Tagged: Boston University

Massachusetts Regulates Short-Term Rentals

April 17th, 2019 in Analysis, Local Legislation, News, State Legislation

Massachusetts’s Governor Baker signed An Act Regulating and Insuring Short-Term Rentals on December 28, 2018. The act regulates short-term rentals provided through services like Airbnb. The governor rejected an earlier version of the bill, and returned amendments primarily allowing for an exemption for owners who rent out their property for two weeks or less per year, and reducing the amount of information provided publicly about rentals owners.  The bill was motivated by concerns that the rise in short-term rentals drives up housing costs and pushing out long-term residents. The statewide bill comes after both Boston and Cambridge individually passed laws essentially having the same effects. However, the Boston law was challenged by Airbnb, who filed suit in federal court claiming that the regulations are “Orwellian” and violate several laws, including laws that protect online companies from being held liable for the actions of their users. The city of Boston is currently holding off on some of the regulations passed pending the resolution of the court case. Airbnb had not yet said if it will challenge the new Massachusetts law.

The statewide law has two main components: first, that all short-term rentals are taxed by the Commonwealth, and can be additionally taxed by local governments, and second, that all owners of short-term rental properties must register with the state and hold insurance. The registration requirement was a cause of debate. Lawmakers, including Governor Baker, were concerned about violating the privacy of owners by publishing their names and addresses publically. In the amendments to the July bill that Governor Baker rejected, the registration requirement was changed so that only the owner’s neighborhood and street name would be published, not their exact address. The law also dictates eligibility in order to register. To be eligible to be a short-term housing unit, the space must be compliant with housing code, be owner-occupied and be classified for residential use, among other requirements. Another cause of debate was an exemption for occasional renters. Governor Baker originally wanted owners who rent their properties for 150 days or less to be exempt from the regulations. However, in the final version of the bill, the exemption was decreased to 14 days.

Not surprisingly, the hotel industry supports the bill. Paul Sacco, the President and CEO of Massachusetts Lodging Association, said:

“This is a tremendous victory for municipal leaders and the people of Massachusetts who have been waiting for years while Airbnb rentals have exploded, resulting in skyrocketing housing costs and disruptions in local neighborhoods. By adopting a more level playing field between short-term rentals and traditional lodgers, lawmakers made great strides toward a more fair and sensible system.”

Airbnb had a far less enthusiastic response however. In citing concerns about the property owners who use Airbnb to earn extra income, Airbnb said that they would “continue the fight to protect our community and the economic engine of short-term rentals for hosts, guests, and local small businesses”

While Massachusetts is the first state to pass a law, many other cities have passed similar laws in the recent years. In Nashville, the city passed a law in January which focused on taxing short-term rentals that are not owner-occupied in order to fund affordable housing development in the city. The “linkage fee” tax is controversial, with lawmakers questioning if the fees generated are enough to actually impact the lack of low-income housing within the city. Seattle passed a similar tax law in November 2017. The legislation aims to encourage owners who rent out a spare bedroom and discourage investors who buy entire buildings for use as short-term rentals. Finally, New York City passed regulations in July 2018 which requires Airbnb, and other similar companies, to provide information about the properties listed for rental within the city. However, Airbnb sued in federal court claiming that the requirement to provide information to the city violated the company’s fourth amendment right against search and seizure. The law was set to take effect in February 2019, however the Judge granted a preliminary injunction in favor of Airbnb saying, “The city has not cited any decision suggesting that the government appropriation of private business records on such a scale, unsupported by individualized suspicion or any tailored justification, qualifies as a reasonable search and seizure.”

Jessica A. Hartman is a member of the Boston University School of Law Class of 2020.

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Raising the Blinds – Gaining Meaningful Insight into Pharmaceutical Pricing through Legislation

February 7th, 2019 in Analysis, Federal Legislation, Legislation in Court, Lobbying

Rising healthcare costs are a growing concern across the United States; in 2016 U.S. health care spending was $10,348 per person – or 17.9 % of the nation’s Gross Domestic Product (GDP). To counter this alarming rise in healthcare costs, states are addressing one of the largest factors in rising healthcare costs – high drug prices. 

Many factors contribute to the high price of healthcare in our country, some of which are natural to an aging populace due to the baby boom of the 1950’s as the proportion of the population that is 65 and over is projected to experience a large increase in the coming years. An increase in costs is natural with a larger number of consumers – addressing this change is an important, but avoidable, challenge to overcome.

One avoidable factor of increasing healthcare costs is rapidly increasing pharmaceutical prices. Variance in drug prices may be geographic; based on where the drug is sold , or whom the drug is being sold to (pharmacy v. government). Many factors contribute to price differences, but an important factor are Pharmacy Benefit Managers (PBMs) as an intermediate in the market. States have been working to roll back the PBM layer of the market for  the pharmaceutical industry.

Pharmaceutical pricing has long been the target of legislators, but with a lot of talk and a surprising lack of action. Drug pricing is  discussed in both major party’s campaign platforms of the major parties and has been featured prominently in speeches by President Trump, and has featured in initiatives by previous administrations. There has been an uptick of legislation passed in the past decade, at all levels of government, with state action against pharmacy benefit managers and President Trump’s signing the Know the Lowest Price Act and the Patient Right to Know Drug Prices Act.  A common thread in the legislation is increased transparency because a big factor in the high drug prices — and medical care generally—is the lack of information for consumers and purchasers. Since 2015, California, Oregon, Louisiana, Nevada, Vermont, Connecticut, and Maryland imposed reporting requirements on pharmaceutical manufacturers who increase prices over an established threshold in a set time period. For example, California requires reporting when a drug that costs more than $40 and its wholesale acquisition cost (WAC) increases by more than 16% over two calendar years.  The WAC is similar to a “list” price for pharmaceuticals to wholesalers and direct purchasers. The WAC, however, does not include discounts or rebates offered by pharmacy benefit managers.

The new transparency offers insight to price increases; if there are no legitimate reason for the increase other than higher profits due to market control, state officials, drug customers and the public can take action.

The states with transparency statutes have imposed different methodologies with manufacturers reporting to different government officials such as the Department of Health and Human Services, creation of new departments, or to the state’s Attorney General.

