What is the Filibuster? Here’s What You Need to Know

Written By: Christopher B. Dolan and Kimberly E. Levy

Jacob from San Francisco asks: What is the filibuster? Where did it come from? And how do we get rid of it?

Dear Jacob: Good questions. The filibuster is a form of political obstruction with a sordid past. Essentially, a filibuster is a procedure by which the U.S Senate minority blocks the Senate majority from voting on a bill and thereby prevents its passage. The Senate filibuster was created accidentally in 1806 when a Senate rule allowing the majority to initiate a vote on a bill was deemed to be redundant and written out of the rules. In the absence of a mechanism for ending debate and initiating a vote, use of the filibuster became possible.  

As a result, in 1917 the Senate adopted a cloture rule to bring debates to a quick end. If a two-thirds Senate majority voted to end the filibuster, then the debate was closed. However, it remained exceedingly difficult to end a filibuster even with cloture —  super majority support was required before a vote on any bill. Rarely able to invoke cloture, the Senate eventually reduced the cloture threshold from 2/3 votes to 3/5, which is where it stands today. To this day, the filibuster still permits a minority of senators to keep debate open in the Senate and indefinitely delay a vote; this effectively allows any legislation to be “killed” by a minority of senators who simply refuse to bring the bill to a vote, even though most bills require only a simple majority to pass. 

The filibuster has been used with increasing frequency by the Senate minority to prevent passage of anything but non-controversial legislation and has been used to further institutionalized racism. Southern segregationist Senators infamously used the filibuster to prevent passage of landmark civil rights legislation including hundreds of bills to combat lynching, the 1957 Civil Rights Bill, and the 1964 Civil Rights Bill which was eventually passed regardless of the filibuster. Historically, the filibuster has been used as a tool to advance a minority agenda and proliferate systemic racism in the United States. The filibuster continues to aid in the suppression of civil rights progress to this day. In fact, the very make-up of the Senate chamber, two-senators-per-state, favors less populated states which are disproportionately white states; these less populous states have a disparate amount of power in the Senate. This disproportionate representation, combined with the requirement for a 60-vote threshold to bring a bill to vote, has stalled racial justice in the United States.

Moreover, the filibuster is not required by the Constitution, nor is it even contemplated within the Constitution. To the contrary, the filibuster undermines the system of legislature envisioned by the framers by replacing legislative decision-making based upon the will of a simple majority with the requirement to obtain a super majority in the Senate to pass legislation. Only specific acts were meant to be governed by a super majority, i.e., impeachment conviction, overriding presidential veto, ratifying treaties, etc.   

In the Federalist Papers, framers James Madison and Alexander Hamilton both expressly point out that to require anything more than a simple majority to pass legislation would be to place undue power and influence with the minority. Madison states, “[i]t would be no longer the majority that would rule: the power would be transferred to the minority.” Disproportionate power and influence from the minority, as embodied by the filibuster, was a major problem with the Articles of Confederation. 

There are some ways to bypass the filibuster. Provisions of law that set time limits for debate are not subject to the 60-vote requirement to initiate a vote and are therefore unaffected by the filibuster. Such provisions include trade authority, congressional review of Presidential acts, in cases of national emergency, and when invoking war powers.  

Another way around filibuster is a process called budget reconciliation. The annual budget process circumvents the 60-vote requirement with a simple majority in both the house and senate. The budget resolution is then followed by a Senate reconciliation bill which brings the budget into line with any funding amounts in annual appropriations bills by simple majority.  

The filibuster may be limited or eliminated altogether by a simple majority vote to change the Senate rules. Ironically, the decision to change the Senate rules is itself subject to filibuster. The rules of the Senate do provide for a “nuclear option” which allows any Senator to challenge a rule’s Constitutionality or simply assert that the rule should not be followed. The presiding Senate officer will typically uphold the Senate rules — a ruling which may be immediately appealed and put to vote without debate requiring only a simple majority. The nuclear option has been used to eliminate the filibuster for presidential appointments.  

The Senate filibuster has and continues to stymy lawmakers, preventing meaningful policy change in the United States. It is time for the legislature to be liberated from the will of the minority and eliminate the filibuster.  

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No Shoes, No Shirt, No Mask = No Service

Written By: Christopher Dolan and Lourdes De Armas

Back in the 1970s there was the public outrage when businesses first placed signs on their doors saying, “No shirt, no shoes, no service.”  This was a response by businesses to keep the long-haired hippies out of their stores and restaurants. There was no state or federal mandate. Many thought businesses were trampling on their civil rights by telling them what they could or could not wear. But businesses have a right to set their own rules for service. The right to refuse service is now an accepted norm as is the phrase.

Similar reactions were heard in the ’80 when California enacted a variety of laws. In 1984, California Supreme Court unanimously upheld a mandatory auto insurance law requiring motorists stopped for traffic violations to prove they have liability coverage or eventually face losing their licenses. Two years later, California’s first seat belt laws took effect on January 1, 1986, and required both drivers and passengers to wear seat belts. It is also a state law that motorcycle riders under age 18 must wear helmets. 

