A recurring theme in the on-going and going and going proceedings on the Minnesota Senate Seat has been the attempts of the Coleman legal theme to raise the bogeyman of Bush v. Gore and the Equal Protection Clause. Now that the panel has started to make rulings on what it will take for an absentee ballot to be valid, the wailing and gnashing of teeth from the Coleman campaign has increased as they attempt to convince the panel that there is a real equal protection issue in this case that requires a change to those rulings.
In response, the Franken campaign today filed a memorandum asking the Court to reject this claim once and for all so that the trial can focus on the issues of which votes are valid.
Now putting aside all of the legal mumbo jumbo, equal protection law is, at its heart, relatively simple. The goal is to make sure that similar things are treated similarly and different things are treated differently. For the most part, the law allows governments the ability to define what is the same and what is different. However, when the categories being used are legally disfavored (e.g. race and sex) or implicate important rights, the courts tend to look at the categories a little bit closer to make sure that they are justified.
Now the problem in most equal protection case is the defining of the categories. In the current senate contests, there are lots of potential categories. The following is a list of (some) of the categories. I am sure that others can probably add additional subcategories that might be meaningful.
1) Voters who cast valid ballots that were counted during the initial canvass.
2) Voters who cast invalid ballots that were erroneously counted during the inital canvass.
3) Voters who cast valid ballots that were rejected during the initial canvass but counted during the recount.
4) Voters who cast invalid ballots that were rejected during the initial canvass but erroneously counted during the recount.
5) Voters who cast valid ballots that were rejected during the initial canvass and during the recount.
6) Voters who cast invalid ballots that were rejected during the initial canvass and during the recount but that resemble the ballots that were erroneously counted during the initial canvass and/or the recount.
7) Voters who cast invalid ballots that were rejected during the initial canvass and during the recount but do not resemble the ballots that were erroneously counted during the initial canvass and/or the recount.
The defining of these categories is the most important part of this case. The Coleman team wants to limit the universe to the second, fourth, and sixth categories. It seems logical to argue that these ballots are similar and should be treated the same. From here, the Coleman team makes the logical leap of saying that, since the ballots in category 2 and 4 were counted, the ballots in category 6 should also be counted. The problem with that leap is that it ignores the other four categores and the two definitional terms of "invalid" and "erroneous" which are crucial to the fuller picture.
Yes, these three categories should be treated the same, but so should category 7 (which Coleman wants to ignore for this analysis). Legally, the ballots in category 6 and category 7 are equally invalid under Minnesota law. Equally as important, all four categories (2, 4, 5, and 7) are different from the ballots in categoreies 1, 3, and 5. The ballots in those three categories of valid ballots (which Coleman also wants to ignore for this analysis) should be treated differently from the four categories of invalid ballots.
Now due to the way that counting has occurred (including Coleman's dismissal of any challenges to ballots in category 4), it is impossible to separate out the invalid votes cast by those in categories 2 and 4 from the votes in categories 1, 3, and 5. That failure is a violation of the equal protection rights of the voters in categories 1, 3, and 5. However, it would be a further violation of those rights to count the ballots in categories 6 and/or 7.
Furthermore, because the ballots in categories 6 and/or 7 are legally different from the ballots in category 1, 3, and 5, they do not have an equal protection right to be treated the same as those ballots. In other words, it is not a violation of the equal protection rights of those voters that did not cast valid ballots to refuse to count their ballots. The violation of their equal protection rights, if any, is the same as the violation of the equal protection rights of the voters who cast valid ballots -- namely that some invalid ballots are being counted. That violation is not cured by counting some additional invalid votes. After all if a mistake in Stearns County allowed a voter who failed to comply with one requirement (say the lack of a witness) to count why shouldn't a voter in Henneping county who missed a different requirement (say the failure to register) also be allowed to count.
Hopefully, we will get an order on this issue shortly and soon thereafter the panel will force the Coleman legal team to get to the point.
