The Lesson of George Floyd: It’s Time to Put the Minneapolis Police Department Under State Control

Minneapolis has a police problem.  It has a race problem.  We have known both of those facts for
years.  The question is the cause and what are the possible solutions?  There is no simple answer but one is that Minneapolis police department needs to have a major cultural change that can only be effected by either state takeover of it or by merging it with or having it taken over by the Hennepin County Sheriff or placed under receivership and operation with another jurisdiction.
Minneapolis has long had a problem with its police department.  Muckraker Lincoln Steffens in his 1904 classic the Shame of the Cities and in his 1903 McClure Magazine cover story highlighted the corruption and problems in the Minneapolis Police Department that included graft, corruption, and a host of other issues.  There is a problem in controlling the police that go back over a century.
There is also a well-known racial problem.  It is one of the most racially segregated cities in the nation with terrible education, health care, incarceration, income, and employment disparities.  Combine them together and they yield a racial problem with policing, especially including excessive use of force.
Twenty years ago I taught a class on police civil and criminal liability law.  Minneapolis was a living laboratory in what not to do.  The City made constant pay outs to victims and families and across two country prosecutors that included now Senator Amy Klobuchar and Mike Freeman little had been done to hold officers criminally liable.  There are lots of reasons for this.  Some are political and not wanting to take on the police or wanting to appear tough on crime.  Others are the fact that the law on police criminal (and civil) liability favor them over victims.  As a result, Minneapolis is perhaps the most notorious example of police racial violence against people of color.
What do we do now?  Addressing the underlying racial and economic disparities in income, education, and health care are needed but they will not change police behavior.  There is a persistent cultural problem with Minneapolis police practice that needs to be addressed.
Some had hoped that Monell v. Department of Social Services, 436 U.S. 658 (1978) would provide an answer.  The Monell decision allowed individuals to sue under 42 U.S. Code § 1983 for civil damages.  These §1983 suits, if won, would require cities to pay civil damages for abuses of constitutional rights.  If cities had to keep paying out then maybe they would have an incentive to force changes in police practices or training.  Great theory except it did not work, including in Minneapolis where despite millions of dollars paid out training and use of force practices have not changed.
Others blame the police unions. It is not so much the unions as it is the psychology of the “thin blue line” where in a view of us versus them, police are hesitant to take action against or buck other police officers.  This is just the most extreme version of no one like a snitch or fink.
Maybe the fault is with the public.   Generally suspects and defendants  do not garner much sympathy from the public.  Racism may be a factor when often it is white police interacting with people of color.  Of course the exception in Minneapolis was when a Black police officer shot a white woman and there was a rush to convict him.  Many felt good about themselves here indicating they could now support a victim over the police.
There is also a culture of complacency. By that, Minneapolis has a reputation of being one of the most liberal cities in America.  Mayors, city council members, and voters can say all the right things about race but at the end of the day the solutions fall from short of anything beyond rhetoric.
Finally, mayors in Minneapolis are weak.  They cannot do much.  The city is effectively a one-party town where the establishment is not going to challenge anyone in power for fear it will hurt their career.
Now firing four police officers and calling for them to be charged with murder will placate some but it still will not change the culture and administration of policing.  What should be done?
It is clear, if Steffens was correct, that the police have been a problem for Minneapolis for more than100 years.  The City has shown it is incapable of reforming or correcting the problem.  It is doubtful people of color have much confidence in the City of Minneapolis to fix the problem.  Someone needs to step in.
Solution one is a takeover of the Minneapolis police department by the State of Minnesota.  This probably would require legislation altering or preempting home rule authority of the City.  Across the country states such as New Jersey have employed similar solutions when it comes to education.  Maybe the State of Minnesota putting the police department under its control would be an option.
Solution two is disbanding the police department entirely and letting the Hennepin County Sheriff perform public safety functions in Minneapolis.  A variation of that is merging the Minneapolis police department into the sheriff’s office or putting the former under some type of receivership with another jurisdiction.  Perhaps this what should have been the remedial basis of a previous civil rights law suit.
Overall, continuing to believe that the City of Minneapolis can administer and reform its police in a racially neutral manner increasingly looks unlikely and a new entity needs to run or provide for the public safety needs there.