Even in the face of scientific studies showing that seatbelt and helmets save lives, there was the outcry of “the government” interfering with your lives.

Still if you are driving a car and have no proof of insurance, you are not exposing anyone to anything lethal. If someone passes you riding a motorcycle without a helmet, their risk exposure is greater than yours- the same for no wearing a seatbelt.

Now, a whole lifetime later, we buckle up as soon as we sit down in a vehicle, make sure that our kids are wearing helmets, and do not dare drive without insurance. We would not even think about walking into a store with bare feet and no shirt on. All of these have become second nature. No personal liberties have been affected and no one has been hurt by following the rules.

Until the pandemic, we gave little thought to “No shirt, no shoes, no service.” The same should be for masks. Businesses have the right to refuse service to those that refuse to enter without masks. Although it is understandable that culturally, the U.S. wasn’t really prepared to wear masks, unlike some countries in Asia where the practice is more common- it has been almost a year since the pandemic paralyzed the nation and wearing a mask should be second nature. Yet, we are still having this debate.

Mask compliance has become a political issue instead of a health issue despite the evidence. “This is a life-and-death issue. Masks, physical distance and hand-washing are the three things we have to reduce the spread of the virus in the absence of a vaccine”, according to Dr. David Abrams, NYU School of Global Public Health. 

Both the Centers for Disease Control and Prevention (CDC) and the World Health Organization recommend masks for the general public. Keeping in line with the experts, California Department of Public Health issued face covering guidance in April 2020 that must be followed statewide.

Analysis of data from Johns Hopkins University, California ranked No. 1 among the states where coronavirus was spreading the fastest on a per-person basis. Still protests over wearing masks are now commonplace. As Dr. Abrams pointed out “There’s a certain bravado of being angry and defying requirements to wear a mask.”

  • “Costco Karen,” for instance, staged a sit-in in a Costco entrance after she refused to wear a mask, yelling “I am an American … I have rights.”
  • An unruly crew marched through Target yelling “Take off your masks, we are not going to take it anymore.”
  • “Burn the Mask” protestors blocked the entrance of Trader Joe’s in Fresno to causing the store to close early.
  • A protestor at a Ralph’s in Los Angeles called a shopper wearing a mask a “mask Nazi.”
  • In a mall in Century City, anti-mask protesters tried to force their way into several stores causing workers to be barricade themselves inside stores to keep out protesters.

Despite the protestations, wearing a mask just like wearing seat belts, shoes and a shirt, does not violate your rights. The government has a right to enact laws to protect the health and safety of the public. That is the quintessential role of the government. 

To the extent that protestors object that masks violate their right to liberty (“my body, my choice”), they should direct their attention to Jacobson vs. Massachusetts (1905) 197 U.S. 11, the Supreme Court upheld the state’s smallpox vaccination requirement. The case has not been overturned.  The case clearly explains why mask mandates do not violate any constitutional right to privacy, health, or bodily integrity. The court ruled that the requirement didn’t violate Jacobsen’s right to liberty or “the inherent right of every freeman to care for his own body and health in such way as to him seems best.” The court added that “[t]here are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members.” 

The case makes it clear that the ideals of limited government do not absolve us of our social obligation to protect each other. Simply put, we do not have a constitutional right to infect others.

For now, masks are necessary. Common sense suggests that If there is no choice, we will wear masks. We all will be safer if businesses work together to make “No Shirt, No Shoes, No Masks, No Service” the norm in California.

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A Closer Look at California’s New Laws for 2021

Written By Christopher B. Dolan and Jeremy M. Jessup

This week’s question comes from Johanna in Truckee who asks: Every new year there are hordes of new laws that are enacted but I find it difficult to know what they are. Is there any way you can provide some highlights of California’s new laws?

Dear Johanna: Out with the old and in with the new, as the saying goes, and as you pointed out — and that includes a number of new laws that went into effect on January 1st here in California or are going to come into effect shortly. There were hundreds of bills that were signed into law and some that were voted on by the people. A number of these will not start until later this year, such as being prohibited from buying more than one semiautomatic rifle in a 30-day period. Some may begin even later, like a flavored-tobacco ban that was set to go into effect on the 1st, probably will not be adopted until some time in 2022.

Here are some of the laws that have gone or are going into effect for 2021:

Additional penalties for texting and driving

It’s already the law that you must use hands free devices while driving, whether you’re talking or texting. Now the punishment is getting stricter. Two convictions in 36 months will add a point to your record starting in July 2021.

 Hot car rules

It’s already against the law to leave a child under 6 in a car unattended. Now those who try to help are protected from civil or criminal liability for property damage or trespassing if they break into the car to rescue the child.

