Same-Sex Marriage, The Sixth Circuit, and the Supreme Court

[Note: This was submitted to the Lexington Herald Leader, but not published.]

The Supreme Court will hear oral arguments in the cases dealing with state restrictions on same sex marriage on April 28, and will most likely issue a ruling by the end of the term in June. It’s widely assumed that they’ll rule that the bans on same-sex marriage are unconstitutional, and hold that people have a constitutional right to marry whoever they please.

Four U.S. Circuit Courts have found these bans unconstitutional. One, the Sixth Circuit which covers Kentucky, has upheld their constitutionality. Unfortunately the Herald-Leader seems to imply that there’s a chance the Supreme Court will side with the Sixth Circuit. That is highly unlikely.
The reason is that the Sixth Circuit ruled on a technicality and never addressed the substance of the issue. The Sixth Circuit relied on a 1972 Supreme Court case called Baker v. Nelson, which was a one sentence decision holding that the issue of same-sex marriage didn’t raise a federal question. Because of this scant precedent, the Sixth Circuit said it didn’t have the authority to address the issue. The problem is that Congress made same-sex marriage a federal issue when it enacted the Defense of Marriage Act (DOMA) in 1996, and the Supreme Court tacitly overturned Baker when it struck down DOMA in 2013.

The four other Federal Appeals Courts that struck down bans on same-sex marriage did so with lengthy rulings that addressed, and rejected, most of the arguments in support of the bans. Every court, including the four Circuit courts and dozens of District Courts, that has found the bans unconstitutional have applied the same reasoning. Such bans violate the Due Process clause of the Fifth Amendment, which states that “no person shall … be deprived of … liberty … without due process of law,” and the Equal Protection clause of the Fourteenth Amendment, which says that no State shall “deny to any person … equal protection of the laws.”

It’s a simple and compelling argument. If the state allows one group of people to marry, the equal protection clause says that they have to allow all groups to marry. However, the Due Process clause says that the government can deny rights to certain groups with “due process of law.” If the right involved is a fundamental right then the state must have a compelling reason and any restriction must be narrowly tailored to achieve the state’s compelling purpose.

Opponents of gay marriage say that states have a compelling interest in protecting families, children, and “traditional marriage.” The Fourth, Seventh, Ninth, and Tenth Circuits all considered these arguments and found them wanting.

The Seventh Circuit focused on the idea of “traditional marriage” and found that tradition was not a compelling justification for denying people their rights. The Ninth Circuit analyzed the argument that marriage is about procreation, and found this argument unpersuasive because, in part, many marriages don’t produce children, and many children are born outside of marriage. The Eleventh Circuit analyzed the question of child rearing and found no compelling difference between opposite-sex and same-sex parents. The Fourth Circuit compared the restrictions on same-sex marriage to the odious restrictions on interracial marriage that were struck down in the 1960’s. The same specious arguments were used then, and are equally invalid now. Each of these decisions relies on lengthy historical and legal analysis, and copious and detailed factual studies.

So as the Supreme Court takes up the issue of same-sex marriage it will ignore the Sixth Circuit’s ruling as irrelevant. The Court will then consider the substance of the underlying Due Process and Equal Protection issues, and will rely on the detailed and thoughtful analysis of the other four Circuit Courts. It seems likely that the Supreme Court will decide, as has every court that has honestly evaluated these issues, that there is no compelling justification for banning same-sex marriage.

Hayek In the Rear View Mirror

Friedrich Hayek is one of the patron saints of modern libertarianism. He wrote a book in 1944, called The Road to Serfdom, that predicted that western societies were going to fall sway to totalitarianism. He said that any level of economic planning would not work and so would require greater and greater government control, until inevitably, the government would completely take over.

It is a theory that is profoundly wrong, as even the most casual observation of the events since World War Two show, but one that still drives a great deal of modern conservative politics. Both Rand Paul and Paul Ryan are fans of Hayek, and both have stated that any government involvement in the economy is doomed to fail.

I analyzed this topic from the book in some detail in a recent article in Alternet. My title was Hayek in the Rear View Mirror, but they changed it to: Big Economic Theory Underpinning Libertarian Economics Is Total Baloney. Their title is more to the point, but mine was more poetic.

Making Sense of Ferguson

[This was recently published on CounterPunch under the title “The Police and the American Mind.”  My Original title was “The Thin Blue Line.”]