The Case Against Klobuchar: Why She Should not be Biden’s Vice-Presidential Pick

            If Joe Biden and the Democratic Party wants to beat Donald Trump this fall selecting Amy

Klobuchar as the vice-presidential running mate is not going to do it.  If in fact vice-presidential candidates do matter the Minnesota Senator may be one of the least helpful picks Biden can make.

            Amy Klobuchar is being vetted by Joe Biden as a possible vice-presidential pick. Commentators such as Kathleen Parker,  David Byler,  Norman Sherman,  and probably every member of the DFL Party in Minnesota think she is the logical and obvious choice.  Of  course, they say, she is the perfect moderate to complement  Biden’s candidacy.  She has won in Trump territory; she will deliver Minnesota and appeal to Midwesterners.

            Let’s start with basics—vice-presidential picks really do not matter much. There is this conventional  folk wisdom, call it  an“old politicians’ tale," or cherry tree history (the reference to allegedly George Washington cutting down a cherry tree and admitting he did it by saying “I cannot tell a lie”)  that vice-presidential candidates  matter and they can be game changers for a candidate.  Some point to John Kennedy selecting  Lyndon Johnson in 1960 and winning Texas as proof.  However, Texas was still a Democratic Party state then.  Moreover, as the single best book on vice-presidential selection has shown, vice-presidential candidates have little impact on voter choices for president.  It is not that Veeps  do not matter at all, but their influence is very slight and the media and politico hype over them is really overblown.  Similarly,  there is little if no evidence that vice-presidential picks can help a presidential candidate win the former’s  home state.

            Let’s assume vice-presidential picks matter;  Is Klobuchar a good choice?  Not really for several reasons.  For one, she is a moderate just like Biden.  The liberal base of the Democratic Party needs to show up and vote in 2020 unlike in 2016 where it stayed home.  Biden does not excite the liberals, and neither does Klobuchar.  Klobuchar is similar to Hillary Clinton’s choice of Tim Kaine in 2016—unobjectionable but not excitable, especially to the liberals.

            Second,  there is  this belief that Klobuchar will help deliver  the Midwest or Trump voters  This is naïve for a couple of reasons.  One, Minnesota  is not like the rest of the Midwest; its politics is very different from Wisconsin, Michigan, and Iowa.  What plays here does not necessarily play elsewhere.  A Minnesotan on a ticket does not get you Wisconsin.  Proof of that is the second point—Klobuchar staked her presidential campaign on a good showing in Iowa—she came in a distant fifth.  Similarly, years ago Minnesotans Michele Bachmann and Tim Pawlenty thought the Minnesota proximity to Iowa will lead to victory in the Hawkeye State—it did not.  There is simply limited appeal from one state to another.  As far as winning Trump voters, the day Klobuchar cast a guilty vote in the Senate to impeach Trump is the day she lost those voters.

            There is also the issue of maybe placing Klobuchar on the Biden ticket will help the latter hold Minnesota.  Recent polls show Biden in a competitive race with Trump for Minnesota.  Assuming Klobuchar can deliver Minnesota, the  problem is that if Minnesota is really in play and Biden needs her to hold the state then the Democrats are in real danger of losing the presidency.  Minnesota is a must-win state for Biden.

            Finally,  the police choking of George Floyd has all but ended Klobuchar as a viable vice-presidential candidate.  This racial incident, in the county where Klobuchar was a prosecutor, will only highlight the vulnerabilities the senator has with Black voters.  Biden is going to be under even more pressure to pick a person of color as vice-president and he needs  the Black vote to win.

            Amy Klobuchar may be a fine senator and perhaps would have made a good president or maybe even a vice-president.  Yet the issue is whether she can help Biden and Democrats is a  different question and  here it is not clear she can add to the ticket.

There’s no right to vote by mail. New lawsuits could change that

My latest appeared in the Washington Post's Monkey Cage on May 27, 2020.

Do Americans have a right to vote by mail in a pandemic? Yes and no.

Last week, President Donald Trump attacked voting by mail, threatening to withhold federal funds from Michigan and Nevada if they expand such voting to help slow the pandemic – arguing, without evidence, that doing so increases fraud. Meanwhile, Senators Amy Klobuchar and Ron Wyden have introduced a bill to expand such voting in federal elections so that, as they wrote in the Washington Post, no one should “have to choose between casting a ballot and protecting their health.” Meanwhile, older Minnesota voters and Texas citizens lacking immunity or otherwise fearing covid-19 infections have filed lawsuits asserting that since voting in person is dangerous, they should have a right to mail voting.