Oregon currently requires the most detailed reporting; manufacturers must report to the Department of Consumer and Business Services the following:

  1. Name, price of drug and net increase in price (in %) over previous calendar year
  2. Length of time on market
  3. Factors contributing to price increase
  4. Name(s) of any generic version(s) of the drug
  5. Research & Develop Costs from Public Funds
  6. Direct costs to Manufacturer
  7. Total sales revenue for drug over prev. calendar year
  8. Profit from drug over previous calendar year
  9. Drug's price at release and yearly increases over the past 5 years
  10. 10 highest prices paid for the drug during past year outside of the US
  11. Any other info relevant to price increase
  12. Supporting documentation

In contrast, California’s requirements provide for advance notice of price increases and unearthing the reasoning for the increase. The California law requires manufacturers to report (A) Date of increase, current WAC, and future increase in WAC (in dollar amounts); and (B) The change or improvement, if any, that necessitates the price increase. Purchasers then have notice of any forthcoming price changes and if the increase is warranted.  California also requires a report for new drugs if its price exceed $670—the 2017 Medicare Part D threshold.  California’s reporting scheme has been a model for other states.

Maryland’s approach was more severe, with a provision banning “price gouging” of generic drugs. An “unconscionable price increase” of any “essential off-patent or generic drug” is illegal and  Maryland can levy a fine and take action to reverse the price change. The state did not include any limitation of the law to drugs that have come into or passed through Maryland.

The generic drug lobby, the Association for Accessible Medicines, challenged the law and the Fourth Circuit Court of Appeals struck down the law as an unconstitutional regulation of interstate commerce. Maryland has petitioned the Supreme Court to revisit the case.

The Pharmaceutical Research and Manufacturers (PhRMA), one of the largest pharmaceutical lobbying groups, has sued California alleging the law, like Maryland’s, is unconstitutional. Because California’s law is informational—and does not allow forced price changes—it is likely constitutional. In fact, PhRMA’s initial complaint was dismissed, and subsequently filed an amended complaint on Sept. 18, 2018.

It will be imperative for states seeking to regulate pharmaceutical manufacturers to observe where courts determine the extent of reporting they may require when they go after a manufacturer for increasing the price of their drug. For the time being, it appears that information-gathering may be the easiest available avenue for states seeking to curtail increases in drug prices. Seeking justifications and reasoning for large increases in drug prices may create a barrier for pharmacuetical companies seeking to impose unsubstantiated increases in drugs. Going further towards affirmative control of pricing appears to be off limits to states going as far as Maryland, but more careful structuring of the controls to the specific state may be permissible.

 

Drew Kohlmeier is a student in the Boston University School of Law Class of 2020 and is a native of Manhattan, KS, graduating with a degree in Biology from Kansas State University in 2016. Drew decided on Boston for law school due to his interest in health care and life sciences, and will be practicing in the emerging companies space focused on the life sciences industry following his graduation from BU.

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Automatic Vote Registration is a Necessary Step in the Right Direction to Increase Voter Turnout

February 7th, 2019 in Analysis, State Legislation

In 2016, Donald Trump won the electoral vote, and therefore the presidency, because of fewer than 80,000 people spread over 3 states; about the same population as Scranton, Pennsylvania. While there are many ways to analyze this narrow margin, the most important may be that elections can be decided by a small number of votes. This fact makes it increasingly important that governments ensure every eligible citizen has the ability to conveniently vote. When 80,000 people can decide a national election, any obstacle that inhibits citizens from voting can drastically change who our representatives are. One recent effort in several states is automatic voter registration.  While not the solution to all voting problems, it is a worthwhile first step towards greater voter turnout.

In 2015, Oregon became the first state to adopt automatic voter registration.Since then, 12 more states and the District of Columbia have enacted similar legislation. Most recently, in August of 2018, Massachusetts Governor Charlie Baker signed an automatic registration bill into law. Automatic voter registration laws change the traditional opt-in registration methods into opt-out plans. The Massachusetts law, for instance, requires automatic registration for anyone who completes a transaction with the Department of Motor Vehicles (DMV) or signs up for state healthcare (MassHealth), unless they opt-out of registration . The law will take full effect in January 2020,  in time for the next presidential election.

Because automatic voter registration is a relatively new design model, the research into whether or not it actually increases voter turnout is limited. However, the initial research from the Center for American Politics (CAP) seems positive. According to early numbers, of the 272,000 people in Oregon who were registered through the automatic system, more than 1/3 of them (approximately 98,000 people)voted in the 2016 election . This same data also suggests that Oregon's automatic registration law has created a potential pool of voters who are more representative of the age, income, and ethnicity of the state’s residents. At the very least, there is clear and conclusive evidence to confirm that automatic voter registration will definitely increase the number of people who have the option of voting in the next election. Since 2016, Oregon’s registration rates have quadrupled at state DMV offices. There have been similar results in Vermont where, after only six months of its new system, registration rates rose 62% from the previous year . While the effect remains to be seen in Massachusetts, officials estimate that approximately 680,000 new voters will be registered because of the bill.

Despite these promising results, automatic voter registration has not been without its critics. Opponents are concerned about various issues such as fraud, duplicate registrations, and accidental enfranchisement for undocumented immigrants. Proponents believe that these concerns, however, are largely unfounded. To combat the risk of fraud and duplicate registrations, many states conduct their automatic registration through multiple governmental agencies that can all supply and confirm correct identifying information (such as changed addresses or last names). The Massachusetts law allows registration through two different agencies and also requires the state to link with the Electronic Registration Information Center (ERIC); a third-party nonprofit that will update and report changed voter information to the state. Concerns of accidental registration of undocumented immigrants are most heightened in places such as California, which allows undocumented residents to obtain drivers licenses while also providing automatic registration through the DMV. Election officials in California, however, state that all automatic registrations in California are cross referenced with voter eligibility databases the ensure that this fear cannot come to fruition.

Proponents of automatic voter registration argue that while the potential negative side effects of these laws are negligible, the benefits are huge. Automatic registration is a small, but highly effective, tool to help protect the most vulnerable from having their voting rights infringed upon. One important example of this can be found in the state of Georgia. Georgia has had automatic voter registration through the Department of Driver Services (DDS) since September of 2016. Prior to adopting automatic registration, the state required voter applications to meet extremely strict  “precise match” requirements.  Under these precise match requirements, applications ccould be held or rejected if they did not precisely match the information the state already had on file for that person. Applications were held up for trivial issues such as missing hyphens or a signature that looked slightly different. In 2016, The Secretary of state ended these precise match requirements just as the state began implementing automatic voter registration.

Georgia Capitol
Atlanta, 1889

During the 2018 midterm election Secretary of State Brian Kemp reinstated the practice of requiring precise match’s for voter registration and absentee ballots. This requirement caused widespread rejection of absentee ballots and mailed in voter registration applications-- more than 53,000 ballots and applications because of precise match reasons. While 32% of residents in Georgia are black, approximately 70% of the rejected applications were from black residents. This seemingly suggests that one of the greatest issues with automatic voter registration is simply that it doesn’t do enough on its own to prevent voter suppression.