Republicans are for the stimulus after they're against it.[...]
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It must be great news for the Republicans! Rep. Roy Blunt, R-Mo., the former House minority whip, will announce Thursday in St. Louis that he is running for the seat that GOP Sen. Christopher (Kit) Bond is vacating, sources told CongressDaily. After[...]
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BUZZFLASH MEDIA PUTZ OF THE WEEK
February 19, 2009
New York Post
For reporting that is an embarrassment to the profession of journalism, and for being beholden to corporate paymasters rather than the citizens of America.
Political cartoons are meant to be expressions that aren't for the tame. A political cartoon that is too nice probably isn't doing its job.
But there are certain lines where political cartoons should not go, and the New York Post crossed that line on Wednesday.
The cartoon is of two policemen standing over a chimp lying on the ground shot to death. The cop who isn't holding the gun says to the cop holding the gun, "They'll have to find someone else to write the next stimulus bill."
We're told that the theme is related to an incident in Stamford, Connecticut this week where a woman was attacked by a popular pet chimpanzee. Ultimately, a cop shot and killed the chimp.
Even if you were aware of the chimp story (and that's a stretch), you still have to ask "and this relates to the stimulus package how?"
The disturbing part of the Sean Delonas cartoon is that it can be seen as degrading on multiple levels. The cartoon could be racist, comparing the first African-American president of the United States to an ape, long a favorite image among racists. Or it could be political -- that an ape wrote the legislation. Or writing a stimulus package correlates to a likelihood to attack someone.
The cartoon isn't funny or poignant and doesn't even has a clear message. It's offensive on multiple levels, depending on one's vantage point -- without redeeming value.
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With all the talk these past few weeks about the Fairness Doctrine and the latest debate on Broadband use for rural areas, I was reminded back when the FCC actually meant something - an agency whose job it was to protect the interest of the American People and the airwaves from the lunatic fringe, the special interests and the misguided. Listening this morning to Morning Edition and an interview with former FCC economist Michael Katz, he managed to bring home in big bright letters the concept of what we have lost over these years of deregulation, incompetence and ignorant hubris, I thought back when Newton Minow spoke to a gathering of National Association of Broadcasters in May 9, 1961.
I'm wondering if it's too late . . . . .
Your industry possesses the most powerful voice in America. It has an inescapable duty to make that voice ring with intelligence and with leadership. In a few years, this exciting industry has grown from a novelty to an instrument of overwhelming impact on the American people. It should be making ready for the kind of leadership that newspapers and magazines assumed years ago, to make our people aware of their world.
Ours has been called the jet age, the atomic age, the space age. It is also, I submit, the television age. And just as history will decide whether the leaders of today's world employed the atom to destroy the world or rebuild it for mankind's benefit, so will history decide whether today's broadcasters employed their powerful voice to enrich the people or to debase them.
If I seem today to address myself chiefly to the problems of television, I don't want any of you radio broadcasters to think that we've gone to sleep at your switch. We haven't. We still listen. But in recent years most of the controversies and cross-currents in broadcast programming have swirled around television. And so my subject today is the television industry and the public interest.
Like everybody, I wear more than one hat. I am the chairman of the FCC. But I am also a television viewer and the husband and father of other television viewers. I have seen a great many television programs that seemed to me eminently worthwhile and I am not talking about the much bemoaned good old days of "Playhouse 90" and "Studio One."
I'm talking about this past season. Some were wonderfully entertaining, such as "The Fabulous Fifties," "The Fred Astaire Show," and "The Bing Crosby Special"; some were dramatic and moving, such as Conrad's "Victory" and "Twilight Zone"; some were marvelously informative, such as "The Nation's Future," "CBS Reports," "The Valiant Years." I could list many more -- programs that I am sure everyone here felt enriched his own life and that of his family. When television is good, nothing -- not the theater, not the magazines or newspapers -- nothing is better.