Is there a right to vote by mail?  So far, no – but that could change. Here is what law says now.

Is there a right to vote? Yes and no.

This is a complicated question. Nowhere does the original Constitution or Bill of Rights expressly state that there’s a right to vote. Originally, state legislatures chose senators and members of the electoral college, who chose a president. The states were left to decide who had a right to cast a ballot.

Over time, court decisions and constitutional amendments have changed that, expanding the right to vote. In 1941, the Supreme Court found that the Constitution’s Article I, section 2 gives citizens a right to vote for members of the House of Representatives. In 1966, the Court declared the First Amendment protects a right to vote in state and local elections.  The 15^th, 19^th and 26^th Amendments made it unconstitutional to deny the right to vote on the basis of race (1870), sex (1920), or age (1971). The 17^th and 24^th Amendments have given people the right to vote for their U.S. Senators (1913) and banned poll taxes (1964). And the 1965 Voting Rights Act expanded voting rights for people of color.

The right to vote can be regulated.

However, the right to vote is not absolute. The Supreme Court has ruled that states can deny the vote to individuals such as ex-felons. States can require photo identifications to prevent voter fraud, and can ban write-ins voting for candidates not listed on the ballot. Further, states can impose routine administrative limits such as the time, manner, place, or means of voting. Unless the regulation imposes a severe burden on voting rights, some regulation is permitted.

Further, citizens still have no individual right to vote for president. State legislatures have the discretion to allow citizens to vote to select the electors who will then select the president of the United States. And as the Supreme Court reminded us in 2000’s Bush v. Gore, when it ruled that Florida’s method of counting disputed presidential ballots was unconstitutional, states also have the authority to take that right away.

Given all these qualifications, U.S. citizens’ right to vote is strongest for in-person election day voting. This is where right is the most protected but even there it can be restricted. For example, states can ban write-in votes.

Absentee and early voting are merely privileges, not rights.

So far the courts have not ruled that there is a fundamental right to vote absentee, early, or by mail. All these are privileges subject to strict compliance with states’ regulations, including such requirements as valid signatures or submission deadlines.

Now, various groups across the country are arguing that there is a right to vote by mail. In lawsuits, they claim that the threat of coronavirus infection if they must vote in person imposes a severe burden on their right to vote, thereby violating their 1st, 14th or 24th Amendment rights.

While the Constitution lets the states determine the time, place and manner for holding elections, Congress may alter these regulations. But the Supreme Court has said that Congress may only regulate federal, not state, elections -- and so Congress could not force states to allow voting by mail for those states’ own elections. It could only require  vote by mail in federal elections.

But state constitutions may require voting by mail.

Nearly all states have explicit constitutional clauses that grant a right to vote. In some cases, states supreme courts have used these clauses to protect voting rights beyond what federal law or the Constitution requires. Some states, like Oregon, already conduct all elections by mail; other states or courts could change their laws to allow that.  A North Carolina group is suing under its state constitutions for this.   There are similar suits in Minnesota, Tennessee, and Missouri, among other states.

Some opponents of vote-by-mail say they’re worried it will increase voter fraud. Numerous studies have found little evidence of voter fraud  in U.S. elections, especially for in person voting. While some studies suggest a bit more risk of fraud with absentee or mail-in ballots, little evidence suggests such voting would lead to widespread fraud. Studies of states currently voting by mail find very little fraud.

What does this mean for the pandemic and the 2020 election?

Overall, there is no right to vote by mail. But a lawsuit might be able to establish that right under either federal or state law -- if the parties can prove to judges that the covid-19 pandemic has severely limited the right to vote.

Trump is not the Pope and it's not the Middle Ages Anymore

            President Trump orders governors to open up the churches.  Churches defy governors and seek to open.  Someone needs to remind both the president and religious institutions that the Middle Ages are over and Modernity won.

            President Trump and many religious institutions are pushing arguments reminiscent of those found in the Medieval Christian Europe where secular authority was subservient to the Pope and Church Law.  Then the Pope claimed that he received his authority from God and princes and secular governments received their authority from the Church.  Myths such as the Donation of Constantine, Pope Gelasius I’s Doctrine of Two Swords, or the biblical injunction “ "Render to Caesar the things that are Caesar's; and to God the things that are God's" (Romans 13:1) endorsed the supremacy of Church over State.  The Church excommunicated disobedient rulers, and in 1076 King Henry IV suffered in snow on the road to Canossa, seeking absolution from Pope Gregory VII.  Those were the glory days for the Christian church.