While automatic registration can effect great change in terms of the number of people who are registered to vote, it is only a beginning, and not an end, to improve the problem of voter suppression and voter turnout. The decision whether or not to vote is almost as personal as the decision of who to vote for. All citizens should have the right to choose whether they want to vote in any particular election. When state laws and policies make it difficult for people to register, the government ends up taking the decision out of the hands of too many Americans. The move towards easier registration is an important one. For a country whose elections are decided by so few votes, it’s imperative that anyone who wants to vote, gets to.

Ashley Zink anticipates graduating from Boston University School of Law with a Juris Doctor in May 2020.

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Of Migration and Refugees: The Failure of Republican Deterrence Policy

February 7th, 2019 in Federal Legislation, Legislative Oversight

Despite two years of the Trump administration’s get-tough-on-refugees policy, the latest statistics continue to show record numbers of migrants crossing the U.S. border, with 16,658 family members in September, the highest one-month total on record and an 80 percent increase from July.This is just the latest in the periodic reports showing that Trumps immigration policy has failed, which should prompt questions both about why it has failed, as well as why Trump continues to insist on such a patently immoral approach to policy. Since at least 2014, Republicans have pushed for draconian treatment of border-crossers on the theory that such treatment will deter people from entering the United States. However, deterennce ignores the reasons why people are fleeing their home countries, and thus predictably fails, suggesting that the G.O.P. has adopted the policy in order to appeal to a segment of the voting public whose fear and hate have been amplified by right-wing propaganda.

Shortly after taking office, Trump quickly began to make good on his campaign promises to get tough on immigration, reversing what he termed Democrats’ soft approach. These policies included the end of Obama’s Deferred Action for Childhood Arrivals program, the end of Temporary Protected Status for hundreds of thousands of people, and the implementation of harsh treatment of immigration detainees at the border, including family separation, prolonged detention of asylum-seekers, the use of prisons as “detention” facilities, and a concentration of resources to increase prosecute border-crossers (and significant evidence of over-enforcement). The goal of such policies is apparently rooted in a belief that such policies will deter migrants from attempting to enter the United States, notwithstanding the lack of evidence that such deterrence is effective.

BBC.Com

These policies should be seen as derivative of the rhetoric of Republican critics of President Obama’s initial response to the so-called “surge” of children crossing the border in 2014. In early June, Obama originally declared the situation a humanitarian crisisand directed officials to apprehend and provide care, including housing and medical treatment, and legal aid. However, with right-wing propaganda outlets such as The Daily Caller whipping up fear of the children at the border, Republican politicians seized on the opportunity to make the humanitarian crisis into a political one. Claiming the crisis was due a failure of the Obama administration, politicians such as House Judiciary Chair Robert Goodlatte suggested that the solution was simply an end to “Obama’s lax immigration enforcement policies” and rigorous enforcement of the immigration laws. And, by the end of June, the Obama administration, feeling the pressure from the right, shifted gears and adopted a policy of deterrence. This crackdown included increased enforcement and wide-spread use of detention centers, as well as an information campaignto send a clear message to potential migrants so that they understand the significant dangers of this journey and what they will experience in the United States. This created little political traction for Democrats, as Republicans insisted that it was too little, too late, and that draconian deterrence measures were necessary.

The reality is that migration to the United States from Central America is largely driven by push factors forcing people out of their home countries, not pull factors luring them to the United States, which explains the lack of evidence for the efficacy of deterrence. As a worker at a migrant shelter in Tucson, Arizona is reported as explaining, Why would you undertake such a dangerous journey? When youve got a gun to your head, people threatening to rape your daughter, extort your business, force your son to work for the cartels. What would you do?While Trump insists on depicting migrants from Central America as gang-members, or even soldiers “sent” by their home countries in a mythical war on American interests, it is probably best to think of human beings fleeing their nations because of violence as asylum-seekers.

The Refugee Act of 1980 defines refugees and asylum-seekers to be those who are persecuted, or have a well-founded fear of persecution[,] on account of race, religion, nationality, membership in a particular social group, or political opinion.The law also provides a right to any alien within the United States to seek asylum, requiring those seeking such status to cross the border. Trump appears to see asylum, one of the basic pillars of human rights law, as a loophole to be exploited by evildoers, and is seeking to close that loophole,if not through legislation, then through deterring those seeking safe-harbor. Trump’s Justice Department, has moved to exclude domestic violence and gang targeting as bases for establishing persecution based on membership in a particular social group, overturning Board of Immigration Appeals precedent. On a moral level, there seems little reason to distinguish between the persecution faced by political dissidents in totalitarian regimes, and that faced by victims of the reign of terror perpetrated by gangs in Central America. Certainly, the pervasive fear of violence under both regimes is what drives people to seek safety in other countries. It is this push-factor, the pervasive violence faced by many Central Americans in their home nations, that is driving migration to the United States, and no amount of deterrence, short of recreating the violence of their home nations at the American border, will change the minds of those who feel forced to flee for their lives.

NBC News

That said, as Trump is able to feed on fear and hate in order to build political power with his Republican base, it is unlikely that evidence-based policy arguments about the efficacy of deterrence policy will make much headway towards a reconsideration of said policy. Perhaps a congressional re-imagination made possible by the new Democratic House majority will lead to legislative changes prompting a humane response to what is at base a humanitarian crisis. The House leadership’s recent refusal to appropriate money for what many consider a boondoggle border wall suggests that Democrats are eager to pass sensible border policy rather than acquiesce to Trump’s grandstanding. Congressional mandates that the executive branch again consider domestic violence and gang intimidation as possible bases in the determination of asylum would be a start. Shifting resources from detention centers to asylum officers and immigration judges, thereby treating asylum-seekers as asylees and not felons would help as well. And, in the long-run, Congress should consider how best to address the push factors causing people to flee for their lives in the first place.

 

Dan Ordorica anticipates earning his Juris Doctor from Boston University School of Law in May 2019.

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The Problems With Euclidean Zoning

July 19th, 2018 in Analysis, State Legislation

Since the1926 landmark Supreme Court case, Village of Euclid v. Ambler Realty Co., 272 U.S. 365,  it has been understood that the localities, municipalities, towns, and cities of the United States have the right to zone by dividing the town or community into areas in which specific uses of land are permitted. This is referred to as Euclidean zoning, and is considered the traditional and most common form of zoning in the United States. Euclidean zoning divides towns into districts based on permitted uses, and in so doing creates specific zones where certain land uses are permitted or prohibited. This can be helpful, as it enforces the separation of industrial land uses from residential land uses and can protect against pollution risks. However, Euclidean zoning has also exacerbated segregation issues, limited housing supply, and encouraged urban sprawl. Restrictions on minimum lot sizes, strict building codes, and other elements of Euclidean zoning have increased housing costs, limited new housing construction, worsened affordability issues, and increased the inequality divide in urban areas.

