Category: Local Legislation
Accelerated Public Health Modernization in Massachusetts
Amid the ongoing COVID-19 pandemic and national movements for public health modernization, the Massachusetts Legislature tried to strengthen the Commonwealth’s public health during the summer of 2022. The Statewide Accelerated Public Health for Every Community Act (H.5014) (SAPHE 2.0) would have required local boards of health and regional health districts to comply with new minimum standards for public health service delivery. Governor Baker, however, proposed making the standards optional for municipalities, effectively killing the bill for the 2021-2022 legislative session. Fortunately, a new governor and legislature may provide some hope for this bill.
Public Health Modernization in Massachusetts
SAPHE 2.0 is a continuation of recent efforts by the Massachusetts Legislature to strengthen public health systems in the Commonwealth. In 2016, Governor Baker signed a legislative resolve establishing a special commission to “assess the effectiveness and efficiency of municipal and regional public health systems and to make recommendations regarding how to strengthen the delivery of public health services and preventive measures.” In 2019, the Special Commission on Local and Regional Public Health published a final report that found many local boards of health struggle to comply with public health service delivery statutes and regulations. More troubling, municipal compliance fell below national expectations set by frameworks like the Center for Disease Control and Prevention’s 10 Essential Public Health Services, and the Public Health Accreditation Board’s Foundational Public Health Services that defines the minimum set of services and capabilities each health department required for its voluntary national public health accreditation program. The Special Commission noted that Massachusetts has 351 local boards of health–the largest number within any state, due in part to the Commonwealth’s emphasis on local autonomy–rather than the boards organized by county in other states. As a result, Massachusetts boards lack the capacity to deliver necessary public health services compared to larger health departments in other states, which have greater resources. The Special Commission recommended establishing minimum standards for public health in Massachusetts, which could help local boards of health achieve compliance with state requirements and then work toward accreditation, and facilitating cross-jurisdictional service sharing arrangements, among other reforms.
In April 2020, Governor Baker signed An Act Relative to Strengthening the Local and Regional Public Health System into law. The Act established the “State Action for Public Health Excellence” (SAPHE) program that aimed to “improve the efficiency and effectiveness of the delivery of local public health services” in the Commonwealth through funding and technical assistance related to cross-jurisdictional collaboration, data sharing, workforce development, and other domains. The Act also charged DPH with defining minimum standards for foundational public health services in Massachusetts to enhance governmental public health performance. This legislation, however, made these standards voluntary and aspirational. The Act incentivized participation through a grant program to fund municipalities involved in planning, capacity building, and implementation of cross-jurisdictional sharing arrangements. The Department of Public Health currently funds 41 grantees representing 76% of municipalities across the state.
The Statewide Accelerated Public Health for Every Community Act, dubbed “SAPHE 2.0,” builds upon the 2020 law to continue strengthening public health systems in the Commonwealth. Critically, the bill would require municipalities to meet DPH’s minimum public health standards and provide material support to municipalities. SAPHE 2.0 would have also augmented the existing grant program in two ways: expanding the availability of competitive grants (establishment of shared service arrangements and expansion of existing arrangements) and providing grants and technical assistance to help health departments with “limited operation capacity” to meet requirements. The House and Senate unanimously passed the bill on July 29, 2022.
Proponents of SAPHE 2.0 support standardization of public health performance to ensure all Massachusetts residents receive comprehensive, high-quality public health services. A coalition led by the Massachusetts Public Health Association (MPHA) advocated for the bill, emphasizing that the decentralized approach to public health service delivery in the Commonwealth “leads to extreme variability across municipalities.” The MPHA also noted that the COVID-19 pandemic has exacerbated underlying public health inequities and called on the Legislature to “invest in creating a stronger, more equitable system that will provide essential public health protections to all residents.”
In August 2022, Governor Charlie Baker declined to sign the bill and returned it to the Legislature with significant proposed amendments. Governor Baker supported the bill’s objective to “provide high-quality, coordinated and more uniform public health services across the Commonwealth” but expressed concern about the lack of guaranteed state funding to complement performance requirements for municipalities, which creates the potential for unfunded mandates. He also expressed concern that the bill lacked provisions requiring municipalities to maintain their own current levels of public health funding as a condition of receiving support from DPH. Accordingly, Governor Baker proposed to not mandate that local boards of health meet minimum public health standards, but instead permit them to opt in to receive funding from DPH to meet those standards while requiring them to maintain their existing municipal funding levels for public health services.
The MPHA criticized the proposed amendments, indicating they would “entrench the patchwork of municipal policies that makes our local public health system both ineffective and inequitable” (email newsletter on September 27, 2022). However, Governor Baker’s rejection of the bill reflects the primary motivations against it: the potential for local boards of health to receive no state funding to support their compliance with minimum standards. The Massachusetts Municipal Association (MMA) echoed Governor Baker’s sentiments, indicating support for “the intent of the legislation” but noting “strong concerns that the measure as written could impose a new annual unfunded mandate on municipalities.” Delivering testimony on the proposed bill, the MMA noted that “as written, H. 5104 does not mandate that the state meet its obligation to financially support the outlined goals. Instead, the state’s responsibilities would be subject to appropriation, while municipalities would not have that flexibility, and would be forced to fund the new costs imposed by the Department of Public Health.”
The Path Forward
SAPHE 2.0 is a microcosm of perennial public health concerns: how to deliver high-quality services and ensure equitable distributions of health burdens and benefits with limited resources. Governmental public health’s experiences during the COVID-19 pandemic laid bare structural health inequalities and emphasized the need for effective public health services and infrastructure, but also revealed logistical challenges inherent in forcing decentralized entities to act in tandem.
Although SAPHE 2.0 has been defeated in the short term, its longer-term prospects look promising: Governor Maura Healy took office in January 2023, and the Joint Committee on Public Health is considering a newly refiled version of the proposal. Public health advocates will continue to champion modernization efforts to advance the optimal health of all communities in Massachusetts.
Shannon Gonick anticipates receiving her juris doctor from Boston University School of Law in May 2024.
Boston T Party: Using Transatlantic Policymaking to Push Free Public Transit in Massachusetts
If you've lived anywhere near the Boston metropolitan area in the past few months, you will no doubt have faced a barrage of discussion in the media and manifestos about the prospects of making the T (Boston's public transport system) free for all riders. Mayor Michelle Wu has headed up the push to make the historic MBTA free and used it as a major issue in her Mayoral campaign. Mayor Wu wrote an Op-Ed in the Boston Globe as far back as January 2019 advocating for free public transit, citing improvements to air quality, economic mobility, racial equity. Wu even donned a golden, token style pendant with the classic T logo in many of her campaign advertisements. This in-vogue concept also has the support Congresswoman Ayanna Pressley and former Democratic candidate for governor and former state senator Ben Downing vowed to "make the T free by the end of his first term." Another former gubernatorial candidate state senator Sonia Chang-Diaz proposed a state-wide free public transportation agenda, starting with buses. There have been small steps toward this goal such as making three bus lines free for two years. This article is designed not to demonstrate the positives of free public transit, of which I am a strong proponent, but how we can make the program more palatable for those on Beacon Hill.