The only way to really make sense of the events in Ferguson, Missouri, and Staten Island, New York, is to understand two concepts. The first is that police believe themselves to be the thin blue line that stands between civilization and chaos. And the second is the “broken windows” theory of policing.

The “Thin Blue Line” is a common colloquialism for the police, but it’s more than that. It’s the way that the police, and many people in society, particularly conservatives, view law enforcement. Law enforcement is all that stands between civilization and chaos, the police are the Thin Blue Line that protects society from anarchy.

The “broken windows” theory was developed in the early 1980s by criminologists James Q. Wilson and George L. Kelling, who found that crime exists in every human society, but crime rates are higher where there are other signs of social disorder. In areas where there are broken windows, for example, there’s a sense that no one cares about the physical infrastructure of society, and that lack of concern trickles up. Vandals break more windows, then maybe break into the building, possibly even burn it down. These little crimes go unreported and unpunished, and so more crimes occur. The result is that there is not only more petty crime in dilapidated areas, but more serious crime. So Wilson and Kelling said that society should spend more time on the small stuff. Fix the windows, scatter the panhandlers, arrest the turnstile jumpers. Deal with the low-level crimes and the more serious crimes will come down.

The police in New York City began to take this approach in the mid-1980s. They went after graffiti artists, panhandlers, toll jumpers and the like, and instituted a zero-tolerance approach to most petty crime. As a result, crime came down, and in some cases significantly. Times Square went from a mecca of porn theaters, prostitutes and drug dealers to a tourist haven. Based on this success, the broken-windows concept spread across the country. Police began to see low-level crime as the first sign of anarchy, a potential the crack in the dike that protects civilization from a flood of crime. Petty criminals aren’t just sad sacks filching cigarettes, they’re the advance guard of social decay.

You can see this theory at work when you watch the video of five police officers confronting, taking down and killing Eric Garner. To those of us watching the video, Garner’s only crime was selling loose cigarettes. But to the police he wasn’t just some petty criminal, he was a broken window, the first sign of anarchy. And anarchy must be confronted with a phalanx of officers.

Read Officer Darren Wilson’s grand jury testimony about his confrontation with Michael Brown: Brown wasn’t some kid who may have snatched a handful of cigars from a convenience store. He was a “demon.” And Officer Wilson knew in his bones that he was all that stood between that “demon” and civilized society. And so he acted accordingly.

The view of the police as the thin blue line between chaos and civilization permeates our society. Flip on your TV and watch “NCIS,” “Bones,” “Criminal Minds,” or reruns of “Law and Order.” What these shows all have in common (beyond wooden acting and a high body count) is the view-point that law enforcement is all that stands between civilized society and a wave of crime.

Local news is dominated by fires, car wrecks and crimes. And in virtually every news story there are lots of flashing lights and at least a few police officers trying to repair one of the cracks in society.

We have all internalized this idea. So have the citizens who sit on grand juries. They know that the police are the thin blue line. And even if they don’t think about it in those terms, a district attorney or county prosecutor is there to remind them. The prosecutor may say something like: “Those officers put their lives on the line every day protecting you and me. They need tools to deal with dangerous situations and dangerous people. And they need to be afforded the discretion to deal with those dangerous situations.” So the grand jury grants them that discretion. They afford them the leeway to protect society, which means that they weigh the situation, the deadly encounter, in favor of the police officer and against a potentially dangerous person. The result is that Officer Wilson in Missouri, and Officer Daniel Panteleo in Staten Island, New York, are not charged.

Many people see this and say that it is racism. And so the thin blue line intersects racial lines. There is no denying that black Americans are arrested, prosecuted and incarcerated at a much higher rate than whites. Blacks make up about 12 percent of the population, but account for roughly 37 percent of the prison population. So on first blush it appears that blacks may be more prone to crime than whites. But if you cut the numbers differently and correct for wealth and poverty, the numbers equalize somewhat. This plays out across all crimes, but is seen most clearly with drug crimes. While five times as many whites use drugs as blacks, according to a NAACP report, African Americans are incarcerated at ten times the rate as whites. And while the violent crime rate is much higher overall for blacks than whites, it is similar for blacks and whites of similar socio-economic levels. So crime is largely a product of poverty not race. This leads back to the broken-windows theory. Poor neighborhoods are often dilapidated, and there is a good deal of petty crime. And so while blacks are no more likely to use drugs or commit crimes that whites, they are more likely to live in poor neighborhoods, and so are treated based on the broken-windows theory and punished harshly.