Minimum wage 

Starting January 1s California’s minimum wage is $14 at companies with 26 or more employees and $13 at companies smaller than that. This is a $1 increase from last year’s hourly minimum. Some cities, like Palo Alto, Sonoma and Mountain View have already increased their minimum wages to $15 or more this year.

Expansion of paid family-leave benefits

Family-leave benefits for nearly six million residents have been expanded. In addition, Californians who work for an employer with at least five employees are included in job protection benefits. The new law also expands on the potential reasons for taking leave, making it possible for workers affected by COVID-19 to take time off to care for a parent, sibling or grandchild.

Transgender protections

The Transgender Respect, Agency and Dignity Act allows incarcerated transgender, gender-nonconforming and intersex individuals to be housed and searched according to their gender identity.

Workplace COVID-19 protections

The new law requires employers to take specific actions, like written notifications to employees, within one business day of a potential exposure to COVID-19 in the workplace. The notification must be written in English and another language, if applicable. This law does have a sunset provision, which is the end of 2023.

Inmate Firefighters

After a devastating fire season, when many inmate firefighters were released early because of the pandemic, prisoner firefighting crews served a crucial role; a new law will now allow nonviolent offenders to petition to get their records expunged and to use their training to gain employment as firefighters. Previously, inmates were precluded because of their criminal records from becoming firefighters upon release.

Parolees’ right to vote

Voters passed Proposition 17 in the November election, which restores felons’ right to vote after the completion of their sentence.

Youth criminal justice reforms

Starting in July, the state will be phasing out juvenile prisons. In addition, a new law prevents kids who are acting out in school from being referred to probation programs or becoming a ward of the court; instead, they’ll be referred to community support services. Finally, it will become easier for minors in police custody to get legal counsel before being questioned.

The three remaining state youth facilities will no longer accept newly convicted youth after July 2021. The state will be transferring the responsibility of the convicted youth back to the counties. 

Student loan borrowers

Effective July 2021 will be Assembly Bill 376 which offers new protections for student loan borrowers and makes it harder for lenders to take advantage of people who may not know all their rights or how to navigate the system.

Demilitarizing police uniforms

Law enforcement will no longer be allowed to wear uniforms that have camouflage or otherwise resemble military uniforms. This law does not apply to members of various tactical response teams, such as SWAT, nor does it apply to the Department of Fish and Wildlife.

Bans on certain police restraint tactics

AB 1196 eliminates the use of any chokehold or carotid restraint technique by law enforcement. The bill prohibits any state or local law enforcement agency, including campus police, from authorizing the use of a carotid restraint or chokehold. The bill defines a chokehold as any defensive tactic involving direct pressure applied to a person’s trachea. It also defines a, “carotid restraint,” as any restraint, hold, or other defensive tactic that applies pressure to the sides of a person’s neck, which involves a substantial risk of restricting blood flow, and that may render the person unconscious.

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What You Need to Know About the 25th Amendment

Written By: Christopher B. Dolan and Matthew D. Gramly

This week’s question comes from Donald in Washington, D.C. who asks: Following the January 6th riots in Washington D.C and the storming and occupation of the Capitol Building by domestic terrorists egged on by President Trump, I’m hearing many people call for the invocation of the 25th Amendment. What is it, what does it do, and how does it work?

Dear Donald: Thank you for your timely question. The 25th Amendment to the Constitution of the United States, commonly referred to as the Disability Clause, provides a framework to remove a sitting President from office before the end of their term, either willingly or unwillingly. It defines when and how the Vice President becomes President if a sitting President dies while in office, resigns or is removed from office. 

The Amendment was drafted in 1965 in the wake of the assassination of President John F. Kennedy. Following Kennedy’s assassination, Lyndon B. Johnson was sworn in as the next President on Air Force One in Dallas, Texas. However, there needed to be a more formal set of Constitutional guidelines in place to govern such circumstances. The draft amendment was submitted to the states by Congress for approval and was formally adopted as an amendment to the Constitution on February 10, 1967.

There are four sections within the 25th Amendment. The first three sections address what is to happen in the case of the President’s death, or a resignation or incapacitation which the President acknowledges. The fourth section addresses the incapacitation of the President that the President is unwilling or unable to acknowledge, essentially removing a President from office against his will. It would seem that for purposes of this discussion it is the fourth section that applies most directly to current circumstances. The bipartisan allegation has been made that President Trump purposefully instigated his supporters to violently take over the Capitol Building in Washington, D.C., that he aided and abetted a terrorist attack on the United States, that he encouraged it while it was happening, and that this is evidence of his unfitness for office. Many people are saying that he is a clear and present danger to the United States and must be removed from office immediately.

