, however, if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.

The guy currently  suing me for defamation, for example, hasn’t quite crossed the “frivolous” line, though he is arguing that what is clearly opinion is an assertion of fact, contrary to all existing jurisprudence. His appeal, however, while batty, does make an argument that I assume in in good faith, that a Supreme Court case supports his definition of libel. It doesn’t, but he has the right to make an argument in the hope that some judge or appellate panel will agree. Of course, he is also not a lawyer, so he can’t be held responsible for violating legal ethics.

This guy can be, however: Continue reading