The result is the perception, based on arrest and incarceration rates, that blacks commit more crimes than whites. Police deal with this on a regular basis. They see the broken windows and the petty crime of poor black neighborhoods, they know the “broken-windows” theory of criminology, and they put two and two together. So when they see a black guy on the street potentially engaged in a petty crime, they don’t really see Michael Brown, they see a representative from the world of broken windows. They think they’re being even handed, but their vision is obscured by facile theories about broken windows and clichés about thin blue lines.

And so when the police, and conservative commentators, see people protesting events in Ferguson or Staten Island, they see a number of things. First, they see the police as being unfairly accused of racism. But more importantly they see a direct challenge to how the police do their job, about how they protect civil society. The protestors are questioning how the police man the ramparts, how they patrol streets fraught with chaos. The police, and their supporters, don’t see protestors raising legitimate concerns about how to protect society; they see people who are naïve to the dangers that face society. They see the protestors as deluded about the steps necessary to keep anarchy at bay, and trying to fray the fabric of the thin blue line. And so conservative commentators respond with outrage, and the police respond in riot gear.

Two-year-old Shoots Hole in NRA Theory

On December 30, 2014, in Hayden, Idaho a two year old shot and killed his mother. The woman was shopping at Wal-Mart, with the boy and her purse in the shopping cart. She had a license for a concealed handgun, and the gun was in her purse in a special zippered pouch for a concealed weapon. Her son reached into the purse, and the gun fired, killing the woman. Presumably they boy was playing, and just thought it was a toy, or maybe it was a tragic accident and the child inadvertently hit or squeezed the trigger. The news story is not clear on the details. [Here’s the Story from Fox News .] But ….

According to a favorite gun advocate slogan, “Guns don’t kill people, people kill people.” The idea behind the slogan is that murder is intentional, and if someone is intent on killing they will do it with whatever tool is available. The slogan strongly implies that every killing is intentional, and if a gun is not available the killer will use something else. So, according to this theory, if that toddler in Idaho hadn’t used a gun he would have killed his mother with something else. Perhaps he would have toddled to the auto supply section and grab a tire iron to bash in his mother’s brains. But clearly that idea is as absurd as it is sick. The child obviously had no intent to kill his mother (and will undoubtedly be traumatized by it for the rest of his life). Had the gun not been in his mother’s purse he may have played with her car keys or cell phone, and she would be alive today. So clearly it was the gun that killed the woman. The gun killed the woman, not the child.

Every year roughly 30,000 Americans are killed by guns. (See, http://www.gunpolicy.org/firearms/region/united-states) Of that, roughly 10,000 are murdered, 19,000 commit suicide, and between 500 and 1,000 are killed accidentally. [The Wikipedia Entry for Gun Violence in the United States has a good overview of these numbers.] In 2011, the last year for which data is available, 32,163 people were killed by guns. Of that 19,766 committed suicide, 11,101 were murdered, and 851 were killed by accidental discharge of a firearm. [The CDC Data is here, in Table 2 ] There is no way to know about the 10,000 murders, and it is likely that if the murderer did not have a gun he would have used something else. (I say “he” because men commit 95% of all homicides. I apologize to the female murderers out there for my sexist language.) But it is worth noting that there were 4,852 murders by other means in the United States in 2011, so some would have been committed by other means. But just as clearly it is not true of those 500 to 1000 “accidental” gun. The two year old in Hayden Idaho had no intent to kill his mother, nor did the three year old in Arizona who shot his 18 month old brother, or the three year old in Oklahoma who killed his mother. Just Google “toddler shoots…” parent or sibling and you’ll get dozens of hits of small children inadvertently killing a family member. (It’s really disconcerting.) There is no way to know what percentage of the roughly 500 to 1000 accidental deaths each year are kids killing a parent, but clearly it happens with some frequency. Other leading causes of “accidental” gun deaths are people cleaning guns, and showing off with guns. But in every one of those accidental cases there was no intent to kill.

That means that between 5% and 10% of all non-suicide gun deaths each year are accidental, with no intent to kill. And this means that in 5% to 10% of all non-suicide gun deaths each year it was the gun and not the person, that did the killing. So guns do kill people.