The fourth section of the 25th Amendment provides the framework and process by which this could be accomplished. Theoretically the fourth section allows the Vice President, along with a simple majority of members of the President’s Cabinet (Secretary of State, Secretary of Defense, Secretary of Labor, etc.) to make the determination on their own that the sitting President is in some manner disabled to the point of being no longer capable of performing the functions of the office in a competent manner. However, it is important to note that it has never been enacted against a sitting President’s will. There is no precedent in American history for what our nation currently faces: the possibility of removing a sitting President from office who is conscious, otherwise fully ambulatory and does not want to go.

The 25th Amendment has only been invoked a few times in our nation’s history. Most recently it was called upon for such a mundane thing as President George W. Bush being under sedation for a colonoscopy. The powers of the office, if not the title, were thereby transferred to then Vice President Dick Cheney for a few short hours. The 25th Amendment was NOT enacted, however, in 1981 following an assassination attempt on President Ronald Reagan, who was under sedation and incapacitated for a much longer period of time than one would be for a routine colonoscopy. President Reagan’s doctors later stated that the situation had most definitely called for the enactment of the 25th Amendment’s provisions for a period of several days.

It is also important to note that similarly with the concept of whether a sitting President can issue a self-pardon for federal crimes, the fourth section of the 25th Amendment, removing an otherwise healthy sitting President from office against his will, has never been tested in the courts. It simply never has been attempted. However, the fourth section of the Amendment DOES provide a Constitutional framework for doing so.

The first paragraph of Section Four reads as follows,

“Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.”

This single sentence provides for the Constitutional removal of the President of the United States of America from office against his will.

It would require what would essentially be a letter signed by Vice President Mike Pence and 11 or 12 members of the President’s Cabinet attesting under penalty of perjury that President Donald Trump is no longer capable of performing the duties of the Office of the President. They would deliver a copy to the Senate and a copy to House Speaker Nancy Pelosi. Thereafter Mike Pence would be immediately sworn in as Acting President, thus ending the Presidency of Donald. J. Trump. Regardless of whether or not the provisions of the 25th Amendment are enacted in these current circumstances, at noon on January 20th Joseph R. Biden and Kamala D. Harris will be sworn in as President and Vice President, respectively.

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ADA and Voting

Q: Samy: May other people help me vote?

A: Samy, great question. You can choose 1 or 2 people to help you in the voting booth, but not your employer or union official.  You can ask an election worker to help you, but, they must not influence you; you can ask or bring a sign language interpreter to help or call the County Elections Office before the election to request an ASL interpreter. You can also take your service animal to the polling place and into the voting booth.

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Q: Madison: My mother was appointed a conservator several years ago, can she vote?

A: Excellent question Madison. The short answer is your mom vote unless a judge ruled that you are not allowed to vote. When your mother was first assessed for a conservatorship, the court made a decision about whether she can vote. There are lots of ways to find out if she is eligible to vote:

  • Check the order appointing a conservator (look at the form with the number GC 340).
  • There is a section that says whether or not she is allowed to vote.
  • If the box on the form is not checked, then your mom is eligible to vote once she registers, she can vote.
  • If the box on the form is checked, then the court said she cannot vote.
  • If you cannot find your form GC 340, you can ask your conservator, the case manager at your regional center or call your county elections office to ask if she is eligible.

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Q: Jillian: Can I vote if I will not be able to vote in person and it is more than a week before Election Day?

A: Jillian, thanks for asking. Anyone can request a Vote-by-Mail ballot at least 7-days before Election Day, October 27, 2020, by filling out and returning the postcard on the Sample Ballot/Voter Information Guide, or by calling your County Elections Office. A complete list of all Elections Offices by county is located at: https://www.sos.ca.gov/elections/voting-resources/county-elections-offices/

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Q: Marley: How can I vote if I did not request a Vote-by-Mail ballot in time, but I cannot leave my home or am hospitalized because of a medical emergency?

A: Marley, despite the best laid plans’ life happens. California has special procedures for a voter hospitalized or in a care facility or cannot leave their home due to a medical emergency. If you registered to vote at least 15 days before Election Day and are not able to vote in person because of a medical emergency and it is less than seven (7) days before Election Day (the deadline for requesting a Vote-by-Mail ballot), you can request and complete an emergency medical ballot.

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Q: Romulus: What is an Emergency Medical Ballot and how does it work?

A: Romulus, thanks for asking, for the six days prior to an election, a registered voter who is unable to vote in person at a polling place or vote center due to confinement in a hospital, another facility or at home because of a medical emergency can fill out a form to authorize someone to go to the Elections Office to pick up a ballot for them. You may have another person help you read and mark your ballot. Others may not mark your ballot for you unless you ask them to do so.

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Q: Remus: What is a late vote-by-mail ballot?

A: Remus, If a voter is not able to vote in person at the polls and does not have a vote-by-mail ballot, the voter may apply in writing for a late vote-by-mail ballot. This application must be provided in person to the county elections official by the voter or the voter’s representative. The late vote-by-mail ballot must be returned personally or through the voter’s representative. The following link is a California Late Vote-By-Mail Ballot Application.

https://elections.cdn.sos.ca.gov/vote-by-mail/pdf/late-vote-by-mail-application.pdf

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Q: Jeff: This is an extremely important election and I want to make sure my vote counts. I have a disability want to know what services are available for me before I show up to vote.