But there are sceptics and critics at all levels of Massachusetts politics. Former Mayoral candidate Annissa Essaibi George would criticize the idea of going entirely “fare-free” as fanciful, while House Speaker Ron Mariano and Senate President Karen Spilka have not committed to a fare-free MBTA system. Importantly, current Massachusetts Governor Charlie Baker opposed the idea of eliminating fares, unless “Boston is willing to pay.” Baker does raise some compelling points, asking why those in “the Cape, on the North Shore, in Central or Western Mass” should pay for Boston riders. Currently, fares account for only around a third of the MBTA’s $2 billion budget, so how do you make up this shortfall in the utopia of a fare-free city?
This is a bold, progressive, and commendable policy proposition, and while it may be very popular amongst locals, there is not much appetite for it on Beacon Hill due to cost. Most proponents suggest funding this program by raising taxes. Ben Downing proposed using some of the $5 billion in funds from the American Rescue Plan Act, and tax revenue from a popular “millionaires’ tax,” as well as gas tax hikes of 10-15 cents (bearing in mind this was proposed pre-inflation and the Ukraine/Russia conflict) and a sales tax on Uber and Lyft rides. Sonia Chang-Diaz likewise has proposed levying a state millionaires’ tax to fund the policy. Michelle Wu took a slightly different approach, suggesting that “regional ballot initiatives” are the way to raise finances for a free MBTA. Regional ballot initiatives ask voters in localities in a small demographic if they approve of raising certain taxes i.e., sales, emissions, property tax. This is certainly one way to rebut Governor Baker's “why should Massachusetts pay for Boston” argument.
Temporary funding like the ARPA is not sustainable and increased gas taxes is probably a non-starter in this age of sky high gas prices, although Sen. Downing was right to use the problem to pay for the solution. A millionaires’ tax may be a popular possibility, but may not be long-standing enough or raise enough to subsidize the T. Wu’s regional ballot initiative idea is more compelling and something we see elsewhere, (California, Colorado, Georgia etc.), but asking local riders to pay for something they want to make free seems counterintuitive.
There is room, however, for creative policymaking solutions to kill two (or three) birds with one stone. Owing to my transatlantic tendencies, I believe the city of Boston should implement a “Ultra-Low Emissions Zone” used by the city of London. The ULEZ is a mapped zone in the London city centre that, once entered, registers your license plate with cameras, and charges you £12.50 for vehicles not compliant with emissions standards. In the first year, the ULEZ brought in £400 million in revenue, equivalent to around $524 million USD. Of course, congestion charges are not free of controversy, and special considerations or permits must be given to taxis, Ubers, first responders and construction companies working in the city for a prolonged period. London is, however, significantly larger than Boston, and does not use the funds to subsidise the public transportation system. This can be done on a smaller scale within the city limits of Boston, perhaps inclusive of the area spanning the green line.
What this ULEZ would do in Boston is not only grant the accessibility, economic mobility, job creation and ridership but also substantially reduce the emissions of vehicles which count towards 40% of the carbon footprint of Massachusetts. This way, you can tax the problem as well as make those who want to come to Boston pay for Boston public transit. Alongside this, the need for road maintenance, a major gripe of New Englanders, would be significantly reduced on the city’s busiest roads – a significant cost to the public purse.
An exponential increase in ridership post COVID-19, is what the T needs, and as shown by making the Route 28 bus free in a pilot scheme, ridership increases by at least 22%, something that would undoubtedly be higher in high traffic lines like the green line. Higher ridership alone can help with budgetary issues. Being able to have thousands more take the city subway into pandemic-recovering businesses and restaurants would be a welcome injection of footfall. This would be both a sustainable, and environmentally sustainable policy concept that could continually fund the shortfall that a free transit system would create in the budget.
As outlined by Attorney General and gubernatorial candidate Maura Healey, there is a growing consensus that Massachusetts infrastructure is crumbling, and drastic investment is an absolute requirement. Massachusetts is in a rare position where we can slash deadly emissions caused by vehicle pollution whilst simultaneously. The 15% of annual income that everyday Americans fork out for transportation, would be greatly reduced in metropolitan Boston. ‘But there is also momentum in the notion that environmental justice equals racial justice, and a huge step towards achieving transit justice would be taken by implementing the ULEZ to fund the hallmark of Massachusetts’ public transit system. That is how you make Boston a pioneer in sustainability, and an easy pill for Beacon Hill to swallow in one fell swoop.
Jack Ford McDonald Morton graduated from Boston University School of Law with an LLM in American Law in May 2022. He graduated from the University of Strathclyde in 2020 with an honors LLB degree in Scots and English Law. He was named a Saint Andrews Society of the State of New York scholar to attend BU Law.
Checks & Balances in a Pandemic
Recently, Shelley Luther, a Dallas based hair salon owner was jailed for refusing to close down her salon. The owner of Salon à la Mode continued operating her business despite a temporary restraining order last week from Dallas County State District Judge Eric Moyé. She continued operating despite a county official’s cease-and-desist letter ordering her to close.
As Luther faced criminal and civil contempt-of-court charges, Judge Moyé told Luther to admit her actions were selfish and wrong and promise that she would follow the law. CBS DFW reported that Luther refused responding,
“I have to disagree with you, sir, when you say that I’m selfish, because feeding my kids is not selfish. I have hair stylists that are going hungry because they’d rather feed their kids. So, sir, if you think the law is more important than kids getting fed, then please go ahead with your decision, but I am not going to shut down the salon.”
This answer did not please Judge Moyé, who immediately sentenced Luther to seven days in jail. Luther was not given an opportunity to go home or even have a phone call, if it hadn’t had been for her boyfriend her adolescent daughter would not have understood why her mother didn’t come home that night.
During the COVID-19 Coronavirus Pandemic, officials have agreed that jail is a breeding ground for the virus. In order to best protect the people, officials have quickly worked to release many non-violent prisoners for the sake of their health. Dallas county specifically released 1,000 inmates to ease crowding in the hopes to slow the spread of COVID-19 at the Dallas County jail. At a time where officials are releasing prisoners, I find it inappropriate to make an example of Luther by throwing her in jail. Not only was this action a risk to her health, but a risk to her family and those exposed to her when she would be released a week later. Additionally, if Luther had been asymptomatic there was a risk that she herself could have brought the virus into the prison.