The NRA and gun rights advocates may not care about logic, and they certainly don’t care about the roughly 1000 people killed accidentally by guns each year. They believe that their rights, or rather their warped idea about those rights, are more important than the lives of a thousand people a year. Those people are merely collateral damage, statistical blips, background noise lost in the chatter of silly slogans.

And Therein Lies the Problem

For evidence that conservatives live in a fantasy land, look no further than the current conflict over teaching American history in suburban Denver.

Recently a Republican school board member in a suburban Denver county offered a proposal for a panel to review the teaching of American History, and called for instructional material that presented “positive aspects [of American history that] promote citizenship, patriotism … respect for authority and respect for individual rights. See, Denver Post, Jefferson School Board.  But the proposal also said that the materials should not “encourage or condone civil disorder, social strife or disregard of the law.” [http://www.denverpost.com/news/ci_26601519/jeffco-school-board-curriculum-committee-idea-latest-divisive ]

The Jefferson County School Board member who presented that proposal is named Julie Williams, and is a member of a prominent and politically active conservative Republican family. [http://www.denverpost.com/news/ci_26620327/jefferson-county-public-schools-faces-crisis-over-school]

Others have written a great deal about the dangers of white washing history, and that is certainly true. But the real problem here is the glaring internal contradiction in these particular conservative goals. Their two goals – (1) teach patriotism, which undoubtedly in their minds includes reverence for the founders, and (2) discourage teaching anything that would promote civil strife, social disorder or disregard for the law – are mutually contradictory. The reason is that this nation’s founders were revolutionaries. They emphatically disregarded the law, they actively sought social strive, and encouraged civil disorder. So a lesson in patriotism, a lesson about the founders, will be a lesson in civil, social, and political disobedience.

The inescapable conclusion is that Ms. Williams, and the conservative school board members and members of the public who support her, know absolutely nothing about American Revolutionary War history. I suspect that they know next to nothing about any other era in American history, but I don’t have the evidence to support that. But I do have ample evidence to support my claim that she, and many conservatives who think like her, know nothing of American colonial, revolutionary, and constitutional history. And yet they claim deep and abiding admiration for that history.

This is but one of the many contradictions inherent in the conservative belief system. There are many others. They claim reverence for the free market and equal abhorrence for the American media and culture, but the culture is the purest product of a free market. They revere capitalism and venerate traditional families, but it is capitalism that has destroyed the traditional family. The worship the modern economy and loath science, but the modern American economy is a product of science. The list goes on and on: that which they most revere has produces, time and time again, that which they most loath. No wonder they are angry and troubled. And therein lies the problem with American politics.

Stand Your Ground

According to a newly released report by a commission of the American Bar Association, stand your ground laws hinder law enforcement, and states that have enacted stand your ground laws have seen an increase in homicide.

Here’s a link to the ABA Press Release: States with stand-your-ground laws have seen an increase in homicides, reports task force

Here’s a link to the full report: ABA Stand Your Ground Report

I will weigh in after I have had a chance to read the full report, and not just the press commentary on the report.

Well Played

Thoughts on the Marriage Equality Rulings

I’ve been hearing interesting tidbits from the many Federal Court cases around the nation striking down various state restrictions on Gay Marriage. Recently a Federal Court in Wisconsin struck down that state’s ban on gay marriage, and in the opinion the judge addressed the argument that the state should have the right to support “traditional marriage.” Polygamy, the Judge noted, was once considered a traditional form of marriage. When the 10th Circuit Court of Appeals struck down Utah’s ban on gay marriage it spent some time discussing the burden on the children of gay parents who are unable to marry.

Federal courts across the country are consistently striking down bans on gay marriage, and the rulings have contained detailed Constitutional arguments. Issues of equal protection under the Fifth and Fourteenth Amendments have been analyzed historically, legally, theologically, and philosophically. But, as noted, a wide variety of other issues have been addressed. It seems like nearly every conceivable argument against allowing gays to marry has been analyzed and rejected.

It is as if the courts are making some sort of coordinated effort to address every possible legal, political, or practical argument against gay marriage. If one court misses an issue, or a new argument is raised in the media or the courts, another court adds it to its ruling. Are the courts working together, colluding somehow?