In Massachusetts, Euclidean zoning is the basis of General Law chapter 40A, the state’s zoning act. Chapter 40A encourages separation of land uses, and gives localities the ability to institute zoning within their borders. Given that Massachusetts has 351 towns, there are a wide variety of zoning bylaws throughout the state, based on each towns’ preferences and personal histories. Over time, Massachusetts’ state government has realized that the Euclidean zoning instituted by towns, aided and abetted by chapter 40A, has created neighborhoods that are dependent on cars and unsustainable. In an era of increased concerns about climate change, global warming, and greenhouse gas emissions, many people struggle to decrease their carbon footprint because they cannot get to the most basic goods and services, like groceries, schools, shopping, and work, without access to a car due to the enforced separation of uses within zoning districts. Separation of uses leads to urban sprawl, which is “the expansion of human populations away from central urban areas into low density monofunctional and usually car-dependent communities.” Increased urban sprawl has created patterns of development with extended infrastructure systems, increased impervious surfaces, and increased adverse impact on natural resources.

In response to concerns about Euclidean zoning, urban sprawl, and decentralization, Massachusetts’ legislature passed General Law Chapter 40R in hopes of encouraging changes in zoning and development patterns that would combat the impacts of Euclidean zoning. Chapter 40R’s purpose is to encourage smart growth and increased housing production in Massachusetts. Smart growth is a development principle that “emphasizes mixing land uses, increases the availability of affordable housing by creating a range of housing opportunities in neighborhoods, takes advantage of compact design, fosters distinctive and attractive communities, preserves open space, farmland, natural beauty and critical environmental areas, strengthens existing communities, provides a variety of transportation choices, makes development decisions predictable, fair and cost effective and encourages community and stakeholder collaboration in development decisions.”

The issue is that Euclidean zoning, is so ingrained it will be difficult for towns to change their entire structure. Chapter 40R tries to fit smart growth within the existing zoning structure by allowing towns and cities to create smart growth zoning districts in appropriate areas of the town. The state legislature attempts to help towns and cities ease into smart growth concepts by encouraging the development of a comprehensive plan, an affordable housing plan, and a vision plan for their community.

Massachusetts attempts to boost smart growth practices beyond using Chapter 40R. First is to amend the local bylaw. Communities could revise and amend their zoning bylaws to incentivize or require smart growth practices. Within zoning bylaws, communities can allow land uses “by-right” or “as-of-right”, which would permit land uses in a particular district without discretionary review. As such, the use may be regulated but cannot be prohibited. This method is the most predictable and easiest permitting method, so towns may permit land uses they want to encourage, like smart growth, as “by-right” uses. Using the “by-right” approach to make smart growth strategies easier to permit can make smart growth a more attractive option to developers who otherwise would have little incentive to use smart growth techniques when they are costlier and more time consuming to implement.

Another technique to boost smart growth would be to encourage site plan review as a procedure for getting smart growth developments approved. Site plan review is a “coordinated review of a development application between several local agents or boards.” Site plan review can potentially increase the amount and technical nature of the information submitted to the local boards, so communities should use caution in adopting this review technique. Site plan review can be used for “by-right” applications, as well as for special permit applications. “By-right” applications are more complicated, as the use is “by-right” and the reviewing authority does not have the power to deny the use. Once an application is deemed complete, the reviewing authority cannot deny the application, although the reviewing authority “may impose reasonable conditions that further the purposes and standards of the zoning code.” In short, site plan review, “as attached to by-right uses, should be viewed as essentially an administrative review,” and should be viewed as an opportunity for local boards to get more information about a development, not as a way to regulate or deny development.

Special permits were used in Chapter 40A to allow increases in the permissible density of population or intensity of a particular use; authorization of Transfer of Development Rights of land within or between zoning districts; and review of cluster developments, pursuant to the Subdivision Control Law. For smart growth, special permits can be used to enable innovative approaches, allow flexibility, encourage partnerships between developers and the community, provide incentives, and require specific design standards. Special permits are also useful for areas that are previously developed, and can allow redevelopment of preexisting nonconforming uses to encourage infill and active use of developed areas.

Chapter 40R’s main focus is on the use of zoning districts to encourage smart growth. This is done in conformity with Chapter 40A by allowing the creation of new districts or the use of overlay districts. Overlay districts lay on top of existing zoning and can cover many underlying districts or portions of underlying districts. This gives communities the ability to be flexible in regulating uses of land.

Euclidean zoning has been the norm in America for over ninety years, and while it has valuable features, its rigidity can and has exacerbated issues ranging from social issues like segregation, to environmental issues like urban sprawl. Changing this will be difficult, as Euclidean zoning has support for planning purposes as well as for class purposes, but techniques like smart growth, new urbanism, and statewide comprehensive planning can help combat these issues. Massachusetts has made a start at this by enacting Chapter 40R, but still has work to do on the statewide level to incentivize local communities to change their zoning or to make it easier for these zoning changes to occur.

Rachael Watsky graduated from Boston University School of Law in May 2018.

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The U.S. Postal Service is Staying Alive (for now)

July 19th, 2018 in Analysis, Federal Legislation, Legislative Oversight

During the Spring, President Trump has brought to the spotlight a little-discussed, quite unsexy policy dilemma: how to save the U.S. Postal Service.

In a series of Tweets, the President accused Amazon of unfairly taking advantage of the U.S. Postal Service. The first of these Tweets appeared on his Twitter feed on March 29th, and seemingly accused Amazon of shirking its tax responsibilities and free-loading from the government delivery service:

“I have stated my concerns with Amazon long before the Election. Unlike others, they pay little or no taxes to state & local governments, use our Postal System as their Delivery Boy (causing tremendous loss to the U.S.), and are putting many thousands of retailers out of business!”

President Trump also seemingly accused the Washington Post, which is owned by progressive billionaire Jeff Bezos, of engaging in secret lobbying. Although it is not entirely clear to which type of lobbying President Trump was referring in his March 31st Tweets, he seems to imply that the Washington Post is Amazon’s lobbying arm or propaganda machine that is helping Amazon to rip off the post office:

“While we are on the subject, it is reported that the U.S. Post Office will lose $1.50 on average for each package it delivers for Amazon. That amounts to Billions of Dollars. The Failing N.Y. Times reports that “the size of the company’s lobbying staff has ballooned,” and that...

“…does not include the Fake Washington Post, which is used as a “lobbyist” and should so REGISTER. If the P.O. “increased its parcel rates, Amazon’s shipping costs would rise by $2.6 Billion.” This Post Office scam must stop. Amazon must pay real costs (and taxes) now!”