A: Jeff, thank you for your question. Set forth below are links to election information for accommodations such as American Sign Language (ASL), accessible polling places listed by county, county early voting and drop box locations, large print, audio ballots, curbside voting and more.

Resources:

Disability Rights California operates a Voting Hotline to assist Voters with Disabilities. Please feel free to call for assistance: 1-888-569-7955.

Assistance for Voters with Disabilities

Polling place accessibility guidelines

Guide to Counties providing curb-side voting

Track your ballot

American Sign Language (ASL) assistance with ballot – ASL video ballot propositions

Large Print and Audio Voter Information Guides

Early voting and ballot drop box locations

Find your polling place

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Unofficial Ballot Drop Boxes

Written By: Christopher B. Dolan and Casey Hultin

This week’s question comes from Nancy B. who asks:

Q: I have read that there are unofficial ballot drop boxes. How do you know if a ballot drop box is real? And what do I do if I find out later that I dropped my ballot off at the wrong ballot drop box?

A: Dear Nancy,
Great question. You can check online to see the locations of official drop-off boxes in your area at caearlyvoting.sos.ca.gov. The California Secretary of State lists all the official ballot drop-off locations in your area. You can search in any city or county, or search for all drop-off locations within 10 miles of a particular address. The California Secretary of State also lists all services provided at that location (many ballot drop-off locations are also locations for early voting) and the hours during which the services are provided. You may have better luck searching using a specific address. When I searched with my zip code, only four different ballot drop-off locations popped up. When I searched by my address, I found 82 locations within 10 miles of my address (and the first ten options were all closer to my location than the 4 that appeared when I searched my zip code.)

The ballot drop-off locations listed online are updated frequently in the event there is a new official ballot drop-off location.

If you do not see a ballot drop box that you know of on the California Secretary of State website, it is likely an unofficial, unauthorized drop box. If you drop your ballot in one of the unofficial, unauthorized ballot drop-off locations, there is no guarantee that your ballot will be counted. If you have already placed your ballot in an unofficial, unauthorized drop box, and you are concerned whether your vote will be counted, you have a few different options.

You should first check to see if your ballot has already been accepted. You can check this on BallotTrax at california.ballottrax.net by signing up for a free account that shows the status of your ballot. You do not need to sign up prior to dropping your ballot off to receive updates.  BallotTrax has your ballot information already. The website updates quickly and provides updates at different stages. For example, BallotTrax will tell you when your ballot is, “inbound,” and the postal service has indicated that they have your ballot and are returning it to your county elections office. The website also will tell you when your ballot has been received by county election officials and when county election officials have accepted your ballot. If you dropped your ballot off in an unofficial ballot drop-off location more than a week ago, and the website still does not reflect that the postal service is returning your ballot to county officials, that may be cause for concern.

If BallotTrax does not show that your ballot is in route to county officials, and you dropped off your ballot, you should contact your county election officials to ask what they prefer you do, as procedures for a lost ballot vary from county to county. Given we are already less than three weeks away from Election Day, the deadline will have likely passed to receive a new ballot in the mail. Instead, your county will likely ask you to vote via provisional ballot at your local polling place. Provisional ballots are used in situations where a person’s voting status has not been verified for some reason. They are carefully audited to make sure a person casting a provisional ballot is not voting for a second time. Provisional ballots are helpful in situations such as this one where a person is unsure their vote will be counted and wants to be sure they voted.

Christopher B. Dolan is the owner of the Dolan Law Firm. Casey Hultin is an Associate Attorney based in our San Francisco office. Email questions and topics for future articles to: help@dolanlawfirm.com.

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Health and safety measures at the voting booth

By Christopher B. Dolan and Vanessa C. Deniston:

This week’s question comes from Stella M. who asks:

Q: I am interested in volunteering as a poll worker in my county on Election Day, but I am concerned about the health & safety ramifications. Hundreds of people will likely be funneling through polling stations on November 3rd, while we are in the middle of a global pandemic. What steps are being taken to protect the health and welfare of both volunteers and citizens?

A: Dear Stella,

Thank you for your question. Your enthusiasm to volunteer is admirable, as is your healthy respect for the Covid-19 virus. First, you should evaluate if volunteering in person makes sense given your own health. If you are immunocompromised or otherwise fall into a high-risk group, in-person volunteering would pose a considerable risk. If poll working is too great a risk for you, there are a great number of ways to help get out the vote, such as phone banking, ensuring voters have a ride to the polls, helping by talking voters through the mail-in-ballot process, and assisting individuals in obtaining a valid ID.

If you are not in a high-risk category and you want to volunteer in person, the CDC has released guidelines to keep poll workers and citizens safe, though there will always be risk involved. The CDC recommends three strategies in helping reduce risks during the election process.