But when television is bad, nothing is worse. I invite each of you to sit down in front of your television set when your station goes on the air and stay there, for a day, without a book, without a magazine, without a newspaper, without a profit and loss sheet or a rating book to distract you. Keep your eyes glued to that set until the station signs off. I can assure you that what you will observe is a vast wasteland.
You will see a procession of game shows, formula comedies about totally unbelievable families, blood and thunder, mayhem, violence, sadism, murder, western bad men, western good men, private eyes, gangsters, more violence, and cartoons. And endlessly commercials -- many screaming, cajoling, and offending. And most of all, boredom. True, you'll see a few things you will enjoy. But they will be very, very few. And if you think I exaggerate, I only ask you to try it.
Is there one person in this room who claims that broadcasting can't do better? Well a glance at next season's proposed programming can give us little heart. Of 73 and 1/2 hours of prime evening time, the networks have tentatively scheduled 59 hours of categories of action-adventure, situation comedy, variety, quiz, and movies. Is there one network president in this room who claims he can't do better? Well, is there at least one network president who believes that the other networks can do better? Gentlemen, your trust accounting with your beneficiaries is long overdue. Never have so few owed so much to so many.
Why is so much of television so bad? I've heard many answers: demands of your advertisers; competition for ever higher ratings; the need always to attract a mass audience; the high cost of television programs; the insatiable appetite for programming material. These are some of the reasons. Unquestionably, these are tough problems not susceptible to easy answers. But I am not convinced that you have tried hard enough to solve them.
I do not accept the idea that the present over-all programming is aimed accurately at the public taste. The ratings tell us only that some people have their television sets turned on and of that number, so many are tuned to one channel and so many to another. They don't tell us what the public might watch if they were offered half-a-dozen additional choices. A rating, at best, is an indication of how many people saw what you gave them. Unfortunately, it does not reveal the depth of the penetration, or the intensity of reaction, and it never reveals what the acceptance would have been if what you gave them had been better -- if all the forces of art and creativity and daring and imagination had been unleashed. I believe in the people's good sense and good taste, and I am not convinced that the people's taste is as low as some of you assume.
My concern with the rating services is not with their accuracy. Perhaps they are accurate. I really don't know. What, then, is wrong with the ratings? It's not been their accuracy -- it's been their use.
Amity Shlaes' mournful The Forgotten Man has become the go to reference for the "New Deal didn't work" contingent. She not only claims that the New Deal programs were ineffective, but that Roosevelt drew inspiration from the oppressive regimes of Mussolini and Stalin to create a kind of American socialist dictatorship in which everyone was miserable and resentful. With a handy collection of one-sided statistics mixed with a selection of sepiatone horrors of life under awful FDR, it's little wonder the The Forgotten Man has become the most quoted tome on the right since the Birch Society's Blue Book.
Last week, Shales work was bisected by history professor Mathew Dallek. Dallek, whose last book was about Ronald Reagan and the growth of the conservative movement, is far from a left winger. He just happens to be someone who has studied history and is disturbed by Shlaes' constant distortions.
Still, nearly eight decades after FDR launched the New Deal, amid possibly the greatest economic emergency since the 1930s, it’s important to understand that the most sophisticated arguments seeking to demolish the New Deal are based on a misreading of the bulk of the historical evidence. ... FDR’s New Deal had its share of failures, setbacks and problems. But to argue that it harmed the American people, "failed abysmally" (Shlaes’ words) to reduce unemployment, and retarded economic growth is to twist the historical evidence beyond all reasonable recognition. Such arguments are forms of revisionism that are misleading, polemical and riddled with distortions of the overwhelming facts at hand about the New Deal’s achievements as well as its real shortcomings.
This week, it was Shlaes' chance to fire back (because like Intelligent Design, the Republican slant on economics and history can never be defeated by facts).
Dallek says: "Shlaes cited unemployment figures that excluded Americans who had New Deal-generated jobs."
