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.

Trump and the Logic of Racializing of Covid-19 (Blame it on the Immigrants)

There are four truths regarding the United States.  One is that it is a nation of immigrants. Two, it is perhaps the hardest hit country in the world with the coronarius.   Three, it is the richest  nation in the world.  Four, there is a US presidential election this year. Put these  four truths together and what do you get in an America under President Donald Trump?  An effort to blame the spread of Covid-19 on immigrants and immigration, thereby racializing the pandemic to hide his mismanagement of the crisis.
The United States is a nation of others.  No one, except for the original Indians, is native here.  Everybody came from somewhere else.  America sees itself as a melting pot of races, ethnic groups, religions, and nations.  Its history is one of welcoming, as it says on the Statute of Liberty in New York–”your tired, your poor,  your huddled masses yearning to breathe free, the wretched refuse of your teeming shore.”  The US is a nation of others, of strangers who have come for the American Dream.
Reports document that the US already has had more than 800,000 infected with the coronarius, with nearly 50,000 dead.  In a nation so wealthy and powerful, many wonder how it could happen, placing  blame on President Donald Trump’s initial refusal to acknowledge the disease, and then his failure of leadership in confronting it.  As a result, Trump’s approval ratings have gone down, potentially threatening his chances at re-election this November.
Don’t count Trump out yet.    Instead of taking responsibility for the US pandemic, he is replaying his trick from four years ago, blame it on the other.  Four years he successfully ran for president by promising to build a wall along America’s Mexican border to halt immigration.  He called immigrants rapists, murderers, and drug dealers.  He attacked Muslims and sought to halt their immigration.  Trump ran on racism.  Now he is doing it again.
First Trump called the coronarius the “China Virus.”  He blames leaders in China for lying about the virus, says the World Health Organization for incompetence, and now he wants to halt immigration to the US for 60 days.  Obviously the coronarius is not our fault; it is the fault of others.  Trump is linking the coronarius to race and immigration much in the same way that four years ago he connected crime and the economy to race and immigration.
Yes in the past America screened immigrants who had health problems or infectious diseases and it might be legitimate to do that now.  But that is not what Trump is doing with the 60-day immigration ban.  In fact, the ban has a lot of exceptions to it and it is also not clear the president has the authority to issue the ban anyhow.  Instead, simply announcing the ban, like calling for the wall, is enough.  For his supporters, shifting the cause of the pandemic and the shutdown of the economy to immigrants is no different from what he said and did four years ago and it got him elected.  It might work again in 2020.

No New Yorkers May Enter: May States Ban Residents from Other States From Entering to Protect Their People?

            

            Viruses do not stop at borders.  But can people infected with viruses be stopped at borders?  Could Pennsylvania stop a New Yorker from entering the state  whether suspected or not of being infected to protect its people? Already some US states are trying to prevent residents from other states from entering as they seek to fight the coronavirus epidemic.  This problem of cross-border infection will only intensify as some states begin to open up their economies or end their shelter-in-place orders over the next few weeks.  Allowing infected or even healthy people to travel interstate could jeopardize  public health measures to confine the coronavirus.  Do states have the authority to limit or ban individuals from entering their state to fight the pandemic?  Current constitutional law says no.

            States have broad authority over public health measures.  What is called their police power allows them to impose  quarantines over persons and livestock within their borders to prevent the spread of a virus.  Many states have authority to limit importation from other states' vegetation and animals that could bring with them parasites or disease.

            Yet this police power is not unlimited, especially when it comes to interstate commerce.  The US Constitution gives broad authority to Congress to regulate interstate commerce, preventing states from interfering with it or discriminating against  other states in an effort to protect their own businesses.  Yet in some cases the Supreme Court has allowed for some interference with  interstate commerce if the purpose of the regulation is non-discriminatory and it does not impose a severe burden.  Would limiting or banning residents from other states to limit the spread of the coronavirus qualify as an exception?  The answer is no for two reasons.