The first strategy is offering a wide variety of voting options, including: voting by mail, early voting or voting in person. In June 2020, Governor Newsom signed a law requiring counties to drop off mail ballots to every active registered voter, whether or not requested. Counties are also required to open one ballot drop-off location for every 15,000 registered voters 28 days before election day. 

The second strategy is offering longer voting periods through early voting periods and longer operating hours on Election Day. Given the economic effects of the COVID-19 pandemic, venues traditionally used as polling places such as community centers, retirement homes and churches are harder to utilize safely. In August 2020, California Senate Bill 423 was approved giving counties the ability to merge precincts, as long as voter ratios remain intact. These consolidated polling places are required to be open from October 31, through Nov. 2 for at least eight hours each day and from 7 a.m. to 8 p.m. on Election Day.  

The third method involves implementing rigorous safety protocols at polling stations. California’s Secretary of State has set out a number of measures to be taken before volunteers arrive at their assigned polling place as well as while they are volunteering. Poll workers must make every effort to stay healthy prior to service, including engaging in self-screening, temperature and symptom checks, frequent hand-washing and use of hand sanitizer, wearing a face covering, and observing social distancing guidelines leading up to service. 

Once inside the polling place, poll workers should continue to take these safety measures. Polling stations should be configured to ensure traffic flow is conducive to social distancing guidelines and face-to-face interactions are minimized. Check in stations should be placed six feet apart from one another and floor markers should indicate appropriate distances as well as help directional flow. Voting booths should also be placed six feet apart from one another, as well as six feet apart from the check-in desk and scanner. Some sites with limited space may receive plexiglass or other partitions which can block air flow between booths. The scanner station is recommended to be near an exit, preferably at the opposite side of the entrance with an exit through a different doorway. Keeping doors and windows open for extra ventilation is also recommended. 

As a poll worker, you will be tasked with routinely disinfecting commonly used surfaces, such as door handles, pens and voting booth equipment. You will also be guiding voters safely through the physical voting process, which will require maintaining social distancing and giving clear and audible verbal instructions. Poll workers are advised to ask each voter to use hand sanitizer and should not provide the voter a ballot until the hand sanitizer has dried. 

Poll workers should wear a mask at all times and may need gloves, considering that some voters could be asymptomatic. Should a voter arrive without a mask, free masks will be available for use. It is important to know voters cannot be turned away for failure to wear a mask. This may mean poll workers will have to adjust the flow of traffic to ensure the voter is kept as socially distanced from others as possible. One voting booth should be placed further away than others for mask-less voters. Poll workers should offer verbal assurances that the citizen will be allowed to vote, despite not having worn a mask. Should a citizen become hostile or aggressive, poll workers should have an agreed upon phrase to signal a call to security or law enforcement. 

Should you decide to volunteer your time, be sure to review both the CDC guidelines and California State Guidelines for poll workers ahead of your date of service. Good luck, stay safe and we thank you for playing this important role in ensuring a free, fair and accessible election for all Californians.   

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What is the Electoral College and why do we have one?

Written By: Christopher B. Dolan and Matthew D. Gramly

Donald from Belvedere asks:

Q: Is it possible for a candidate to become President of the United States without winning the nationwide popular vote?

A: Dear Donald,

Yes, it is possible. In fact, that has happened twice in the very recent past. Over the last seven presidential elections, the Republican candidate has only won the popular vote a single time, in 2004, yet has become President three times. George W. Bush lost the popular vote in 2000 but became President. He won the popular vote in 2004 and was re-elected.  Donald Trump lost the popular vote in 2016 by more than three million votes yet became President anyway. 

How could this be?  The answer is because we have something in the United States called the Electoral College.  We do not elect presidents based on who won the nationwide popular vote.  Candidates have to win the popular vote in individual states. Once they do, that state’s electors will cast ballots in favor of the candidate who won that individual state. Each state is awarded a number of electors equal to the number of members that state has serving in the House of Representatives as well as their two Senators.  Currently there are 538 electors; 100 for members of the U.S. Senate, 435 for members of the U.S. House of Representatives, and three representing Washington D.C., which is not currently a state. The electors are the people who actually cast binding ballots to elect each President.

It sounds convoluted and seems to be contrary to the ideal of “one person, one vote” but the Electoral College actually dates back to the founding of our nation and is enshrined within the Constitution.

During the late 1700s our founding fathers never intended for the election of a president to be left to whoever won the popular vote of the combined states or colonies that existed at that time. They did not trust the electorate to be wise in making this decision; our founding fathers viewed everyday Americans as unsophisticated, illiterate, and frankly, not smart enough or sufficiently emotionally stable to be trusted with choosing a president. Another concern was that the more populous states (in the north) would overrun the will of lesser populated states (in the south) with every election merely because more people who could vote lived in the north. Remember, back in the late 1700s the only Americans eligible to vote were white adult males who owned property. Women and slaves did not have the right to vote. There were simply more eligible voters in the north than there were in the south and the southern slave states feared a never-ending procession of presidents who were unsympathetic to owning slaves.