Furthermore, Dallas County District Attorney John Creuzot announced policy reforms plans to end mass incarceration in Dallas by decreasing the use of excessively high bail amounts, no longer prosecuting most first-time marijuana offenses and not prosecuting thefts of personal items under $750 that are stolen out of necessity. These policy reforms were established to decrease the number of incoming prisoners. Again, at a time where officials are fighting to decrease prison populations, Moyé’s actions neglected to consider the bigger picture. A better alternative would have been a fine for each day she was in operation, with the money allocated to benefiting the community.
Due to public outcry, Gov. Greg Abbott modified his executive orders to remove confinement as a consequence for violating them. He stated:
“Throwing Texans in jail who have had their businesses shut down through no fault of their own is nonsensical, and I will not allow it to happen,” Abbott said in a statement Thursday. “That is why I am modifying my executive orders to ensure confinement is not a punishment for violating an order.”
His change supersedes local orders and Luther was subsequently released. Luther was fined $7,000 for violating a temporary restraining order against reopening her business. However, Lt. Gov. Dan Patrick pledged to step up and pay the fine on her behalf.
The COVID-19 Coronavirus is an unprecedented time in our nation’s history, with legislators unsure how to best regulate protective measures. State legislators have gained an enormous power with COVID-19 Coronavirus. Without a doubt aggressive government intervention has occurred during this health crisis. Historically, pandemics have led to an expansion of the power of the state. Looking towards the future, legislators will have to work to strike a balance between protective regulations and domineering policies.
Diana Alexandra Martinez anticipates graduating from Boston University School of Law in May 2021.
Funding the MBTA: Getting Derailed Plans Back on Track
Taking the T
The transit system of Eastern Massachusetts, governed by the Massachusetts Bay Transportation Authority, has been the subject of much ire by residents of Greater Boston for decades, particularly where the subway, or “T,” is concerned. A prime example is last year’s decision to raise fares by 6% despite continual failures in service, such as a recent derailment on the Red Line and power shutdown on the Blue Line. As the oldest subway system in North America, many of the T’s problems stem from decades- or even century-old design decisions which are impractical to redo today. For example, its hub-and-spoke layout emphasizes access to downtown Boston at the expense of ease of travel between the edges of the system.
Broke, But Not Broken
However, the primary barrier to the T being the efficient, functional transit system that Boston needs it to be is insufficient funding relative to necessary maintenance and upgrades, not to mention its current debt load. Though the MBTA system as a whole sees more than $2 billion in annual revenue, it still endures annual operating losses of more than $36 million. Significantly, the majority of its revenue does not come from operations, i.e. fares collected, but rather from sales tax and local assessment contributions. For nearly twenty years, a “penny” of all non-meal-and-drink sales tax revenue in Massachusetts has been dedicated to the MBTA budget. Because this source of tax revenue has not grown as anticipated, the MBTA budget has consequentially fallen short of expectations by well over $200 million per year. Meanwhile, costs of new projects continue to balloon. The cost of an upgraded fare collection system, originally budgeted at just over $700 million, has now grown to over $900 million.
Boston City Councilor Michelle Wu argues that incremental fixes and patching of problems is insufficient; rather, we must invest in the system as a whole with a focus on expanding access. The necessity of serious capital investment became especially apparent after historic blizzards in early 2015 forced a system-wide shutdown. Wu has pointed to Governor Charlie Baker’s reluctance to act as an obstacle to the requisite overhaul the T needs. In response to pressure from her and other transit advocates, last summer Gov. Baker announced plans to accelerate an ongoing five-year, $8 billion capital investment program which kicked off in early 2019. The program aims to provide new rapid-transit buses and train cars, modernize the Red and Orange Lines, and fund a major expansion of the Green Line into underserved areas of Somerville and Medford. The latter, a long-suffering project decades in the making, is an example of the importance of major investment in transit: once complete, the percentage of Somerville residents within walking distance to light rail will increase to 80%, up from a current 20%. Gov. Baker’s acceleration includes more aggressive closures to allow for infrastructure work, more inspections and maintenance, negotiations with contractors, and the creation of a new team of MBTA personnel with the flexibility to work on multiple projects.
Even so, continued problems, such as the aforementioned Red Line derailment, prompted Gov. Baker to propose an $18 billion bond bill for transportation throughout the Commonwealth last year, providing money to the entire Massachusetts Department of Transportation, including a $5.7 billion slice for the MBTA. This bill, An Act Authorizing and Accelerating Transportation Investment, most recently received approval, with an amendment, from the House Committee on Bonding, Capital Expenditures and State Assets and moved before the House Committee on Ways and Means in late February, 2020. This Act would fund road and bridge repairs, MBTA upgrades, and the electrification of regional transit services, as well as contribute to big projects such as Cape Cod Canal bridges and the Green Line Extension. The bill also provides support for improving pavement on public roads and building small bridges as well as help for municipalities seeking to make their roads more cyclist- and pedestrian-friendly. Other provisions aim to reduce traffic congestion and greenhouse gas emissions by building bus lanes and working to reduce bottlenecks. Transportation Secretary Stephanie Pollack highlighted the importance of action on other projects which complement improved transit service to maximize the impact of the bill. Such legislation includes Gov. Baker’s proposed Housing Choices Act, which would streamline zoning approval for certain housing projects.
This past January, Gov. Baker also proposed a $135 million budget increase for the MBTA, possibly in response to a scathing December 2019 report by the Safety Review Panel which found deficiencies “in almost every area” of the MBTA system. A major criticism was the recent over-emphasis on capital improvements and not enough support for regular maintenance and safety, with staff being diverted away from the latter. However, it is unclear how exactly the infusion of funding would be spent.
It should be noted that there currently remain $743 million in outstanding senior revenue bond loans to MassDOT, though the Department maintains an A+ rating for borrowing. Though the Act Authorizing and Accelerating Transportation Investment would be funded by further borrowing via bonds, its original version allocated half of all revenue from a potential greenhouse gas cap-and-trade program with other states in the region to public transit, creating a stream of revenue as well as encouraging more fuel-efficient cars. However, that provision was stricken by the Transportation Committee, which argued that they cannot allocate funds to a program that does not yet exist. Lawmakers instead plan to increase fees on transportation network companies and deeds excise taxes.
The amendments, including those made earlier by the House Committee on Transportation, include the elimination of $50 million in business tax cuts to encourage employees to work from home and thus reduce traffic congestion, a quaint decision in the midst of the COVID-19 pandemic which has forced millions to work from home anyway. The MBTA has been understandably hit hard, and as of April, ridership on the T was down more than 90% from late February, with bus service down nearly 80%. Anticipated losses this year exceed $213 million due to a 95% plunge in fare collection and drops in revenue from advertising and state sales tax. MassDOT hopes to cover the loss with an expected infusion of $840 million in federal funds through the CARES Act. Meanwhile, the MBTA has reduced service, instituted cleaning and sanitizing regimes for vehicles, and has begun requiring employees and remaining riders to wear face masks.