            One, the general police power exceptions are limited to goods, services, or  the instrumentalities of commerce.  By that, states may be able to restrict the flow of animals, produce, vegetation, and other goods into their state, but the rules are different when it comes to people.

            Unlike animals, food products, and other goods and services, people have constitutional rights.  Specifically, they have a constitutional right to interstate travel.  In the 1930s when the Depression kicked in and the farm crisis across the central plains grew, many farmers packed up and sought to move to places such as California.  John Steinbeck’s classic The Grapes of Wrath tells the story of Joad family moving west.  In 1937 California passed what was called  an “Anti-Okie” law making it illegal to bring into the  state "any indigent person who is not a resident of the State, knowing him to be an indigent person".  In Edwards v. People of State of California, 314 U.S. 160 (1941), the  Supreme Court ruled that this law violated the Commerce Clause.

            In the 1960s as various states enacted welfare or other public assistance measures, some feared that the poor would migrate to their state for the benefits.  In Shapiro v. Thompson, 394 U.S. 618, (1968), the Supreme Court ruled that such laws violated a  fundamental right to interstate travel.  After Congress had enacted welfare reforms given states more control over benefits, California and other states adopted laws allowing them to pay  lesser benefits  to recent immigrants from other states compared to residents for a certain period of time.  The Supreme Court Sáenz v. Roe, 526 U.S. 489 (1999), struck down these durational residency requirements as a violation of the Privileges or Immunities clause of the US Constitution.

            While in some situations the Court has upheld laws that treat residents and non-residents differently in cases involving college tuition at public schools or in matters of child custody, generally the Court has been firm in ruling that actions that involve a state discriminating against residents of another state are unconstitutional.

            There may be additional clause of the Constitution that prevent  these border bans.  The Due Process clause of the Fourteenth Amendment may make random or arbitrary stops at state borders illegal. There is also the Equal Protection clause of the Fourteenth Amendment which is a tool used to address discrimination.  Unfortunately, and no doubt many of the individuals who will get stopped at state borders will be people of color.  There is also the privileges and immunities clause of the Fourth Amendment to the Constitution too.  The point is that there are many constitutional clauses banning this type of state activity.

            Perhaps the coronavirus and  the needs of  abating a pandemic  might be treated differently by the courts, seeing its regulation as a neutral protection of public health within state regulation.   After all, a pandemic virus is different from indigency or welfare.  It would take  an extraordinary argument to show that banning interstate travel is the only way to address the virus and current case law does not support that measure.

Covid-19 and the Presidential Election: What if the States Picked the Electoral College Delegates?

What if we held a presidential election but  no one came?  The April  7, Wisconsin primary demonstrated the problems that occur when the right to vote and demands of presidential elections confront the reality of Covid-19 and shelter-in-place orders.  What if the coronavirus persists to the general election, impacting the ability of individuals to early vote or cast a ballot on November 3?  Ultimately, the states could select the presidential electors, or Congress could pick the president.  If so, who wins?

            Many worry about several presidential election scenarios.  One is that President Trump will postpone or cancel it.  Alone he cannot do that  because the date of federal elections is set by law as the first Tuesday following the first Monday in November.  Alone the president cannot cancel or move this date, unless somehow the Supreme Court would rule that the National Emergencies Act would allow him to override a law.  If it did, the Court would be going against the Wisconsin Supreme Court’s logic when it prevented Wisconsin Governor Tony Evers from issuing an executive order delaying the elections, ruling that the emergency powers given to him only allowed a setting aside of administrative rules and not statutes.

            Postposing the presidential election also does not work for constitutional reasons.  Section One of the Twentieth Amendment states that the term of the president shall end at noon on January 20.  If there is no election there is no president or vice-president after that date, with the vacancy then filled by then Article II, Section One, Clause 6 of the Constitution along with the Presidential Succession Act that would hand the presidency to the Speaker of the House, presumably Nancy Pelosi.