At the Constitutional Convention in Philadelphia, PA in 1803, James Wilson, representing Pennsylvania (a non-slave state), proposed that each president be elected by direct popular vote. James Madison (hailing from the slave state of Virginia) countered that the southern slave states would not agree to such a system because the almost 750,000 slaves in southern states at that time couldn’t vote. Describing this, Madison wrote, “The right of suffrage was much more diffusive [i.e., extensive] in the Northern than the Southern States; and the latter could have no influence in the election on the score of Negroes.” He was complaining that southern states would not get a number of votes representative of their actual populations because slaves could not vote – even though those same states were the ones preventing slaves from being able to vote. The southern states, however, received credit for the slaves populating their states when calculating the population to determine the number of Representatives representing each state in Congress. In this calculation, slaves were counted as 3/5 of a person, which is stated in the Constitution. Thus the compromise to protect the slave states’ interests was reached and the Electoral College was formed.

Given this antiquated system, designed at least in part to preserve slavery in the southern states, it is entirely possible for a presidential candidate to lose the nationwide popular vote yet win the Electoral College. Here is how that works currently: Electors are not apportioned equally based on each population, largely because of the Senate. Each state gets two U.S. Senators, regardless of population, and thus at least two electors. Wyoming has a population of less than 600,000 people and has two Senators for a total of 3 electors. California has 40 million people, two Senators, and just 55 electors. 

The Electoral College is not representative of the actual electorate nor was it designed to be when it was formed over 200 years ago. When the Electoral College was created slavery was still legal and practiced by half the country, slaves could not vote, women could not vote. Many argue that it is time for the Electoral College to be abolished. In the age of Black Lives Matter it is difficult, at best, to argue that it should be preserved.

 

Christopher B. Dolan is the owner of the Dolan Law Firm. Matthew D. Gramly is a Senior Associate Attorney based in our San Francisco office. Email questions and topics for future articles to: help@dolanlawfirm.com.

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With Election Day coming, here’s how to vote in California

Written by: Mari Bandoma Callado and Christopher B. Dolan

Billy S. asks:

Q: “I have seen many terms like provisional, mail-in and in-person voting. It’s all very confusing. Can you explain what this all means?”

A: Thank you for your question Billy. In order to fully participate in our democracy, we encourage all eligible voters to exercise the right to vote in local, state and national elections.

Election day is Tuesday, Nov. 3, 2020. This year, all of California’s registered voters will be mailed a ballot no later than 29 days prior to Election Day per Gov. Gavin Newsom’s Executive Order N-64-20. Due to the COVID-19 pandemic, this is an unprecedented election and new voting location rules are in place should some voters still choose to participate in-person.

This article will discuss how to register to vote in the Nov. 3, 2020 General Election, explain what a provisional ballot is, how to vote by mail, where to find information on how to vote early and in-person.

Eligibility
To register to vote in California, you must be a U.S. citizen and a resident of California. You must be 18 years or older on Election Day. For information on eligibility if an individual has a criminal history or subject to conservatorship, click here.

How to register
To check if you’re registered to vote, click here. To register online, you can fill out this online application. The application is available in several languages including English, Spanish, Chinese, Hindi, Japanese, Khmer, Korean, Tagalog, Thai and Vietnamese. You can also register to vote using the California voter registration form or obtain a form at your local library, U.S. Post Office, or Department of Motor Vehicles offices. Note that your registration must be postmarked or submitted electronically no later than Oct. 19, 2020 to participate in the Nov. 3, 2020 election.

What is a provisional ballot?
If you miss this deadline to register, you may conditionally register to vote and cast a provisional ballot by visiting your county elections office, a vote center, or a designated satellite location during the 14 days prior to, and including Election Day. For more information, click here.

A provisional ballot is a regular ballot that is placed in a special envelope prior to being put in the ballot box. Your provisional ballot will be counted after election officials have confirmed that you are registered to vote in that county and you did not already vote in that election. To check the status of your provisional ballot, click here for a list of county contacts and information on how to check the status of your provisional ballot.

How to vote by mail
All registered voters will be sent a vote-by-mail ballot for the Nov. 3, 2020, General Election and registered voters do not have to apply for a vote-by-mail ballot for this election. Instead of going to the polls on Election Day, you may vote using the vote-by-mail ballot that will be sent to you. After you vote, insert your ballot in the envelope provided and you have several options to return your voted ballot:

  1. Mail it to your county elections official (must be postmarked on or before Election Day and received by your county elections office no later than Nov. 20, 2020);
  2. Return it in person to a polling place or the office of your county election officials (note that vote-by-mail ballots that are personally delivered must be delivered no later than 8 p.m. on Nov. 3, 2020;
  3. Drop off your ballot in one of your county’s ballot drop boxes (no later than 8 p.m. on Nov. 3, 2020);
  4. Authorize someone to return the ballot on your behalf (must fill out the authorization section found on the outside of your ballot envelope).