Needless to say, major investment decisions as of this writing have been put on hold. However, once this crisis has passed, it is critical that Massachusetts act to ensure its transit services remain a functional asset to the people of the Greater Boston Area and beyond.
Kellen Safreed anticipates graduating from Boston University School of Law in May 2021.
To Combat Adolescent Tobacco Use, Federal Law Raises Purchasing Age to 21
In the final weeks of 2019, in the wake of an outbreak of vaping-related illnesses and death, the federal government raised the minimum age of tobacco sales from 18 to 21. The widely-supported amendment to the Food, Drug, and Cosmetic Act was included in an appropriations bill that Congress approved on December 19th and President Trump signed into law the next day. The new law makes it illegal to sell tobacco products, including electronic cigarettes/vapes, to anyone under the age of 21 throughout the United States. While the law is a positive step for public health, it is long overdue and lacks much needed enforcement enhancement measures.
The federal government followed in the footsteps of 19 states, Washington D.C., and hundreds of local governments which had already increased the tobacco age to 21. The push to increase the tobacco age is referred to as the Tobacco 21 movement. The first Tobacco 21 law was enacted in Nedham, Massachusetts in 2005. In 2013, New York City became the first major city to pass a Tobacco 21 law. The wave of state-level Tobacco 21 laws began in 2016 with Hawaii and California, and continued with
Washington and New Jersey in 2017, Oregon, Maine and Massachusetts in 2018, Virginia, Illinois, Delaware, Arkansas, Maryland, Vermont, Texas, Connecticut and Ohio in 2019, and Washington, Utah, Pennsylvania, and South Dakota in 2020. New Mexico is the latest state to pass a tobacco 21 law which will go into effect in 2021.
The Tobacco 21 movement is supported by a strong foundation of research demonstrating the importance and efficacy of raising the age. In the Surgeon General’s 2012 report on Preventing Tobacco Use Among Youth and Young Adults, the epidemiological research showed that “adolescence and young adulthood represent[s] a time of heightened vulnerability to tobacco use and the initiation of cigarette smoking.” The rationale behind increasing the age from 18 to 21 is to reduce the number of people who begin smoking (or vaping) by making it more difficult to access tobacco during the years of highest vulnerability. And studies show that 98% percent of smokers begin before 26 years old and 90% of daily cigarette use begins before 20 years of age. Raising the age not only makes it more difficult for 18-20 year-olds to purchase tobacco, it also reduces access for minors who often rely on friends who are 18 and older to purchase tobacco products for them. In fact, it is estimated that “90% of persons who purchase cigarettes for distribution to minors are under 21.”
In addition to conventional cigarettes and tobacco products, Tobacco 21 laws also prevent people under the age of 21 from buying electronic cigarettes or vapes. This is because electronic cigarettes are deemed to be tobacco products by the FDA. Electronic cigarettes are the most commonly used tobacco products among youth today, and a 2018 study showed that 1 in 5 high school students and 1 in 20 middle school students use these products. Those numbers were likely even higher in 2019 when the mysterious vaping illnesses, which prompted this legislation, began. Even before the outbreak, the high rate of electronic cigarette use among American youth was troubling. Not only were public health officials warning of the known harms associated with vaping (such as potential for lung damage, and dangers of nicotine consumption for brain development), but also the universe of unknown risks associated with vaping as these products are relatively new and rapidly changing.
The vaping illness outbreak began in August 2019, when vaping product users— including many teens—suddenly began presenting to emergency departments with severe lung injuries. By December 4th, the Centers for Disease Control and prevention had confirmed over 2,200 cases and 48 deaths related to the outbreak. The reason for the sudden increase in vaping related illness was not immediately clear, and it stirred up panic among parents of teenagers and mobilized public health professionals who had long feared the harmful effects of vaping.
With the outbreak capturing the nation’s attention, Congress and the Trump administration were under pressure to do something to address the problem. With such powerful momentum in the Tobacco 21 movement, public health advocates and policy makers had already began calling for a federal Tobacco 21 law years ago (read more about that here, or here). Passing a federal Tobacco 21 law to address the vaping illness outbreak was an easy choice because, in contrast to more drastic measures such as banning electronic cigarettes entirely, raising the age enabled Congress to respond to the fear and public outcry surrounding the vaping illnesses in a manner that was actually supported by tobacco and vaping companies. While some advocates feel that raising the age was not a drastic enough measure to combat the vaping epidemic, it is certainly a positive step for public health and to combat tobacco consumption generally.
While the new law will make it more difficult for those under 21 to access tobacco products, the efficacy will depend largely on proper enforcement of the law. Enforcement of age restrictions on tobacco purchasing has been demonstrably poor, with many retailers still selling tobacco products to minors before the new law became effective. While amending the FDCA, Congress could have used this opportunity to not only raise the tobacco age but also to ramp up the enforcement mechanisms contained within the Act, by increasing funding, penalties or requirements on the number of compliance checks. Unfortunately, that did not occur and the new law. Without a change in the law to effectuate stricter enforcement measures, it will be difficult for the federal and state governments to oversee enforcement of the law and to make sure that retailers properly comply.
The federal Tobacco 21 law is a bittersweet victory for public health champions who have been warning against the risks of vaping and campaigning for an increase in the tobacco age since long before the mysterious vaping illnesses began. In order for our tobacco laws to truly be successful, our legislators must increase enforcement and properly fund measures that prevent the initiation of tobacco use. As with all areas of public health, we must act to prevent —not just respond once crises have already begun.
Rebecca Mashni graduated from The Ohio State University in 2015 with a B.S. in Public Health and graduated from Boston University School of Law in May 2020 with a J.D.
Protecting Vulnerable Road Users: A Vicious Cycle
Ten-year-old, Julian Moore was riding his bicycle in a suburb in Rochester, NY on Sept. 7, 2018, when 66-year-old Doug Lamb hit him with his Range Rover.
Lamb stopped the car after his collision with Moore, but did not give his information to Julian, the paramedics, or Julian’s mother. By the time the police arrived, Lamb had departed the scene. It took two weeks for the police to track Lamb down and charge him with the misdemeanor crime of leaving the scene of an accident causing personal injury. Pittsford Town Judge John Bernacki had decided to adjourn the case in contemplation of dismissal, meaning Lamb’s record would be wiped clean, on the condition that Lamb write an apology to the boy.
His apology letter read:
This act of “contrition” drew sweeping public scorn in January after the boy’s mother, Jenny Moore, posted a copy of the letter on her Facebook Page and the backstory subsequently made headlines around the country. In response, prosecutors moved to re-open the case and proceed to trial for failing to meet the apology requirement of his plea deal.