            Yet beginning with Edict of Nantes (1598), the English Glorious Revolution of 1688, and John Locke’s A Letter Concerning Toleration, (1689), the hallmark of Modernity in the West has both been the separation of church and state and equally important, the primacy of secularism and limits on the ability of religious institutions to enforce their doctrines with civil implications and penalty.  Neither should the government enforce religious doctrine nor religion impress itself upon anyone beyond its membership.  This balance is captured in the First Amendment to the US Constitution which guarantees free exercise of religion but also bars the government establishment of religion.

            Individual rights are important, but as former Supreme Justice Scalia points out in District of Columbia v. Heller, no rights, be that in the Second or First Amendment, are unlimited (595).  There may be an individual right to own guns but the courts have ruled that felons and minors may be denied a right to possess or use, and the types of  arms may be regulated.  Free speech is a cornerstone of  a free society, but it does not entail  the right to advocate imminent lawless behavior and engage in true threats to others that threaten their health or safety. The same is true for the free exercise of religion.

            In general, individual rights are subject to limits under extraordinary circumstances.  To limit a right (not eliminate it ) the government must show a compelling governmental interest that is narrowly tailored and which is the least restrictive means of securing that interest.  Phrased otherwise, the government  must show a reason so important to limit a right and that there is no other way to accomplish it except by the action it  wishes to take.  This is called the strict scrutiny test. Restricting rights is supposed to be difficult and when strict scrutiny is employed, as legal scholar Gerald Gunther once said,  “it is often fatal in fact,” meaning seldom do or should the government win.

            Over time the Supreme Court has rightfully struck down many laws regulating free exercise of religion.  But it has held that neutral regulations that do not specifically target religion may be upheld.  These include  mandatory vaccination laws, required medical treatment for minors, laws regulating polygamy and illegal acts, and the use of illegal drugs.   Moreover, while Title VII of the 1964 Civil Rights Act authorizes churches, synagogues, and mosques exemption from the law's prohibition on religious hiring discrimination when it comes to hiring for their own organization,  the law did not give them carte blanc to discriminate.  Nor has the Court ruled that there is a general religious exemption from civil rights laws, and it has ruled that giving religious organizations a veto over some local laws is unconstitutional. These are all cases where the practice of religion may impact the health or safety of others and in some cases neutral secular laws promoting the health, safety, and welfare of the people prevail.  Wrongly the Court has opened up the ability of religious belief to impact the health and rights of women in  Burwell v Hobby Lobby, emboldening  some to think there  is a broad right to defy laws to protect the public.

            This is the situation here when it comes to religious institutions claiming  veto over  laws limiting the scope of religious services during a Covid-19 pandemic.  These laws are not specifically targeting religion and there are not banning religious services from occurring.  They are reasonable laws aiming to protect the public.  Effectively this is what the Ninth Circuit Court of Appeals said in refusing to enjoin a California executive order restricting religious services during the pandemic.

            In Minnesota and across the country churches and other religious institutions are asserting their right to defy the government and open.     This is not the same as the historical role of Christian  civil disobedience where the order from secular authority was to disobey God or a law clearly in violation of God’s laws.  Covid-19 restricts are not prescribing religious orthodoxy, they aim to prevent public harm.  Those who assert a religious “get of jail free” card to do whatever they want  wrongly seem to think that they can live by their own set of laws and rules.  For those who fear Sharia law as overriding secular US law, the same  principle applies here. Government cannot target religious practice, and religion does not have a free pass from all government regulation.

            The Middle Ages was all about asserting religious authority over secular institutions.    Last I knew, Modernity won.

Covid 19 and Minnesota 2020 Legislative Session: How it changed everything and nothing

Covid-19 changed everything and nothing in the 2020 Minnesota Legislative session.  The state
entered the session with a partisanly-divided legislature preparing for the 2020 elections, and it exited on May 18, looking at a predictable special session to get its work done.