It may seem like it, but the reality is that it’s the litigants that are engaged in the broad and comprehensive strategy. Here’s a little secret that most people don’t know. Judges don’t always write the Court’s opinions. They often crib their rulings from the legal briefs of the winning party.

Here’s a little bit of information on how a case works. Before trial both sides write a joint trial brief setting out the facts that are agreed and the law that they agree apply in the case. In these gay marriage cases the controlling law is obviously the Fifth and Fourteenth Amendments, and whatever state law is at issue. Many of the basic facts in the case will also be agreed upon, such as the date the various restrictions were enacted. Both sides also submit trial briefs setting out their interpretation of how the law should apply in the case. The judge, or more commonly the judge’s law clerks, will typically do independent research to verify the law cited by the litigants, but it is not uncommon for the judge to adopt the legal reasoning and arguments of the winning side. The judge is obviously convinced by their argument, so rather than spending the time to write lengthy ruling, the court often cuts and pasts arguments from the winning party. So the arguments that the judge discusses in the ruling are very often the arguments raised by the litigants.

So the fact that courts have addressed a wide variety of different arguments is evidence of a well-developed and highly coordinated legal strategy by the groups supporting gay marriage, including the ACLU, and an organization called Freedom to Marry. These organizations are undoubtedly addressing every possible argument in their trial briefs, and setting out detail legal and historical analysis of every possible issue. If they miss an issue in one case, or if a judge gives short shrift to an issue in one case, or if a new argument gets raised in one case, the issue gets briefed in detail in every subsequent case.

So, by the time the issue of marriage equality reaches the Supreme Court there will be detailed analysis and rulings from a multitude of jurisdictions. The Supreme Court is certainly not bound by the rulings of lower courts, but the Court does have to give serious consideration to these rulings. And it will find in difficult to overturn well-reasoned rulings with detailed legal and historical analysis. Well played.

Here’s a link to a good list of marriage equality cases: http://www.freedomtomarry.org/litigation

Here’s are a couple of recent court rulings, and some of the particular topics addressed by the court.

On March 21, 2014 a U.S. District Court in Michigan struck down that states ban on gay marriage as a violation of the 14th Amendment. The court spent some time addressing a study cited by the opponents of gay marriage by an anti-gay researcher named Mark Regnerus. The judge said that the study was flawed and “not worthy of serious consideration.”

On May 19, 2014 the U.S. District Court in Oregon held that Oregon’s constitutional amendment and statutes banning the freedom to marry violated the Equal Protection Clause of the 14th Amendment to the Constitution. The Judge in the case, Michael McShane said that the case is not merely about civil rights and equality under the law, but about love, devotion and family.

Just a few days later a U.S. District Court in Pennsylvania struck down that state’s ban on gay marriage. The judge in that cases compared the fight over marriage equality to the fight over education equality (and equality in general) embodied in the Supreme Court’s Brown v. Board of Education decision.

Doom … Doom I Say

Rand Paul

I’ve been listening to conservatives cry doom – doom, we’re all doomed – like a deranged Ghost from the “Christmas Carol” for most of my adult life. Conservatives have been saying for as long as I can remember that our society, or culture, our economy, our nation, all are doomed.

Carter must be defeated, or all is doom. 1980 was the first year I was able to vote for President, so I remember that pretty well. And since the election of Reagan in 1980 conservatives have cried doom … doom … all is doom. If liberals and liberal policies are not stopped, the nation, the economy, society, all of it is doomed. If Clinton is elected, we’re doomed. If Obama is elected, we’re doomed.

In the 1980’s we were doomed to defeat by the Japanese. In the 90’s we were doomed by rising China, and now were doomed by a mature China and the other rising BRIC countries.

But what’s happened since 1980?

Think about the modern economy, and what technologies dominate the modern world: computers, smart phones, the internet. Guess what: all were created in the United States (and to some degree in other supposedly ossified, sissified, corrupt Western nations – important advances in smart phone technology came out of Canada and Norway.) The modern economy was made in the United States. Virtually every modern advance was created in a nation that conservatives said was rotten and decaying.

The cries of doom over the last 35 years are as constant as night following day. Every few years a new doomsayer comes along. In 2010 it was the Tea Party, and their most prominent standard bearer, Rand Paul. Now there’s a new voice in the Republican Party, David Brat, the “economic” professor who defeated Republican Majority Leader Eric Cantor in Virginia. The singer may be different, but they’re singing the same old song: if liberals aren’t stopped, we’re all doomed.