            Others have proposed expanding vote by mail as an option for 2020.  Congress is unlikely for partisan reasons to approve this, and even if it did it is not clear if all states have the infrastructure or capability to implement in time.  There are also questions about security, potential fraud, and the federal government overruling state election bureaus and telling them how to administer federal elections.

            There is one final failsafe—instead of holding elections to chose the presidential elections to pick the president, the states can go back and do what they originally did and what the Constitution allows—pick the electors themselves.

            Article II, Section One, Paragraph two entrusts to  state legislatures the authority to select the presidential electors.  As the Supreme Court reminded America in Bush v. Gore:  The “individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.”  It is merely by the grace of  state law we get to vote to select the electors who pick the president.  But nothing requires this, and presidential elections in the age of Covid-19 means state legislatures, in a public health crisis, could simply select the electors themselves.

            While letting state legislatures pick the electors may not be a good idea, consider what would happen if they did. It takes 270 electoral votes to win the presidency.  According to  Ballotpedia, there are 21 states where Republicans have a trifecta—controlling both houses of the legislature and the governorship—and Democrats have that in 15 states.  Assuming in those 36 states straight party line votes would award electoral votes by party, Donald Trump would start with 216, Joe Biden, the presumptive Democratic nominee, would have 195.  This leaves 14 states, with 127 electoral votes under split control.  These states are: Alaska, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Montana, New Hampshire, North Carolina, Pennsylvania, Vermont, and Wisconsin.  Again, according to Ballotpedia, of these 14 states, there are several where the legislatures have large enough majorities that they can override  the governor.

This means  move Kansas’ and Kentucky’s electoral votes to Trump since the Republicans control both house of the legislature and a simple majority can overrule the Democratic governor, and he  has 230.  Move  Maryland and Massachusetts to Biden along with  District of Columbia’s three electoral votes and he has 216.  This leaves 10 states, with 92 electoral votes under split control.

How might those remaining states vote?  Assume a compromise in each state where they allocated proportionally based on congressional districts and splitting the two electoral votes each state receives based on having two senators.  This adds ten electoral votes to each (Trump 240, Biden 226).  Now assume the distribution of electoral votes in these remaining ten states follows the congressional voting patterns in 2016.  Of these 72 districts, Trump won 50 in 2016 and Clinton  won 22.  Award these  the same to Trump and Biden and  2020, Trump wins the presidency with 290 electoral votes to Biden’s 248.

Alternatively, assume these ten states cannot hold November 3, elections and cannot reach a compromise on  how to award the electoral votes.  With neither Trump nor Biden possessing the required 270 electoral votes, Article II, Section One, Paragraph Three and the Twelfth Amendment call for the House of Representatives to pick the president, with each state getting one vote and the winner needing a majority of the states.  However, this is the House elected in November 2020, and they would not vote until sworn in, in January 2020. Currently, even though Democrats have an overall majority in the House, Republicans maintain a 26-22 partisan majority control of state congressional delegations, with Michigan and Pennsylvania tied.  Assume no shift in partisan control, Trump wins. 

Canceling the popular vote to select the electors and decide the presidential race is a highly unlikely scenario.  But were it to occur the odds presently favor a Trump victory again in the electoral college, or  possibly in the House were it to go that far.

Is It Ever Ethical For Government Officials to Lie in the Name of the Public Good?

May government officials lie for the public good?  Responses to the Covid-19 crisis raise this question.  President Trump was accused of downplaying the pandemic to avert panic. The Minnesota Department of Health initially refused to name assisted living facilities in the state infected with the disease to protect privacy and perhaps to downplay fears.  No matter how noble or well-meaning, it is never appropriate for government officials to lie in the name of the public interest. 

Lying is considered wrong.  Yet white lies, such as “Yes Virginia, there is a Santa Claus,” are accepted to promote happiness.  Lies to children, the ill, or vulnerable are deemed okay to protect them. Hyping a resume or product is  defended  to get a job or sell a product. At one time it was acceptable to lie to dying patients so as not discourage them, but that is no longer a permissible medical ethics practice.  Despite a general cultural admonition to tell the truth, we create many exceptions to that rule.