After several news outlets, including the New York Times, published articles rebutting his statement that Amazon is not paying taxes (Amazon paid $957 million in income taxes in 2017) and is costing the U.S. Post Office billions of dollars per year, President Trump again asserted that he was correct, tweeting in part, “Only fools, or worse, are saying that our money losing Post Office makes money with Amazon. THEY LOSE A FORTUNE, and this will be changed.”

A few days later, he again tweeted that, “Amazon should pay these costs (plus) and not have them bourne by the American Taxpayer. Many billions of dollars. P.O. leaders don’t have a clue (or do they?)!” However, if one thing is clear, it is that the U.S. Post Office is not funded through taxpayer dollars, but through its own revenue. Still, the President is correct that the post office is losing money every year, specifically $2.7 billion in fiscal year 2017. However, it is unlikely that the bulk of that loss was incurred by conducting business with Amazon.

According to the U.S. Postal Service’s annual report for fiscal year 2017, its biggest losses came from fluctuating forces outside of its control. “The controllable loss for the year was $814 million, a change of $1.4 billion, driven by the $775 million decline in operating revenue before the 2016 change in accounting estimate, along with the increases in compensation and benefits and transportation expenses of $667 million and $246 million, respectively.” Mail volumes declined by 3.6%, while employee benefits and transportation costs have increased. On the other hand, the report indicated that package mail is up by 11.4%, providing “some help to the financial picture of the Postal Service as revenue increased $2.1 billion.” However, that growth has not been able offset other losses.

In other words, package companies like Amazon may actually be helping the U.S. Postal Service, even if they are receiving discounted shipping rates. By law, the Postal Regulatory Commission ensures that all items sent through the U.S. mail are profitable. Therefore, even if the U.S. Postal Service gives a discount to Amazon, those shipments will still be profitable to some degree. Whether the U.S. Postal Service should charge higher rates is a separate issue.

Postmaster General and CEO Megan J. Brennan described the report’s findings as “serious though solvable.” So, how can the government hope to save an agency that has not had a net surplus since 2006? The U.S. Postal Service is hopeful that H.R. 756, which was introduced to the House of Representatives by Rep. Chaffetz in 2017, and is being sponsored by Rep. Garrett in 2018, will pass and provide some relief by reforming postal service benefits, operations, personnel, and contracting. In addition, the Postal Regulatory Commission must adopt a new pricing system to generate additional revenue.

U.S. Senator Bernie Sanders has also pitched some ideas in the past, which are now catching the public’s eye in light of the President’s recent Tweets. Senator Sanders recently told Vice News that the post office should expand its services to generate more revenue. For example, the U.S. Postal Service could offer gift-wrapping services to capitalize on package shipments around the holidays. Additionally, "[t]he postal service could make billions of dollars a year by establishing basic banking services so lower-income people have access not to these payday lenders but to someplace where they can be treated with respect."

This idea is not new. In fact, until 1966, many U.S. post offices did offer simple banking services. Moreover, other countries such as Japan, the United Kingdom, France, and Italy currently use similar systems of postal banking with success. Senator Sanders emphasized that the post office must survive or else Americans living in rural areas, where it is not profitable to deliver mail, will face a decrease or elimination of mail services.

One former postmaster added that “[a]bsent a public infrastructure like the postal service network, it’s likely that both of these private sector firms (Fedex and UPS) would either refuse to serve many areas of the country or they would use their powers as an oligopoly to control prices.” In other words, if the U.S. Postal Service goes out of business, other mail carriers may be unable to fill the gap, or may only do so at inflated rates.

With so much at stake, it is daunting to imagine America without the U.S. Postal Service. We can only hope that Congress will step in and make the necessary reforms before it is too late.

 

Caitlin Britos anticipates graduating from Boston Univeristy School of Law in May 2019.

 

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Can Partisan Gerrymandering be Stopped?

July 19th, 2018 in Analysis, Legislation in Court, Legislative Operations, State Legislation

Attention to partisan gerrymandering has heightened as the next wave of redistricting fast approaches and the Supreme Court’s 2017-2018 docket included two cases regarding the constitutionality of partisan gerrymander. Following the release of the 2020 census, states will set out to redraw their district maps. States redistrict at least every ten years. The 2010 redistricting results are described as the most extreme partisan gerrymandering in our country’s history. The 2010 maps have a heavy Republican partisan advantage, as evidenced by the 2012 election results with Republicans gaining a 234 to 201 seat advantage in the House of Representatives despite Democrats winning 1.5 million more votes than Republicans. The Republican partisan advantage has remained strong. The Brennan Center for Justice has predicted that in the 2018 midterm elections Democrats will need to win by a margin of nearly 11 points to gain a majority in the House of Representatives. Democrats, however, have not won by a margin this large since 1974. Following years of heavily gerrymandered districts, a supermajority of Americans have indicated support for the Supreme Court to bring an end to partisan gerrymandering, yet the Court failed to take action this year.

Partisan gerrymandering is the carving of districts, into sometimes odd shapes, to benefit a political party’s electoral prospects. The term gerrymandering was coined after Elbridge Gerry, a Massachusetts’s governor, in order to describe an irregularly shaped district that looked like a salamander in an 1812 redistricting map he signed into law. As a result, partisan gerrymandering has been a defining feature of “American politics since the early days of the Republic.” While racial gerrymandering is unconstitutional, the constitutionality of partisan gerrymandering is an open question, as the Supreme Court has never struck down a map for partisan gerrymander.

Partisan gerrymandering seems to fly in the face of democracy. Voting is a fundamental right and electing who you want to represent you in office is a fundamental part of democracy. Legislatures that scheme, plan, and manipulate maps to benefit one party over another can undermine the purpose of democracy. Some of this scheming, planning, and manipulating is self-interested as legislatures try to protect incumbents and create safe districts, but can also serve the purpose of entrenching a political party’s majority until the next redistricting cycle. Both parties, Republicans and Democrats, have enjoyed the benefit of partisan gerrymandering when given the opportunity.

While the Supreme Court has indicated that some level of partisan gerrymandering may be unconstitutional, it has yet to explain when the constitutional line has been crossed. This term, the Supreme Court took up the question of partisan gerrymandering for the first time in more than a decade. The two cases before the Supreme Court were Gill v. Whitford and Benisek v. Lamone. The Supreme Court was asked to answer when partisan gerrymander crosses the constitutional line. Gill v. Whitford challenged a statewide map that has been deemed among one of the worst partisan gerrymandered maps in the country, with a significant Republican partisan advantage. Benisek v. Lamone  challenged one congressional district in Maryland, with a significant Democratic partisan advantage. Some speculated that the Court took up both cases to deter an appearance that the Supreme Court prefers one party over the other. Another reason may be that the Wisconsin case was a challenge to a statewide map compared to the Maryland case challenging one congressional district.