It’s comical because it’s not only consistently wrong, but monumentally wrong.

It’s All Jefferson’s Fault

[Originally Published in the Lexington Herald-Leader, Feb 23, 2004]

The Massachusetts Supreme Court recently ruled that same-sex couples have the right to marry. The response from President Bush and most conservatives was predictable: This was the work of “activist judges.”

But the real villains aren’t judicial activists, they are radicals named Thomas Jefferson and Abraham Lincoln. In the Declaration of Independence, Jefferson wrote: “We hold these truths to be self evident: That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.”

The idea of equality and individual rights wasn’t Jefferson’s — philosophers had discussed it for years — but he was the first person radical enough to propose the idea as the foundation of a government. Many who joined Jefferson in signing the Declaration understood the implication of his idea. They knew that equality, if followed to its logical conclusion, would certainly end slavery and probably many other so-called traditions.

So, while Jefferson was away, serving as ambassador to France, they drafted the Constitution without his broad vision of equality. They ignored Jefferson’s ideal and granted rights only to white males. Many people were outraged by this, particularly by the idea that slaves were only three-fifths human, and set about to change things. But change comes slowly, and it took nearly 80 years to happen.

One of the men outraged by the hypocrisy of a nation that was founded on the principal of equality but refused to provide equality in its laws was Abraham Lincoln. Lincoln, like politicians today, struggled with how to resolve the competing interests of equality and tradition. He believed that the principle of equality was a worthy goal, but he worried about the incredible social disruption that would likely occur if laws were changed to implement that goal. Many Southerners did not trust Lincoln to craft the proper balance between these competing interests, so when he was elected president, most Southern states seceded.

Lincoln initially focused on fighting the war, but by 1862, as Union fortunes improved, he signed the Emancipation Proclamation, freeing many slaves. Then, after the Union Army successfully repelled a Southern invasion at Gettysburg, Lincoln noted that the founders created a new nation “conceived in liberty, and dedicated to the proposition that all men are created equal.” He said the purpose of the Civil War was to ensure that such a nation “shall not perish from the Earth.”

Due largely to Lincoln’s eloquence at Gettysburg and his tragic assassination, the Constitution was amended to incorporate Jefferson’s idea of equality. Under the Constitution, equality doesn’t mean that everyone is the same, but it does mean that everyone must be treated the same. The 14th Amendment says that the government shall not “deny to any person within its jurisdiction the equal protection of the laws.”

Lincoln taught us that Jefferson’s phrase “all men” did not just mean white men, and subsequent history — suffrage and civil rights — shows that “men” means “mankind” and includes women. So if our nation is founded on the principal that all people should be treated equally, how can we justify treating some people differently when it comes to property, inheritance or parentage rights? The inescapable answer is that, according to the Constitution and its history, we can’t.

That’s all that the Massachusetts Supreme Court said. If that is activist or even radical, we have no one to blame but Jefferson and Lincoln.

The Fallacy of Federalism

Conservatives frequently say that political power, and the development of political policies, should be devolved to the lowest level of government since that is closest to the people. This is one key aspect of “federalism,” idea seems simple enough. Local officials know their constituents. State legislators and city council members live and work among the people they represent, and so they are more likely to know their constituents and therefore more likely to actually know what the public wants. As a result they should be more attuned with local issues and problems, and more likely to be able to fashion a local solution based on the needs of the people.

The flip side of this is the idea that citizens are much more directly impacted by local issues and so are more aware of them, and much more likely to know more about the problems and possible solutions. And because they are more aware, they are much more likely to interact with their elected officials in a meaningful way. The result is that they are much more likely to know their local representatives than their national representatives, and so make more informed choices when voting.

But how true is that? Are people more involved locally? Do they know, and interact, with their state and local officials? One way to measure that is to look at the election of national, state and local officials. If voting trends and familiarity with elected officials are any indication, there is far less democracy at the local level than at the national level. Presidential elections typically get about 55% – 60% of the vote. (Good news, voting has been inching up lately, in part, I believe, due to increased political discussion on talk radio and coverage on cable news, and also due to the effect of social media.) In 2012, approximately 72% of registered voters actual cast ballots, but because not all of those who are eligible to vote are registered, the actually voting rate for potentially eligible voters was 54%.