For a list of county elections offices, visit: https://www.sos.ca.gov/elections/voting-resources/county-elections-offices/

Can I vote early?
California voters can also vote before Election Day, from Monday, Oct. 5, 2020 to Monday, Nov. 2, 2020. However, dates and hours vary depending on where you live. Early voting and vote-by-mail ballot drop off locations may be found on the Secretary of State’s early voting website.

Can I still vote in person?
In-person voting locations will also be available to voters. Gov. Newsom’s executive order gave California counties permission to limit in-person voting operations as protection against the spread of COVID-19 but only if they also offer three days of early voting. If you are choosing to vote in person, make sure to confirm your polling location by visiting the Secretary of State’s website.

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Are the Feds Required to ID Themselves?

Written by: Christopher Dolan and Cristina Garcia

This week’s question comes from Roger who writes,

Q: “I have been following the news about the protests in Portland, Oregon. Protesters have reported arrests by federal law enforcement officers in unmarked vehicles and without visible badges. I personally have participated in peaceful protests and find this troubling. It seems counterintuitive to allow individuals in plain clothes and in unmarked vehicles to arrest you. Further, how is one supposed to know that they are law enforcement officers or identify the agency they work for if they are not wearing badges? Are federal law enforcement officers required to identify themselves when making arrests?”

A: Dear Roger,

that is a great question. Currently there is no federal statute requiring federal officers to disclose their identity or their agencies of affiliation. For this reason, many federal law enforcement officers will simply identify themselves as “federal law enforcement.” As you mentioned, this is concerning as citizens engaged in peaceful protests would be unable to identify the officer or the agency that apprehended, detained, or arrested them.

Many legislators became alarmed as news reports poured in from Portland, Oregon reporting several arrests made by federal law enforcement officers in unmarked vehicles and without visible badges. For this reason, two new bills have been introduced to Congress in an effort to reach transparency. The new bills would require federal law enforcement officers to identify themselves and it would prohibit the use of unmarked vehicles when apprehending, detaining or arresting civilians when engaging in crowd control which includes demonstrations, protests and riots.

On June 8, 2020, the Senate introduced Senate Bill 3909 – Law Enforcement Identification Act and on June 11, 2020, the House of Representatives introduced an identical bill which reads in relevant part:

“(b) REQUIREMENT. – Each Federal law enforcement officer or member of an armed force who is engaged in any form of crowd control, riot control, or arrest or detainment of individuals engaged in an act of civil disobedience, demonstration, protest, or riot in the United States shall at all times display identifying information in a clearly visible fashion, which shall include the Federal agency, last name, and badge number of the Federal law enforcement officer or the armed force, last name, and rank of the member of an armed force, respectively.”

If the above bill is passed, it would require all on-duty federal law enforcement officers to clearly display their agency name, their own last name and their identification number. This would allow citizens to know which agency is arresting them. It would also create a sense of accountability as the citizens arrested or witnessing arrests would be able to identify the officer and agency, which would facilitate their ability to report any abuses or misconduct to the correct agency.

The Senate has also introduced Senate Bill 4220 – Preventing Authoritarian Policing Tactics on America’s Streets Act, which would also require all federal law enforcement officers to identify themselves when engaging in any form of crowd control. However, this bill takes it one step further by prohibiting federal law enforcement officers or members of an armed force from taping over or otherwise obscuring or concealing their identification information. Further, federal law enforcement officers would also be prohibited from using an unmarked vehicle for apprehension, detention or arrest of civilians while the officer or member is engaged in any form of crowd control which includes demonstrations and protests.

The purpose of this bill is to limit the use of federal law enforcement officers for crowd control. The federal government has the authority to use federal law enforcement officers to protect federal property that is owned or occupied by the federal government. However, given that in Portland many federal law enforcement officers were reported making arrests several miles away from federal property, the Senate has introduced Senate Bill 4220 to place restrictions on federal law enforcement. Senate Bill 4220 provides that,

“…a Federal law enforcement officer or member of an armed force may only be authorized to perform any form of crowd control, riot control or arrest or detainment of individuals engaged in an act of civil disobedience, demonstration, protest or riot on Federal property or in the immediate vicinity thereof, which shall include the sidewalk and the public street immediately adjacent to any Federal building or property.”

This bill would restrict federal law enforcement officers from arresting or detaining citizens who are engaged in peaceful protests who are not on federal property or in the immediate vicinity of federal property.

Although there is no federal statute requiring federal law enforcement officers to identify themselves at this time, this can change if the Law Enforcement Identification Act and the Preventing Authoritarian Policing Tactics on America’s Streets Act are enacted.

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