The appellants attorney in Gill v. Whitford argued during oral arguments (see, page 62) that the Supreme Court is the only institution to put an end to partisan gerrymandering. The Court, however, sidestepped the entire issue by unanimously finding the Gill plaintiffs did not have standing, and that the challengers in Benisek had waited too long to seek an injunction blocking the district.   The Supreme Court’s silence allows legislatures to continue to strategically gerrymander.

While the country waits on the Supreme Court to provide an answer on the constitutionality of partisan gerrymander, some states have attempted to take partisanship out of the process by using redistricting commissions, while others suggest that computers with algorithms should produce the maps. Yet, neither of these options individually seem to completely insulate redistricting from politics.

States have adopted redistricting commissions with the intention to remove partisanship from the redistricting process. However, this has often proved difficult to achieve, as finding non-partisan committee members is difficult and oftentimes the commission is appointed by partisan members, such as elected representatives and governors. States use different types of commissions and may only use a commission for redistricting the state map or congressional map. About 23 states use commissions for the state legislative maps and about 14 states use commissions for the congressional maps. The redistricting commissions can take the form of an advisory commission that makes suggestions to the legislature, a backup commission that draws the map if the legislature fails to redistrict, or as having the primary responsibility of drawing the map.

Arizona State Capitol
Phoenix 1901

Even states that use independent redistricting commissions have had difficulties completely insulating the process from politics. For instance, in 2011, Arizona’s Independent Redistricting Commission chairwoman was removed by the Republican Governor and the Republican-controlled State Senate. The Governor accused the chairwoman of skewing the process for Democrats. The Arizona Supreme Court, however, reinstated the chairwoman and the United States Supreme Court upheld Arizona’s independent redistricting commission as a legitimate way to draw district maps. Although some states are moving toward redistricting commissions as a way to insulate the process from politics, these commissions are “only as independent as those who appoint it.”

While technological advances have been thought to help parties gerrymander more effectively, some suggest that similar technology could take politics out of the process with the proper algorithms. Brian Olson, a Massachusetts software engineer, wrote an algorithm to create “‘optimally compact’ equal-population congressional districts.” Olson prioritized the compactness requirement in an effort to reflect “actual neighborhoods” and because dramatically non-compact districts can be a “telltale sign of gerrymandering.” However, political scientists are skeptical about an algorithm prioritizing compactness, because it ignores other important factors, such as community of interest. Furthermore, someone needs to set the algorithm and there can be infinite map results. Thus, without very strict restrictions and guidelines, setting an algorithm and picking the map can still be an inherent gerrymander.

Removing politics completely from the redistricting process appears to be nearly impossible. Partisanship is deeply entrenched in the process, and dates back to even before the coined term “gerrymander.” Redistricting commissions do not always guarantee a partisan free redistricting effort, and while technology offers an alternative to human map drawing, humans are still making the final decision.  Some combination of these efforts may help to lessen the amount of politics used in the redistricting process or lessen the appearance of partisanship, but are unlikely to completely end partisan gerrymandering all together.

 

Mikayla Foster anticipates graduating from Boston University School of Law in May, 2019.

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Arizona’s Teacher Strikes: The End or Just the Beginning?

July 19th, 2018 in Analysis, Budget & Appropriations, State Legislation

For six school days in late April and early May, teachers across the state of Arizona walked out of their classrooms to demand better pay, more classroom funding, and other concessions from governor Doug Ducey (R) and the Republican-controlled state legislature. These teachers, inspired by similar walk-outs in West Virginia, Oklahoma, and Kentucky, brought their “outside voices” together to call for change. In the early morning hours of May 3, Ducey signed the new state budget that gave teachers a raise. But, the bill fell short of meeting the walkout organizers’ other demands. Some have said the #RedforEd movement failed because it did not deliver on all of the group’s demands. Still, this strike was just the beginning.

It is important for me to be transparent about my personal connections to this issue. My mother is a life-long public school teacher, who recently retired after over 25 years of teaching in schools across Arizona. As part of Teach for America, I spent three years teaching in the Littleton Elementary School District, the same district where #RedforEd organizer Noah Karvelis teaches, although Mr. Karvelis started teaching after I left for law school. During my first two years of teaching, I earned my Master’s degree in secondary education from Arizona State University. And while I moved across the country to attend law school in Boston, I have kept in touch with many of my former colleagues in Arizona.

The issues with education funding in Arizona started in 2008, while the country was reeling from the recession. As states across the country scrambled to fix their budgets, Arizona’s schools took a big hit. Ten years later, while the economy has recovered, funding for Arizona’s schools didn’t. According to a report by the state’s auditor, schools were receiving less inflation-adjusted dollars per student in 2017 than they were in 2008. During that time, the state has seen its income limited by a number of tax cuts, the largest of which have gone to corporations. Despite promises, economic research has indicated that the cuts have not stimulated economic growth, resulting in decreasing government revenue. All this has translated into horrible conditions in many schools across the state.

The combination of the lowest teacher salaries in the country, low education funding, and successful walkouts in other states urged Arizona’s educators to take action. The group Arizona Educators United, which started the #RedforEd movement, laid out five demands: 20% raises for teaching & certified staff; pay raises for classified staff (janitors, paraprofessionals, secretaries, etc.); restoring classroom funding to 2008 levels; no new tax cuts until Arizona’s per-student funding reaches the national average, and annual raises for teachers until salaries reach the national average.

The movement’s hashtag, #RedforEd, started as a way to draw attention to the lack of education funding. Teachers began with “walk-ins” – they arranged to arrive at school early and stand just outside their school’s gates, wearing red shirts and waving signs. The walk-ins were aimed at building community support. Teachers also protested outside the capital during a “teach-in” on March 28 after the school day ended. The walk-ins continued for another month and, when the state legislature wasn’t receptive, the strikes began on Thursday, April 26.

Arizona State Capitol
Phoenix 1901

After nearly 13 hours of debate, Governor Ducey signed a new state budget that included nearly $273 million for teacher pay raises. That will only amount, however, to a 9% raise this year. Governor Ducey has plans to provide 5% raises in each of the next two years, in addition to the 1% raise teachers saw at the start of the last school year. But, this plan has a big problem. The legislature passes a new budget each year. So, while Ducey has “plans” to provide a 20% raise by 2020, that plan is completely out of his control because the decision ultimately lies with the legislature.

There are a number of other concerns that the teachers have with Ducey’s deal. The budget does nothing to raise per-pupil spending, increase pay to support staff, or reduce the state’s student-to-counselor ratio. While the American School Counselor Association recommends a ratio of 250 students per counselor, Arizona averages 924 students per counselor. A Democratic representative, Mitzi Epstein, had offered an amendment that would mandate a 250:1 student-to-counselor ratio, but the amendment failed.