Prosecutor Daniel Strollo said his office pursued the case to the extent that it did because Lamb neglected to meet the condition to which he agreed to resolve the matter. “Mr. Lamb was given one simple instruction: to send a letter of apology,” Strollo said. “He didn’t do that. When you don’t follow through on the terms of a commitment for a plea or a disposition of a case, our office is not going to just ignore it.”
Lamb plead guilty on Dec. 6 in Pittsford Town Court to leaving the scene of an accident causing property damage—a mere traffic infraction. In exchange, Lamb was ordered to pay a $200 fine, perform eight hours of community service.
Julian’s story garnered national attention for his crash. Lamb was protected by a 5,000-pound vehicle of steel. Julian was protected by a plastic helmet. If it seems ludicrous the legal system could enable Lamb to walk away with a small fine and apology, it may be time to even the playing field and shift legislative protections toward vulnerable road users such as Julian.
Vulnerable Road Users
All over the country, thousands of similar crashes are occurring in the shadows, without the benefit of a national audience holding drivers accountable. The National Highway Traffic Safety Administration data shows 857 cyclists were killed in crashes with vehicles the U.S. in 2018. The same study found Florida leading the country with 161 of those fatalities, finding bicycle deaths for those 20 and older have tripled since 1975.
However, Florida legislators are prepared to step up and do something about the mounting problem, formally adopting “Vision Zero Florida” with a strategic goal of zero traffic fatalities and severe injuries for all users. Part of this vision includes advocacy for a proposed bill, H.B. 455 – Traffic Offenses, in the Florida Legislature which provides criminal penalties for persons committing moving violations causing serious bodily injury or death to a vulnerable road user including: a fine, period of house arrest, mandatory driver education, revocation of driver license. One of the largest shifts however, is the establishment and definition of “vulnerable road user.”
The League of American Bicyclists, a national bicycle advocacy organization, defines a Vulnerable Road User (“VRU”) as “anyone who is on or alongside a roadway without the protective hard covering of a metal automobile. The term includes bicycle riders, pedestrians, motorcyclists, people in wheelchairs, police, first responders, roadway workers and other users like a person on a skateboard or scooter. It is meant to include people who are especially at risk of serious bodily harm if hit by a car, or truck.”
VRU laws operate on the principal of general deterrence - by providing an increased penalty for certain road behaviors that lead to the serious injury or death of certain road users people will be deterred from doing those behaviors around those users.
In 2007, Oregon became the first Legislature to pass, HB 3314, creating an enhanced penalty for careless driving if it contributes to serious physical injury or death to a “vulnerable user of a public way.” Currently, only nine 9 states have laws that define a vulnerable user or VRU and provide particular penalties for actions towards those vulnerable road users or when violations of traffic law lead to the serious injury or death of a VRU – Connecticut, Delaware, Florida, Hawaii, Maine, Oregon, Utah, Vermont, and Washington. In Texas, approximately 28 cities have passed their own VRU laws in the absence of a statewide version.
To advance this legislative effort, the League of American Bicyclists, proposes a model VRU statute for state legislatures. The model language: Section 1) defines VRU protected persons; Section 2) defines when the law is applicable and who can be charged with a violation of the law; Section 3) requires a person charged according to this law to attend a hearing; and Section 4) provides the punishments that are to be given to a person convicted of a violation of this law.
Without enhanced protection for VRUs through increased penalties, it is common for a driver who kills or seriously injures a VRU to just be given a ticket for careless driving, as illustrated in a 2013 report by the Center for Investigative Reporting finding that in 238 pedestrian fatalities 60% of motorists found to be at fault or suspected of a crime faced no criminal charges.
As the closing lines of Prosecutor Strollo’s motion on behalf of Julian Moore states, “[t]he people are ready for trial.” Echoing a crystalizing national awareness that calls for increased protections to vulnerable road users, the people are ready for legislative change—and states legislatures should consider adopting a version of the VRU model law to meet this demand.
Alexandra Trobe anticipates graduating from Boston University School of Law in May 2021.
Electric Scooters and Data Reporting: A Roadmap to Smart Development
In many cities electric scooters appeared virtually overnight. These new forms of transportation have many benefits including: decreasing carbon emissions, making public transit more accessible, and solving first/last mile issues. Scooters also exacerbate many issues facing urban planners: taking up space on sidewalks, scaring pedestrians, increasing congestion, and may decrease public transit revenues. As state and municipal authorities scramble to regulate this new popular transportation mode, they should also embrace the benefits. A needed first step is to repurpose the Transportation Network Companies (“TNCs”) data reporting requirements to gather similar data from electric scooter companies.
In some cities TNCs, such as Uber and Lyft, contributed roughly 50% to congestion increases in the past several years. As a result, many cities and states have implemented reporting requirements on TNC’s in order to better understand their impact. In February 2019, New York City conditioned operating within the city to the disclosure of ride-share data. Now in New York City, TNCs must report: (1) where each passenger is picked up; (2) the time each passenger is picked up; (3) the total number of passengers; (4) the location where each passenger is dropped off; (5) the time each passenger is dropped off; (6) the total trip mileage; and (7) the cost of the trip. Seattle requires TNC’s to report : (1) the total number of rides provided; (2) percentage of rides completed in each zip code; (3) pick-up and drop-off zip codes; (4) percentage of rides requested but unfulfilled; and (5) collision data.
This data provides many benefits for municipal authorities. First, it allows them to better understand where trips start and end, and at what time the trips are occurring. With this information, authorities can increase and/or decrease existing public transit routes to meet demand, can extend public transit options to reach underserved areas, and adjust infrastructure to facilitate travel trends and tendencies. Public officials argue that when rider needs are better understood and this data put to an effective use, TNCs can be integrated with public transportation systems to make private car ownership obsolete, and vastly reduce traffic congestion. In turn, this would mean more efficient roads and more space for development. Additionally, less traffic would correspond to less damage on existing infrastructure, thereby opening up funding for other projects public transportation.
For example in 2018, Washington D.C., through their TNC data collection, noted that TNC usage matched transit commute patterns closely during the week, but also that TNC usage significantly increased in the evenings and weekends. In 2019, the Washington Metro proposed several potential changes to their operating hours, including significant increases to the number of service hours during nights and weekends. These changes are likely a response to insights gained from TNC data collection.
TNCs and electric scooters are similar in many regards. Electric scooters also provide an alternative transportation option that can either replace or supplement public transit. Electric scooter use can also highlight traffic trends and shed light on infrastructure and public transportation needs. For example, a study of an electric scooter pilot program in Portland, OR noted that 19% of all electric scooter trips occurred between 3 p.m. and 6 p.m. on weekdays, mirroring traditional rush hours. This finding parallels the findings of data collected by Washington D.C. from TNCs.