Do these exceptions extend to public officials?  Is there a just lie? Should elected officials be allowed to lie to the public during the Covid-19 pandemic to shield them from bad news, prevent panic, or encourage them and make them feel better?  However tempting, lying in the name of the public interest is wrong.

“You can't handle the truth” is the most famous line from the 1992 movie A Few Good Men.  Lying for the public good is premised upon this notion. The public cannot handle the truth, candor can be destructive, and lying will produce more good than bad.  Lying to the public, for good reason or intention, promotes good social outcomes in dire times, such as with the death and destruction associated with the Covid-19 pandemic.

There are several problems with arguing that lying to the public is ethically permissible.
One, the correctness of lying is justified is left up to public officials and not the people to decide.  How do we know they are making the right decisions about what the public can bear if the latter lacks the information to make a judgement on what is right or wrong?

Two, how do we know the public official is lying or withholding information for the right reasons or motives?  It is easy for an official to say that my motives are well-meaning, but is that always the case?  Might not the basis for withholding information be to hide mistakes, avoid accountability, or simply further one’s own electoral or political interests?  Letting public officials decide on the rectitude of their lies is a form of conflict of interest, letting them be the final judge of whether they are acting in the public good or abusing their position.

Three, once a public official has lied, they have lost all of their credibility.  Years ago a local school superintendent lied to the public about a possible shooter in that district.  In closing the schools the superintendent offered a different reason for the closure.  Afterwards many said they could never trust the superintendent again.  How would they know in the next emergency or even routine decision whether the answer was truthful or a lie?  In part the erosion of public confidence and legitimacy of government stems from questionable veracity.

Four, lies might put more people at risk than telling the truth. People act in reliance on information they receive from public officials.  Giving false or misleading information may force people into making choices or assessing situations that put them at more risk than would telling the truth.

Five, in a free society the public is entitled to the truth and adults need and deserve correct information to hold the government accountable and make the appropriate decisions.  Lying for the public good treats adults like children, asserting they and not adults know what is in their own best interest.

Overall, perhaps withholding information to protect privacy is permissible and when at war to protect troops or  trick the enemy.  But intentional lying to the public is never justified as an ethical policy choice. 

Albert Camus in the Age of Covid-19

Truth may be stranger than fiction as Mark Twain once said.  Yet fiction often speaks truth to  reality.   In the case of civilization living under the dagger of Covid-19, many are turning to books and plays for distraction and pleasure.  While some might read Waiting for Godot in hopes that the quarantines and the disease will soon pass, or  Sinclair Lewis’ account of malaria in Arrowsmith, a better read would be both  Albert Camus’s The Plague and The Stranger.  Together they capture the absurdity and tragedy of life in the age of Covid-19, one full not necessarily of one where people pull together but instead cast a wary eye toward others, seeing in others the face of death or danger.

            Albert Camus (1913-1960) was a French playwright and existential philosopher.  While born in Algeria, he was in Paris when the Nazis invaded, fleeing the city and becoming a member of the resistance and underground.  He, along with Jean-Paul Stare, were two of the most famous exponents of French Existentialism, a theory of philosophy that rejected any inherent meaning to life as well as emphasizing often the tragic incoherence of human existence.    French Existentialism was  honed during WW II at a time when France and the world were literally fighting a battle for existence, with Nazi Germany vowing a final solution for Jews and the reality of death everywhere.

            As part of the French Underground Camus had to constantly fear others.  Who were your friends or enemies?  Could someone you thought be loyal rally be a spy or simply turn on you for no apparent reason.  Instead of finding comfort in others the French Resistance instilled a sense of paranoia and fear of others.  The look of others, their close contact, or trusting them too much could result in a betrayal.  Strangers were to be feared and contrary to Blanch DuBois of  a Street Car Named Desire, one should not rely upon their kindness.