This is inaccurate. "The Forgotten Man" and articles after it cite Bureau of Labor Statistics unemployment figures. These include the many permanent jobs created by the New Deal, such as tax collector, Agricultural Department employee and staffer at the Tennessee Valley Authority. "The Forgotten Man" does not include a second set, the part-time make-work jobs of the New Deal relief programs. That is because the Bureau of Labor Statistics data do not, either.
In other words: Dallek is right. Shlaes' non-denial denial is to make an end run around the question and simply cite the source of the statistics. Her numbers leave out almost all the workers employed directly by New Deal programs. Her "make-work jobs" not worth counting would include the people who built the roads, bridges, water plants, parks and other infrastructure, much of which is still in use today. Shlaes is applying the same measure as new GOP Chairman, Michael Steele in saying that government positions are work but not jobs.
Using this set of statistics, Shlaes maintains that "double digit unemployment" prevailed throughout the 1930s. But even if you play on her chosen field, the same numbers show that the unemployment rate fell by 11 points under the first few years of the New Deal. If we have had a similar drop today, we'd have to import more workers. Or you could look at it another way and say that unemployment itself was down by 44% -- which is a rate of change that anyone would mark up as extremely effective stimulus... unless that someone was trying to twist the numbers to make a political case.
The base point from which the New Deal started was very low. So any movement forward looked large.
Now Shlaes retreats to the idea that, because things were so bad at the start of the New Deal, things just had to get better. Except they hadn't been getting better. The Great Depression didn't come on overnight. There had been four years worth of downward motion in the economy to produce that valley where the New Deal began. Without the New Deal, there's every indication that things would have continued to decline. Her argument is like saying that someone who stepped up to hit a grand slam to win a baseball game in the last inning only looked like a hero because we were so far behind. That things were so bad is the point. Policies previous to the New Deal did not serve to start a recovery, the New Deal did that. And the movement looks large, because it large. Which brings us to...
...Nominal data show the gross domestic product never hitting its 1929 level in the 1930s. Some GDP data that are adjusted for deflation show GDP just touching the 1929 level or just touching the 1929 level and then falling back.
Apparently Shlaes has a new definition for the word "nominal." One in which it means "numbers I just made up." And that's putting it politely.
The GDP hit a new record in 1936, only three years into the New Deal, and never again fell below the levels of 1929.
Shlaes has been flogging her nonsense all over town, and supposedly reputable magazines and newspapers keep providing her with an outlet for repeating the same talking points. Apparently, there really is no accountability for those who want to spread GOP mythology about the New Deal.
Now, with corrupt and/or incompetent Wall Street "analysts," rating agencies, accounting firms and other compromised professions being called to account, is there no accountability for those such as Shlaes and those that pay her and those that distribute her false and misleading nonsense? It is factual misrepresentations by ideologues like Shlaes – and her promoters -- that got the world into the current catastrophe and now simply lie to prevent us from getting out.
New York Times:
Kansas Governor Seen as Top Choice in Health Post — WASHINGTON — Gov. Kathleen Sebelius of Kansas, an early Obama ally with a record of working across party lines, is emerging as the president's top choice for secretary of health and human services, advisers said Wednesday.
Peter Baker / New York Times:
Kansas Governor Is Top Choice for Secretary of Health — WASHINGTON - President Obama has settled on Gov. Kathleen Sebelius of Kansas, a key ally with a record of working across party lines, as his top choice for secretary of health and human services, advisers said Wednesday.
New York Times:
Kansas Governor Is Top Choice for Secretary of Health — WASHINGTON —Gov. Kathleen Sebelius of Kansas, an early Obama ally with a record of working across party lines, has emerged as the president's top choice for secretary of health and human services, advisers said Wednesday.
New York Times:
Kansas Governor Is Top Choice for Health — WASHINGTON — Gov. Kathleen Sebelius of Kansas, an early Obama ally with a record of working across party lines, is emerging as the president's top choice for secretary of health and human services, advisers said Wednesday.