Because TNCs and electric scooters pose similar problems and could provide similar data, they should be subject to similar reporting requirements. Moreover, these requirements would not be difficult to implement as electric scooters are already GPS tracked and companies already routinely collect the data sought.
Further, this data collection could benefit the electric scooter industry. The Portland pilot program predictably discovered (1) 0% of electric scooters rode on the sidewalk when riding on a street with a neighborhood greenway; (2) 8% of electric scooter users rode on the sidewalk when riding on a street with a protected bike lane; (3) 21% of electric scooter users rode on the side walk when riding on a street with a bike land; and (4) 39% of electric scooter users rode on the sidewalk when riding on a street with no bike facilities. Consequently, Portland could, using this information and additional data about popular scooter routes, construct additional bike lanes in high scooter traffic areas to facilitate a safer commute for riders. Electric scooter data could also help municipalities determine when to increase or decrease public transit availability. If data shows a hotspot for the origination or termination of rides, authorities may even use this data to decide to expand public transit service to a previously unserved area.
Lastly, this data needs to be made available to any interested governmental entity. Although San Francisco has been plagued by TNC congestion the California Public Utilities Commission, which collects TNC data, has been reluctant to share this information with municipalities. San Francisco is unable to make informed policy decisions; regarding both TNCs and public transit generally, without this information. This hoarding of information must not happen with the data collected from electric scooters.
When regulating electric scooters, as many states and municipalities are beginning to do, they should consider requiring electric scooter companies to report on information regarding (1) passenger pickup location; (2) pick up time; (3) passenger drop off location; (4) drop off time; and (5) the total trip mileage. This information alone would give these authorities some of the data they need to better implement future transportation and municipal planning policies.
Graham (Gray) Louis anticipates graduating from Boston University School of Law in May 2021.
Dying for a Greener Tomorrow: Legalizing Alkaline Hydrolysis
From the first intentional Neanderthal burials to Polish vampire burials and Himalayan sky burials, burial practices have long been and continue to be a large part of our cultural understanding of death and the afterlife. Today’s growing concerns with land and natural resource sustainability as well as global climate change, people look towards ways to slash their carbon footprints upon death. One emerging alternative to traditional cremation is alkaline hydrolysis (also known as resomation and biocremation).
Greater than half of the US population choose conventional modern burials upon death, which includes being filled with embalming fluid, a known carcinogen, being placed into a casket composed of imported tropical hardwoods, and buried inside a concrete-lined grave. In total, conventional burials account for “4.3 million gallons embalming fluid, 827,060 gallons of which is formaldehyde, methanol, benzene, 20 million board feet of hardwoods, including rainforest woods, 1.6 million tons of concrete, 17,000 tons of copper and bronze, 64,500 tons of steel, and [c]askets and vaults leaching iron, copper, lead, zinc, cobalt” yearly in the US. The wood alone could potentially build millions of homes. Moreover, cemetery landscapers often overwater and over fertilize these spaces to keep their green appearance. On top of these environmental effects, America is running out of space for the deceased, particularly urban centers which cannot keep pace with population growth. All of this accounts for 230 pounds of carbon footprint per traditional burial, equivalent to the average American’s three month carbon output.
Figure 1. Alexandra Harker, through the Berkeley Planning Journal, illustrated the resource intensity of conventional modern burials.
Traditional flame-based cremations, often thought of as a greener alternative, “uses 92 cubic [meters] of natural gas, releases 0.8 to 5.9 grams of mercury, and is equal to an [500 mile] car trip.” Interestingly enough, mercury dental fillings are one of the greatest concerns attributed to cremation. According to the Cremation Association of North America (CANA), “primary reasons for choosing cremation are; to save money (30%); because it is simpler, less emotional and more convenient (14%); and to save land (13%).” “The most recent figures from 2003 show that the U.S. cremation rate was 28% (700,000 cremations). Based upon increases in acceptance over the past five-year average, the . . . (CANA) has forecast a national cremation rate of 43% by 2025 with over 1.4 million cremations taking place.” Thus, finding a cost-efficient alternative might be the nation’s best bet towards a greener alternative to traditional burial and cremation practices.
Alkaline hydrolysis reduces human remains down to bone fragments, just like the flame-based equivalent, but does so through a water-based dissolution. CANA first defined alkaline hydrolysis in 2010 as “a water-based dissolution process which uses alkaline chemicals, heat, agitation, and pressure to accelerate natural decomposition.” The removal and storage process are similar in both cremation processes, but alkaline hydrolysis provides the added benefit of allowing pacemakers and other implants in place throughout the water-based dissolution unless required by state law. However, the process of reducing the human remains through cremation is distinctly different between the two processes.
“Alkaline hydrolysis uses water, alkaline chemicals, heat, and sometimes pressure and agitation, to accelerate natural decomposition, leaving bone fragments and a neutral liquid called effluent. The decomposition that occurs in alkaline hydrolysis is the same as that which occurs during burial, just sped up dramatically by the chemicals. The effluent is sterile, and contains salts, sugars, amino acids and peptides. There is no tissue and no DNA left after the process completes. This effluent is discharged with all other wastewater, and is a welcome addition to the water systems.”
The process requires unique equipment and training, but the end result is a reduced carbon footprint. After the three to thirteen hour process of moderate heat, pressure, and agitation, the by-products are released in the water as opposed to traditional cremation which releases carbon dioxide and water vapor into the air. The water-soluble by-products include salts and amino acids, which the CANA suggests is “far cleaner than most wastewater.”
“The sterile liquid is released via a drain to the local wastewater treatment authority in accordance with federal, state or provincial, and local laws. The pH of the water is brought up to at least 11 before it is discharged. Because of the contents of the effluent, water treatment authorities generally like having the water come into the system because it helps clean the water as it flows back to the treatment plant. In some cases, the water is diverted and used for fertilizer because of the potassium and sodium content.”
Figure 2. CANA’s Board of Directors expanded the definition of cremation to include alkaline hydrolysis, mainly because the process and results were similar to traditional flame-based cremation.
First introduced in 1888 by the farming industry for creating fertilizers from farm animal remains, the process first hit the funerary market in 2011. Today, there are twenty states and three Canadian provinces legalizing the process through legislation. Using U.S. Census Bureau July 2018 data, the twenty states’ population totals over 151.5 million citizens, which accounts for 46.3 percent of the American population. Regardless of the legalization of alkaline hydrolysis, access is today’s constraint. The legalization of the process is the first step towards the wide-spread use of alkaline hydrolysis. Once the processes are available, the price point is in line with traditional cremation services. Anderson-McQueen Funeral Homes lists the transportation, handling, and other fees associated with both cremation processes at approximately $3,000.
Figure 3. CANA keeps an up-to-date map reflecting alkaline hydrolysis regulatory changes.