            The Stranger is the story of Meursault, a person who receives a telegram that his mother has died.  He goes to her funeral, meets a woman with whom he becomes involved, and then faces trial for the killing of an Arab.  As Camus describes the murder:

On seeing me, the Arab raised himself a little, and his hand went to his pocket. Naturally, I gripped Raymond’s revolver in the pocket of my coat...After all, there was still some distance between us....I couldn’t stand it any longer, and took another step forward. I knew it was a fool thing to do.”

The two, the Arab and Meursault, both fear one another and their glances  for reasons not completely known. There is no premeditation for the murder, as becomes clear in Meursault’s trial.  The absence of a viable  explanation is used as evidence of callous indifference for life that leads to his conviction and execution.    Yet distrust, paranoia, or simply the fear of the look or glance of the other and not knowing what he might do is perhaps the real reason.  The look of the stranger might simply be the most primordial rule of survival, kill or be killed.

            Fear of the other is central also to Camus’ other major play, The Plague.  Here, a fictionalized account of a plague spread by rats running rampant through a community  spews fear of one another as they are seen as a source of disease.

He has an insight into the anomalies in the lives of the people here who, though they have an instinctive craving for human contacts, can't bring themselves to yield to it, because of the mistrust that keeps them apart. For its common knowledge that you can't trust your neighbor; he may pass the disease to you without your knowing it, and take advantage of a moment of inadvertence on your part to infect you.

The Stranger but especially The Plague are stories for our times as Covid-19 ravages across the world.  The Plague follows  the pattern of the five stages of death described by Elizabeth Kübler-Ross and then told in the 1979 All that Jazz with Roy Scheider fictionalizing Bob Fosse.  It is  how a community goes from denial, anger, bargaining, depression and to acceptance that the plague is real and will kill.  This is Trump’s world.  It is a blend of Camus and  a  Kübler-Ross in an absurd political tragedy in the age of Trump.

            When the plague first breaks out in Camus’ play, denial was the word of the day.  So too was it with Donald Trump.

No one wished to acknowledge the disease.  Yet “when the Ransdoc Bureau announced that 8,ooo rats had been collected, a wave of something like panic swept the town.  There was a demand for drastic measures, the authorities were accused of slackness, and people who had houses on the coast spoke of moving there, early in the year though it was. But next day the bureau informed them that the phenomenon had abruptly ended and the sanitary service had collected only a trifling number of rats. Everyone breathed more freely.

A mere false alarm.  But the false alarm was not.  It could no longer be denied. 

The word "plague" had just been uttered for the first time. At this stage of the narrative, with Dr. Bernard Rieux standing at his window, the narrator may, perhaps, be allowed to justify the doctor's uncertainty and surprise, since, with very slight differences, his reaction was the same as that of the great majority of our townsfolk. Everybody knows that pestilences have a way of recurring in the world; yet somehow we find it hard to believe in ones that crash down on our heads from a blue sky. There have been as many plagues as wars in history; yet always plagues and wars take people equally by surprise. 

Plagues are not what happen to us, it happens to the other, the stranger.  He is the one who brought it to us, be he the vagabond, the foreigner, the immigrant, or simply someone who is not us.  For Trump, Covid-19 is the Chinese disease  Plagues are not homegrown directed at the righteous.  Plagues from Biblical times have been brought as a revenge by God against a people who did something wrong,  yet we are the innocent ones.  We are the Shining City on the Hill, the plague must be the result as Christian Pastor Rick Wiles tell us in an Elmer Gantry way, to  punish humanity for its sins or, as in the case of Jerry Fawell, Jr.  A plot by North Korea.  It is not our plague; it is from the stranger.

            Denial takes many shapes.  It is not simply denial that the plague exists, but that if it does, it will be short term.  It will be not too bad as Trump said of Covid-19, or maybe a few cases will increase or go down, or whatever.  It will be short-lived; we can reopen America and go back to work soon.

When a war breaks out, people say: "It's too stupid; it can't last long." But though a war may well be "too stupid," that doesn't prevent its lasting. Stupidity has a knack of getting its way; as we should see if we were not always so much wrapped up in ourselves. 