While the budget itself certainly contained far less than #RedforEd supporters had hoped for, the fight is far from over. There are a number of ballot measures this November that could take Arizona’s education system in radically different directions. First, Proposition 305 asks voters whether they want to keep Senate Bill 1431 in place. That bill expanded what are formally called “Empowerment Scholarship Accounts” (“ESAs”) but more commonly known as school choice “vouchers.” While the two terms are not mere synonyms because they allocate money somewhat differently, the net result is that ESAs may be used by parents to send their child to private schools (including religiously affiliated schools). The money for ESAs is taken from public schools which, as stated, are grossly underfunded.

Organizers are also seeking petition signatures to place another initiative on the ballot related to education funding. The “#InvestInEd” ballot measure, which has not been given a number yet because it is not yet formally on the ballot, calls for tax increases on income over $250,000 for individuals or $500,000 for married couples. The web page in support of the ballot measure states that “[t]he higher rates are only paid on the income above those amounts.” Perhaps most importantly, funding secured through a ballot measure such as this one “cannot be taken away by the legislature.”

Finally, the #RedforEd movement has even driven some teachers to take more direct action. After spending nearly a week at the Capitol pleading with legislators to take action, several educators are running for elected positions themselves. The article by the Arizona Capitol Times identified former teachers running as both republicans and democrats for positions in the state house and senate, as well as local school boards.

The flurry of activity around education funding in Arizona makes a bold statement: this issue is not going away. While the strikes may be over and the new budget is signed, teachers have made clear that this will be a big issue come November. Beyond the ballot initiatives and teachers running for elected office, Governor Ducey is up for reelection. The #RedforEd movement unquestionably fell short of their goals – the last answer on the Arizona Educators United “FAQ” page makes that clear. But, to say that the movement died when the strikes ended is to underestimate the political will of angry teachers. Time will tell, but I think the movement for education improvement in Arizona is far from over.

David Bier anticipates graduating from Boston University School of Law in May, 2019.

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Mental Illness and Gun Violence:  What’s Really Responsible?

July 11th, 2018 in Analysis, Federal Legislation, Local Legislation, State Legislation

You’ve heard it all before.  In fact, you’ve heard the same arguments repeated back and forth so many times you have memorized them yourself. The cycle goes like this:  There’s a mass shooting, then in the tragic aftermath, the liberal and conservative pundits begin repeating their arguments left and right.  Usually, on the conservative right there are calls for mental health reform and on the left, liberals agree that we need to address mental health, but point to gun access as the key issue to prevent these tragedies from happening.  The rest of us, the general population, are left somewhere in between.  We point fingers like everyone’s to blame, but we take action like nobody is responsible.  That is to say, we take very little action at all.

Although this cycle has repeated itself to the point of feeling like a broken record, it’s important that we not get stuck like one.  After all, the definition of insanity is doing the same thing over-and-over again while expecting a different result.  Where some blame the mentally ill and some blame guns, it is important to step back and reframe our arguments to see the issue of gun violence in a different light.  Maybe the solution, as is often the case, lies somewhere in between.

The tragedy in Parkland has energized this debate to unprecedented levels, but has also brought with it many familiar arguments.  In particular, recent calls from President Trump to strengthen limitations on the ability of the mentally ill to access firearms gives us cause to reevaluate his premise that mental illness is associated with gun violence.  President Trump’s critique is founded on a commonly shared belief among the majority of Americans.  According to a Pew Research poll in 2017, 89% of people across the political spectrum favor placing increased restrictions on the ability of the mentally ill to purchase firearms.  This commonly held belief across the political spectrum forces us to ask ourselves: What is the real relationship between mental illness and gun violence?

What do the Numbers Say?

The evidence suggests that we may be biased when it comes to our perceptions of the mentally ill and the potential for persons dealing with mental illnesses or disorders to exhibit violent tendencies.  In fact, a 2013 national public opinion survey (p.367) found that 46% of Americans believe that persons with mental illness are “far more dangerous than the general population.”  However, the public perspective is vastly distinct from reality.  Another study (p.241) demonstrates that between 2001 and 2010, “fewer than 5% of the gun-related killings in the United States… were perpetuated by people diagnosed with mental illness.”  People are far more likely to be killed by a person with a gun that does not have a mental illness, than someone that does have a mental illness.

While mental illness is not strongly correlated with gun violence, there are other conduct measures that appear to be strong predictors of such violence.  Three conduct measures in particular that are powerful are past acts of violence/criminal history, a history of domestic violence, and substance abuse.

First, with regard to a history of violence, the American Psychology Association issued a report (see p.8) that concluded based on longitudinal studies, “The most consistent and powerful predictor of future violence is a history of violent behavior.”  One article from Wisconsin Public Radio affirms this trend in reporting that for gun homicides in Milwaukee about, “93 percent of our suspects have an arrest history.”  Although the Milwaukee sample is small and not entirely representative of the entire United States, such a high correlation is worthy of our attention in considering factors for reevaluating our gun policies.

Second, when it comes to the correlation between domestic violence and mass shootings or gun violence, the evidence is even stronger.  According to a study quoted in the New Yorker, “Of mass shootings between 2009 and 2013, 57 percent involved offenders who shot an intimate partner and/or family member.”  Further, a report from Everytown for Gun Safety shows that persons with a history of domestic violence account for “54 percent of mass shootings between 2009 and 2016.”

Third, with regard to substance abuse, a study (p.242) by Dr. Jonathan Metzl, an often quoted figure in studying the causes of gun violence in the United States, found that, “[A]lcohol and drug use increase the risk of violent crime by as much as 7-fold, even among persons with no history of mental illness.”  According to the same study, “serious mental illness without substance abuse is ‘statistically unrelated’ to community violence.”  In other words, substance abuse increases an individual risk of violence in general, including an increased risk of gun violence.

States Offer Pragmatic and Nuanced Solutions

However, correlation does not equal causation.  Many of the current studies on the causes of gun violence and mass shootings face limits (p.240) in this particular regard.  However, the low statistical correlation indicated in multiple studies between mental illness or disorders and gun violence are informative.  The fact that there are other risk factors that are strong predictors of violence generally and gun violence specifically point to where our attention is likely better directed in trying to rework gun laws in a manner that will work for everyone.

The Giffords Law Center to Prevent Gun Violence points to one such unique legal mechanism adopted in Oregon, Washington and California, which have adopted laws for Extreme Risk Protection Orders (“ERPOs”).  These laws allow family members or law enforcement officers to petition a court to keep guns away from someone going through a crisis.  The laws are geared toward the principle that family members are best able to gauge changes in an individual’s behavior that could pose a serious risk of harm.  Petitioners under these laws still have the burden of providing sufficient proof that the individual poses a risk of danger to themselves or others.  ERPOs are also only temporary, but may vary in length.  For longer protective orders, more compelling evidence must be offered that the person poses a risk of harm to themselves or others.