Once the wide-spread legalization of the process occurs, the public will likely push for greater access to greener cremation practices. It will be interesting to see if and when the process begins in Massachusetts and the remaining 30 states. In any case, the science shows that the massive carbon footprint that traditional burials and cremation services causes.
Tyler Heneghan anticipates graduating from Boston University School of Law in May 2021.
Sanctuaries With Guns? Turning The Rule Of Law Upside Down; by Delegate David Toscano (D-Charlottesville)
The Tazewell County, Virginia, Board of Supervisors recently jumped aboard the fast-moving “Second Amendment sanctuaries” train. In doing so, they embraced positions fundamentally at odds with state and federal constitutional law. Passing resolutions opposing certain laws or protesting governmental action is perfectly consistent with our traditions as a democracy, and no one should oppose the rights of citizens and their representatives to speak their minds. But Tazewell, and a number of other localities across Virginia, want to do much more. As Eric Young, an attorney and the county’s Administrator, put it, “our position is that Article I, Section 13, of the Constitution of Virginia reserves the right to ‘order’ militia to the localities; counties, not the state, determine what types of arms may be carried in their territory and by whom. So, we are ‘ordering’ the militia by making sure everyone can own a weapon." Other counties are announcing different schemes if gun safety laws are enacted: for example, the Culpeper County sheriff pledged to deputize “thousands of citizens” so they can own firearms.
Conservatives have railed for years against so-called “sanctuary jurisdictions,” criticizing localities that refuse to cooperate with federal immigration policies they deem heartless and ineffective. In the past year, however, some conservative lawmakers have taken a page from the progressive playbook, employing sanctuary imagery in opposition to gun safety legislation they deem to be an unconstitutional restriction of their rights under the Second Amendment.
The two approaches are classic cases of false equivalency. Jurisdictions that proclaim themselves sanctuaries for immigrants do not seek to violate the law; they simply refuse to engage local law enforcement in supporting actions that are federal responsibilities. They do not block the law, but simply insist that it should be enforced by those who have the responsibility to do so. For some proponents of so-called gun sanctuaries, however, the goal is to prevent enforcement of state law that the jurisdiction (not a court) deems unconstitutional.
After Democrats won majorities in both chambers of the Virginia General Assembly, fears of stricter gun regulations have inspired a rise in Second Amendment sanctuary activity in Virginia. Sanctuary efforts are driven mainly by the Virginia Citizens Defense League, a gun rights group to the right of the NRA. My office’s analysis of recent news accounts indicates that before November 5, just one county had passed a resolution; since the election, at least 80 localities (counties, cities, or towns) have passed some form of sanctuary resolution, and as many as 34 more are considering their adoption.
A REBELLION EMERGES
Second Amendment sanctuaries exploded onto the national scene in early 2019 after newly-elected Democratic Gov. J.B. Pritzker pledged to pass gun safety measures in Illinois. Within months, 64 of the state’s 102 counties passed sanctuary resolutions. After New Mexico expanded background checks in 2019, 30 of 33 counties declared themselves Second Amendment sanctuaries. Similar actions have either been taken or are under consideration in Colorado, Oregon, Washington state, and now Virginia.
In some cases, these resolutions simply register an objection to any infringement on gun owners’ rights. But some Virginia localities have gone further, indicating that they will not enforce state law that they deem unconstitutional. Some proponents have even resurrected words like “nullification” and “interposition,” terms first used extensively by Southern secessionists prior to the Civil War, and more recently during the “massive resistance” to federal laws requiring desegregation in the 1960s. They argue that constitutional officers in Virginia, such as Commonwealth’s Attorneys and Sheriffs, have discretion not to enforce laws that they consider “unconstitutional.” In Virginia, there has always existed some debate about the independence of these officers, but, while they are creations of the Constitution, their duties are nonetheless "prescribed by general law or special act.” In short, sheriffs may be “constitutional officers,” but they are not “constitutional interpreters.”
FLASHPOINTS IN THE CULTURE WARS
The emergence of these sanctuaries demonstrates a growing rift in our nation. For residents in many rural areas of our country, guns are viewed as part of their way of life, one some fear that they will lose due to national and state changes. Most gun owners are law-abiding citizens, and any effort to limit anyone's access to firearms is perceived as a direct attack on many things that they hold dear. During the Obama years, the manufacture and purchase of firearms increased in dramatic numbers in part due to unfounded fears that the government would try to take away guns. Voting to declare themselves “sanctuaries” is a way they can reassert some control over events that they feel are putting them at risk. For these communities, it matters little that reasonable gun safety proposals have largely passed constitutional muster, or that most proponents of these measures have no intention of taking anyone’s guns away unless it can be shown, in a court of law, that they are a danger to themselves or others.
At the same time, the general public is increasingly supportive of certain gun safety measures. An April 2018 poll found that 85 percent of registered voters support laws that would "allow the police to take guns away from people who have been found by a judge to be a danger to themselves or others" (71 percent "strongly supported"). These measures, called Emergency Risk Protection Orders (ERPO), or “red flag” laws, create judicial procedures by which persons with serious mental health challenges deemed a threat to themselves or others can have their weapons removed until their situation is resolved; courts can be engaged to protect the rights of the accused. And a March 2019 Quinnipiac poll reported that 93 percent of American voters support a bill that would require “background checks for all gun buyers.”
The energy behind support of gun measures like "red flag" laws is generated by concern for mass shootings, which are statistically rare but dramatic in their public impact, and the increasing numbers of gun-related suicides, which impact families and communities in quiet but devastating ways. On the latter front, there is a certain irony that some communities which have embraced Second Amendment sanctuary status also have higher gun suicide rates than other communities in their state. In Colorado, for example, nine of the 10 counties with the highest suicide rate over the past 10 years have declared themselves “Second Amendment sanctuaries,” many after the state passed an ERPO law in 2019. Of the 24 Colorado sanctuary counties for which suicide data is available, 22 (or 92 percent) had firearm suicide rates above the state average. Similarly, in Virginia, 36 of the 51 localities that have adopted a resolution to date and for which firearm suicide data is available have rates higher than the state median.
Recent polling in Virginia tells us that citizens of the Commonwealth are in step with the national trends documented above: Roanoke College’s Institute for Public Opinion Research recently released polling results which show that 84 percent of respondents favor universal background checks, and 74 percent support allowing a family member to seek an ERPO from a court. Yet in the very same pool of respondents, 47 percent believe it is more important to protect the right to own guns than to control gun ownership. The only way to make the math add up is to recognize that some people who strongly support Second Amendment rights may also support at least some reasonable gun safety measures—an approach the “sanctuary” advocates would never adopt. But even former Supreme Court Justice Antonin Scalia might have had problems with some of the arguments being advanced by proponents of sanctuaries. “Like most rights,” he wrote in District of Columbia et. al. v. Heller, “the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." In short, rights under the Second Amendment have never been absolute. And under both the national and state Constitutions, our courts are tasked with determining the constitutionality of laws—not local sheriffs.