            Maybe it will end soon as the president hopes. But as reporters questioned his responses, Trump lashed out, angered that anyone could question his administration or its competence.  Anger too is that somehow this Covid-19 plague will hurt Trump’s reelection.  Maybe it just doesn’t exist and if we close our eyes and plug our ears a “pestilence isn't a thing made to man's measure; therefore, we tell ourselves that pestilence is a mere bogy of the mind, a bad dream that will pass away.” Were it to go on too long it might  hurt not just lives and the economy but more importantly, his political prospects for re-election?  Covid-19 simply was a partisan plot as FOX’s Trish Regan declared to hamper Trump’s reelection.  Maybe as Sean Hannity and others hoped, it would soon pass.

Nevertheless, many continued hoping that the epidemic would soon die out and they and their families be spared. Thus they felt under no obligation to make any change in their habits as yet. Plague was for them an unwelcome visitant, bound to take its leave one day as unexpectedly as it had come. Alarmed, but far from desperate, they hadn't yet reached the phase when plague would seem to them the very tissue of their existence; when they forgot the lives that until now it had been given them to lead. In short, they were waiting for the turn of events.

If denial and anger do not work, bargaining might work.  Covid-19 is a test of American character and resolve, proof of the superiority of our way of life.  Pull together, like we did during WW II, and it will be the good plague, the one that transcends partisanship and brings us together in death and sacrifice.  We can win this good fight, deluding ourselves into thinking that self-exile was a product of free will and not necessity.  Bargaining is also the name of the game when it comes to states receiving needed supplies.  Trump has demanded that governors be grateful in return for help.

Thus week by week the prisoners of plague put up what fight they could. Some, like Rambert, even contrived to fancy they were still behaving as free men and had the power of choice. But actually it would have been truer to say that by this time, mid-August, the plague had swallowed up everything and everyone. No longer were there individual destinies; only a collective destiny, made of plague and the emotions shared by all. Strongest of these emotions was the sense of exile and of deprivation, with all the crosscurrents of revolt and fear set up by these.

Death is not a choice.  And as seen first in Italy and now in New York City, the solemnity of funerals turned into depression and acceptance.  Depression and acceptance at the prospect that deaths would occur there, but nationwide too that 100,000 to 200,000 will die.

Actually the most striking feature of our funerals was their speed. Formalities had been whittled down, and, generally speaking, all elaborate ceremonial suppressed. The plague victim died away from his family and the customary vigil beside the dead body was forbidden, with the result that a person dying in the evening spent the night alone, and those who died in the daytime were promptly buried. Needless to say, the family was notified, but in most cases, since the deceased had lived with them, its members were in quarantine and thus immobilized.

            Moreover, depression and acceptance are the reality that the response to it is too little and too late.  It is also the reality that while Covid-19 itself might be the great equalizer, treating the rich and poor alike, the burdens upon how it will wear upon people will not be so egalitarian.

Meanwhile the authorities had another cause for anxiety in the difficulty of maintaining the food-supply. Profiteers were taking a hand and purveying at enormous prices essential foodstuffs not available in the shops. The result was that poor families were in great straits, while the rich went short of practically nothing. Thus, whereas plague by its impartial ministrations should have promoted equality among our townsfolk, it now had the opposite effect and, thanks to the habitual conflict of cupidities, exacerbated the sense of injustice rankling in men's hearts. They were assured, of course, of the inerrable equality of death, but nobody wanted that kind of equality.

The winners and losers of Covid-19 simply replicate the that already existed in our society.  Accepting that this tragedy would be an occasion for significant political reform was a fantasy at best.

            What we learn from reading The Stranger and The Plague is that there is a script to human nature.  It is the script of  Kübler-Ross that plays out with every tragedy.  How we respond to events like Covid-19 is like living in the movie Groundhog Day, where we simply relive and reenact a series of scripted events that prove that Hegel was correct–the only thing we learn from history is that we don’t learn from history.