In off-year national elections, for Senators and Representatives, the turn-out number is typically closer to 40%. In 2010 for example, voter turnout was 41% nationwide. In state specific elections voter turnout averages around 25%. In the 2011 Kentucky election in which all “Constitutional Officers” (meaning Governor, Secretary of State, etc.), turn-out was just over 28%. In the hotly contested Governor’s race in Virginia in 2013, turnout was about 37%. In local elections, for example for mayor, or for things like bond issues, voter turn-out is typically closer to 10%. In the recent city election in Houston (for mayor, city council, a ballot measure asking whether or not to tear down the Astrodome) voter turnout was about 13 percent.
By the measure of voting, local elections have far lower turnout than national elections: the higher the office on the ballot the greater the turnout. If the number of people at the polls are taken as a measure of democracy and citizen participation, then state and local elections are far less democratic than national elections. Based on these results, it is almost laughable to say that state and local elections are more democratic than national elections. It is laughable to suggest that people are more involved.

[Much of this data is from the George Mason University’s United States Election Project, available at http://elections.gmu.edu/index.html. See also, Information Please at http://www.infoplease.com/ipa/A0781453.html. And NonProfit Vote at www.nonprofitvote.org]

Most people are also much less familiar with their local elected officials than their national officials. In public opinion surveys, a surprisingly low number of people know the names of their elected representatives. While most people know the President, the numbers drop quickly from there. Only about 65% can name their state’s governor, and only about half can name their United States Senator, and barely 25% can name both Senators. [http://www.aei.org/article/society-and-culture/america-already-is-europe/ ]

I suspect less than half can name their U.S. Representative and far fewer can name their state senator or representative. In my highly unscientific poll of my friends and neighbors, almost none know the name of their state senator or representatives. Fewer still can name their council members, though most know who the Mayor is. This despite the fact that most of my friends are highly politically engaged. And don’t even get me started on state or local judges.

So how is government closer to the people when most people have no idea who their state or local representatives are? How is it more democratic when fewer people actually participate? And what does this say about this particular conservative explanation of federalism? It would be laughable if it wasn’t so serious.
[See, http://www.people-press.org/topics/public-knowledge/. http://www.people-press.org/2007/04/15/public-knowledge-of-current-affairs-little-changed-by-news-and-information-revolutions/ ]

There is also far less news coverage of state and local political issues. The local media reports on fires and robberies, but very little on governmental affairs. There is certainly some political reporting, but it is nowhere near the level as on the national stage. My local news paper (the Lexington Herald-Leader) reports on major issues when the legislature is in session, but it is rarely front page news. This is in stark contrast to the media interest in events in Washington DC. There are literally dozens of major news outlets watching every aspect of Congress and the Federal government, but only a few watching state government. And except for the big issues, almost none at the local level.

2014 is an election year for both state and national offices, but in Kentucky at least, most of the political news involves the U.S. Senate race between incumbent Republican Senator, and Minority Leader, Mitch McConnell, and the Democratic challenger, current Kentucky Secretary of State Alisson Lundregan Grims. It is certainly a big race, but it seems to take almost all of the ink away from most every other race.

This lack of knowledge and participation in the political process at the local level is not only less democratic, it leaves open a far greater possibility for undue influence. Take a local bond issue, for example. If less than 10% of the voting public participates, a group might be able to sway the results with a few hundred extra votes. And if prosecutions for political malfeasance is any indication, there is far more corruption at the local or state level than at the national level.

Because of the lack of knowledge and participation in state and local issues, a small group of influential people can have enormous sway over local elected officials and over local elections. That is one of the reasons that many activist groups have shifted their tactics to the state level. There are a number of conservative groups, like ALEC and the NRA, that are pushing many bills at the state level because they know that they have more influence, and are far less susceptible to opposition from an informed electorate. In many cases the public is surprised when certain bills get passed.

The reality is that if you want to influence legislation it is much easier to do it at the local level than at the national level. Most state legislators and local council members are part time politicians, so they have little time to invest in learning about complex issues. They generally have few staff members, and are generally poorly paid for the level of responsibility they bear. The end result is that they are much easier to influence than national level politicians.

So, basically, the conservative argument in favor of this aspect of federalism is simply false. And this makes me wonder whether their calls for “federalism” are really about democracy, or more about influence.