Oregon offers another pragmatic solution in its closing of the “domestic abuser loophole” through passage of a recent state law.  Under the 1996 Domestic Violence Offender Gun Ban, domestic abusers are banned from owning or possessing a gun.  However, the federal ban only applies to someone if they are married, living with, or have a child with the victim of the abuse.  The wording of the law creates the “domestic abuser loophole,” which means that someone who is not living with their significant other and does not meet any of the other mentioned criteria, but who abuses their significant other, can still buy a gun.  Oregon’s new law prohibits anyone convicted of a crime of domestic violence from owning or possessing a gun, regardless of whether or not that person lives with their significant other.

Oregon State Capitol
Salem, 1938

These new state laws are just examples of a number of other pragmatic and nuanced policy solutions that are geared toward preventing future gun violence while avoiding burdensome restrictions on the Second Amendment rights of the vast majority of Americans.  Such solutions demonstrate our capacity to tackle the problem of gun violence in new and creative ways, while still preserving individual freedoms.  Finally, these laws represent effective solutions that are based on empirical evidence about true risk factors for gun violence and not on ill-founded stigmas.  A path forward on fixing our gun laws exists, but to move forward we must set aside our preconceived notions and work together to promote innovative solutions that protect both our rights and our safety.

Nicholas Stone graduated from Boston University School of Law in May 2018 and plans to practice in Portland Oregon.

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New York State’s Missed Opportunity On Early Voting Propositions

July 11th, 2018 in Analysis, State Legislation

It’s no secret that the United States has one of the lowest voter turnout rates of any established democracy. Data provided by the Pew Research Center shows that out of the 35 members of the Organization for Economic Cooperation and Development (OECD), the United States places 28th for voter turnout. Only a little more than half of the U.S.’s voting age population participated in the 2016 elections. One reason for low voter participation that reformers consistently point to is the fact that Election Day is on a Tuesday in November.

Americans have been voting on the Tuesday after the first Monday in November since 1845 when Congress decided to set a national election day. In the 1840s, elections on a Tuesday made sense. People traveled by buggy and would make the journey into town for the market which was generally held on Wednesdays. By setting election day on Tuesday, Congress made it convenient for people to vote because they were in town anyways. However, today many people work on Tuesdays which makes less it a less practical day of the week to have an election than it was in 1845.

One way states have dealt with the difficulties created by Election Day falling on a Tuesday has been to develop provisions for early voting. Early voting allows people to cast a ballot in person at either an elections office or other specified location at some point before the federally designated Election Day. As of 2017, 37 states allow registered voters to vote during a specific period of time before Election Day, and 22 states provided an option to vote during the weekend. Early voting begins in some states as early as 45 days before the election or as late as the Friday before election day, although the average early voting start date is 22 days before Election Day. Generally early voting ends a few days before Election Day.

New York is one of only thirteen states that does not allow early voting. It does have absentee ballots, but allows voters to use them only if they are out of the county or otherwise unable to vote on election day as a result of illness or disability. New York has dismally low voter participation rate, and in the 2016 election New York state ranked 42nd in voter turnout with only about 59% of eligible voters voting.  For years there have been attempts to update New York’s voting laws, but resistance from the Republican controlled Senate has led to the failure of these bills.

However, that may soon change. Since early 2017 there appears to be increased attention to and political will for election reform. In January of 2017, former Attorney General Eric Schniederman introduced the New York Votes Act which included provisions for automatic registration of eligible voters, early voting, and no-excuse absentee voting. The bill was sponsored by the Chairman of the Election Law Committee, Assemblyman Michael Cusick (D-Statent Island). The bill is currently in committee.

In January of 2018, Senator Brian Kavanagh (D-Brooklyn and Lower Manhattan) introduced Senate Bill S7400A which would create an eight-day early voting period that would be funded by the state. The bill is currently in the election law committee, and has received support from Democrats including Democratic Conference Leader, Andrea Stewart-Cousins (D-Yonkers), a cosponsor of the bill. Senator Stewart-Cousins called New York voter turnout “extremely embarrassing” and stated that “Our bills will modernize voter registration, implement early voting, protect voters' rights, and cut red tape which has kept far too many New Yorkers from exercising their constitutional right.”

Republicans have also introduced their own election reform legislation. Senate Bill S7212 sponsored by Republican Senator Betty Little (R- Queensbury) would allow early voting beginning 14 days before the general election. Senator Little remarked “The people this would help the most are the families, people who are working with children in school, with sports activities and homework…They intend to vote; they just don't get there that day." Assemblywoman Nily Rozic (D, WF-Fresh Meadows) sponsored the Assembly version of this bill.

New York State Capitol
Albany 1899

On February 12, 2018, drawing on aspects of both Senator Kavanagh’s bill as well as Senator Little’s bill, Governor Andrew Cuomo announced a 30-day budget amendment which would provide approximately $7 million in FY2019 for counties to run early voting programs. Governor Cuomo’s plan calls for counties to provide early voting opportunities during the twelve days prior to Election Day, and requires that voters have at least eight hours on weekdays and five hours on weekends to cast their vote. Counties must also provide at least one early voting site for every 50,000 residents, the location of which will be determined by the bipartisan County Board of Elections.

Several groups have expressed support for early voting including labor unions, good government organizations, and the League of Women Voters. Proponents of early voting claim that if people were able to vote at a time that was more convenient for them, there would be broader participation. However, some opponents of early voting have argued that early voting may actually cause lower voter turnout because people will not feel the same social pressure to vote as they do when they are only able to vote on one day. Additionally, people who vote early may not have the same information as people who vote on Election Day because advertising and campaigning intensifies as Election Day approaches. In the past Republican leaders in the Senate have expressed a hesitancy to change the system, though the spokesman for Senate Republican Leader John Flanagan (R- Suffolk County) recently stated “Our conference has supported electoral reforms in the past, and we would expect to do so again…But we have not discussed that specific proposal recently."

Whether New York will ever adopt early voting is still unsettled. The legislature voted on the Governor’s budget in late March, but the Senate majority removed the early voting provisions.  In mid-April, the Assembly passed election reform bills to authorize 7 day advance voting, overhaul the voter registration process and allow for online registration.  The Senate referred the bills to the Election Committee, and then on June 20, the session came to a quiet end without any action on voting.  Speaker Heastie does not anticipate any more legislative meetings until the new legislature is seated in January 2019.  Perhaps the elections will break the logjam in the Senate and early voting in New York will become a reality.

Meghan Hayes anticipates graduating from Boston University School of Law in May 2019.

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