HOME RULE VS. DILLON RULE
Proponents of Second Amendment sanctuaries have another problem in Virginia; the Commonwealth is what we call a “Dillon Rule” state. This means that if a power is not specifically permitted to a locality, state law rules. Progressives have been especially critical of Dillon Rule arguments in years past, believing that they have prevented localities from enacting policies—from local minimum wage ordinances to gun prohibitions—that seek to go further from state law. They have rarely been concerned that more conservative localities, if granted greater “home rule,” might enact policies, such as environmental regulations or building codes, that are more lax than state law. The Second Amendment sanctuary rebellion may prompt some to reexamine their views about how much additional power should be granted to localities.
The Virginia state legislature will soon consider several major gun safety measures, and opponents will likely strongly resist; as one county supervisor has said, “[W]e need to show them a crowd like they have never seen. They need to be afraid and they should be afraid.” Legislators should always be attuned to any unintended consequences of the laws that they pass; that is one reason why we have a deliberative process before bills are passed. But to leave the determination of whether to enforce duly-passed laws totally in the hands of sheriffs and local officials with discretionary power to determine their constitutionality is to turn the rule of law upside down, and is a direct attack on republican government and the Constitution itself.
David Toscano has represented the 57th district in the Virginia House of Delegates since 2006, and from 20011-2019 Del. Toscano served as the House's Democratic Leader. His forthcoming book is titled, In the Room at the Time: Politics, Personalities, and Policies in Virginia and the Nation.
A modified version of this opinion piece appeared on Slate.com.
Blanket Primaries or Ranked-Choice? Why Not Both?
A substantial number of Americans continue to voice dissatisfaction with current American electoral practices. This has put Justice Brandeis’s laboratories of democracy to work by prompting some states to exercise their powers to design election systems to experiment with various electoral reforms. Those powers derive from the state constitutions for elections of state officers; Article I, Section 4 of the U.S. Constitution to “[prescribe] the Manner of holding Elections for Senators and Representatives”, and the U.S. Constitution Article II, Section 1 to determine how electors for President may be chosen.
Many states have allowed their municipalities to experiment, with a few states adopting reforms on a state-wide level. In the latter category, some states, like California and Washington, have adopted what is sometimes described as the top-two, blanket, or Louisiana primary, while Maine has implemented ranked-choice voting. While these reforms have been innovative, study of their effects reveals limited success in achieving advocates’ promises. This post concludes that by combining both reforms, states will be better positioned to access the positive outcomes hoped for.
Former Republican congressman from Oklahoma, Mickey Edwards, has argued that the problem with American politics is our broken election system that rewards partisanship at the expense of good policy. Edwards argues that the culprit is the primary. Primary election turnout is notoriously low, with a recent Pew Research Center study celebrating a surge in participation in the 2018 House primary elections of 56% - a surge that still left turnout in that primary under 20%. The belief is that since political participation in primaries is so low, they are dominated by the most active, and most partisan, members of the parties, limiting the success of more centrist candidates, who are presumably more representative of their districts. In particularly politically active years, incumbents are at risk of being “primaried” by extremists in their party. Thus, the candidates in the general election tend to be more extreme, on both ends, than the district, and the eventual winner is then likely to represent only one extreme, rather than the district as a whole.
To address this concern, Edwards advocates for a reform known as “blanket” primaries, sometimes referred to as “Louisiana,” “jungle,” or, most accurately, “top two” primaries. This reform provides that in the primary election, there is a single ballot, with all candidates on the ballot regardless of party. The top-two candidates who receive the most votes then move on to the general election. This means that the candidates in the general election may both be from the same party, particularly in districts whose residents heavily identify with one party over the other. This may make for more competitive general elections, in that a candidate who is almost certain not to win isn’t on the ballot, in favor of a candidate who actually has a chance of convincing voters to vote for them. Also, along with Edwards’s hope that this will reduce partisanship by ensuring the candidates in the general election better represent the center of the district, advocates have also claimed that it will increase turnout.
Unfortunately, the data provides only marginal support for the proposition that blanket primaries reduce partisanship and increase turnout. An added challenge to blanket primaries is that because only the top-two move on, it is subject to vote splitting – if too many candidates from a party enter the race, they may end up without any candidates in the general simply by virtue of the number of candidates in the race, rather than voter preferences. Thus, blanket primaries are not a panacea, at least on their own, for electing more representative representatives.
Maine has moved in a different direction, adopting ranked-choice voting (“RCV”), a darling of electoral reform advocates for decades. RCV has a long pedigree, first having been promoted publicly in the United States by William Robert Ware in the 1870s. Some states and municipalities flirted with a version of RCV, known as single transferable vote, in the last great shift in party power during the early- to mid-twentieth century. RCV and similar systems have also been successfully used internationally – including in Australia, and Ireland.
While there are many different iterations of ranked-choice voting, Maine has adopted the most typical approach. There, voters may rank candidates first, second, third, and so on. If a candidate gets a majority of first-rank votes, they are declared the winner. However, if no candidate receives a majority of votes, then the candidate with the least number of votes is eliminated, and the voters who ranked that candidate first have their votes redistributed to their second-rank candidates. If no candidate has a majority, the new candidate with the lowest number of votes is eliminated, and their voters’ ballots are also redistributed. The system continues until a candidate has secured a majority of preferences.
Advocates of ranked-choice have also claimed that the system reduces partisanship, since candidates are encouraged to appeal to voters to rank them second, even if they can’t secure their first preference. Advocates also argue that it increases turnout by
making the ballot more reflective of voters’ wishes. As with blanket primaries, however, there is only modest statistical data showing that the turnout hopes are borne out.
States should consider merging the two systems, blanket primaries and RCV, in order to best access the benefits of each. The real problem that neither system effectively can address is the issue of turnout. Primary elections typically draw the most politically aware sector of the electorate that is most invested in who the candidates in the general election are, but turnout remains exceedingly low regardless of the system. Blanket primaries attempt to appeal to an electorate disenchanted by the current partisan model and looking to elect “the best candidate,” but since they continue to rely on a two-stage electoral model, they don’t resolve the fundamental problem. The most partisan members of the electorate participate in the blanket primary, and turnout surges, as it always does, in the general, after the partisans have already selected who will be on the ticket. Combining ranked-choice with the blanket primary would allow there to be a single election, ensuring the highest number of voters considering all the available candidates, not just those the partisans have already selected. Moving to a single election, with candidates on a single ballot regardless of party, and using RCV would ensure that the larger electorate would be able to weigh-in, allow them to rank their preferences, and ensure that the candidate who emerged was the preferred candidate of a majority of voters. This will increase elected officials’ mandate, and provide more information about what direction the district would like to go in.