Where we were then and Where we are now

Remember where Minnesota in February 2020?  The State had an imaginary budget surplus of $1.5 billion+.  It was imagine because while inflation is counted for revenue but not obligations,  this surplus was barely 3% of the nearly $48 billion adopted biennial budget.  With inflation from 2019 and 2020 running at 2%, the real surplus was maybe $500 million.

The Minnesota DFL and Republicans were in a race to how to spend the money.  Child care?  Tax cuts?  Special education?  It was poised to be an election year spend to win year, with both parties hugely divided in terms of priorities.

But then in two fateful weeks in October it all changed.  Covid-19 hit and by April it was clear the state was not imaginarily $1.5 billion surplus, but $2.4 billion in the hole.  All non-related Covid-19 spending was out and the state was going to need to address the health crisis and think about what to do with this deficit.  The DFL House and the GOP Senate were so divided to the point of partisan wearing of masks or not.

By law, Minnesota cannot have an operating deficit.  It should have addressed this issue by May 17,  or run the risk of making it worse later on.  It did not.  It  did not adopt a bonding bill.  It also did not ratify the collective bargaining agreement with state workers.   It was divided over the Governor’s executive orders and the handling of Covid-19. It also  did not do a lot of other stuff, necessitating a special session.

Covid-19 may have changed the issues but it did not alter the pre-existing partisan geographic divide.  It only gave it a new face.

The New Normal or Special Sessionaplooza

It should not then be a surprise that yet again Minnesota is having a special session.  This is part of the New Normal that began in 1997-98.

Since statehood in 1858 we have had a total of 54 special sessions, including the anticipated one later this year.  This means that out of the 162 years of statehood, there is an average of one special session every three years (33.3%).

From 1858 through 1996 there were a total of 36 special sessions, averaging about once every four years (0.26).

From 1997 through and including 2020 (24 years), there have been 17  special sessions.  This means on average there are three special sessions out of every four years (75%).  I pick 1997-98 as a benchmark for what I call the new normal.  The new normal or era of MN politics begins in about 1997-98 with the election of Ventura as governor in 1998 and the GOP take over of the MN House.  This time period represents the point when DFL political power and influence waned in MN and the politics of the state became more polarized and divided.

Of the 53 special sessions that occurred since statehood. 22 or 45.2% were called to finish required work not completed during regular session.  Since 1997 nine out of 17 or 52.9% have been to complete budget matters that needed to be completed.  Two thoughts.  First, getting all the work done during the constitutional deadline has always been a problem but it is even more so in the last 21 years.  Second, it is clearly the case that in the last 20-21 years special sessions are far more frequent and have shifted from occurring on average once every four years to three out of four years.  Third, since 1998, we have had two partial governmental shut downs (one under Dayton in 2011, one under Pawlenty in 2005), and a near shutdown under Ventura in 2001.  Also under Pawlenty in 2009 there was a significant budget fight that involved his unallotment of money to balance the budget that was eventually struck down by the Minnesota Supreme Court in 2010.

Prior to 1997-1998 there were no government shutdowns in Minnesota history.  Minnesota also appears to be at the top or near the top–at least in the last 20 or so years–in terms of the number of shutdowns (2) plus a near shutdown (1).  In the entire history of Minnesota, there has been a total of five uses of unallotment, three occurred since 1997-1998.

So yes, it is clearly the case that the last 22 years does represent a new normal in many ways for Minnesota government, marked by the frequency of special sessions, shutdowns, use of unallotments.  Minnesota, right down to having the only party-divided state legislature in America, is a mini version of the USA as a whole.

What is Next?  Deja vu all over again

There will be a special session.  A deal on bonding bill is possible but not guaranteed.  But looming as even more pressing but ignored is the fate of the $2.4 billion deficit.  No one seems to be talking about how and when it will be addressed.  This is like 2002 all over again.

In 2002 in the last year of the Ventura administration the US and Minnesota economies crashed as a result of the 9/11 attacks.  The state had gone from a massive budget surplus to a growing deficit.  The Ventura administration responsibility proposed some tax increases and budget cuts to address the problem.  Roger Moe majority leader in the Senate, and Tim Pawlenty, majority leader in the House teamed up and punted.  They produced a phony bill that counted inflation for revenue but not obligations and delayed or pushed some spending into the next fiscal year, creating the illusion of a budget solution.  We have never recovered from that political expediency.

Look to see in this election year 201 legislators do the same.  They will delay the hard choices until after the election and into next year and make the budget problems worse than they are now.