Author: Steve Mulroy

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How to Fix Our Broken Electoral System

Every presidential election season spawns calls for reform of our rickety, antiquated system for electing presidents and representatives. In light of recent events, the urgency has never been greater. Here are some options to consider that would fix our problems.

Electoral College: Take the Electoral College. (Please.) Under our Constitution, state legislatures have exclusive power regarding the Electoral College. Any federal legislation to the contrary would be unconstitutional.

You could consider having states allocate Electoral College votes by congressional district, as Maine and Nebraska do. But all that’ll do is import the pathologies of gerrymandering into the presidential election.

Steve Mulroy

Or states could allocate Electoral College votes pro rata, based on each candidate’s share of the statewide vote, rather than on the current winner-take-all basis. But this is only a slight improvement. It would still make a vote in Wyoming mathematically worth three times as much as a vote in California (because each state gets two Electoral votes, regardless of its population). More fundamentally, it would still allow a candidate with more nationwide votes to lose to a candidate with fewer. (These same two criticisms also apply to the Maine/Nebraska approach.)

And, as I explain in my book, Rethinking U.S. Election Law, mathematically, it would still allow a small number of large states to dominate the campaign and get outsized attention in governance, as they do now. Because most states have a small number of Electoral College votes (average is 11, median is 7), even the most aggressive campaign effort could only change one Electoral vote in most states. So the incentive would still be to focus on a few big states with 20 or more Electoral votes and ignore the rest.

Better is the National Popular Vote Interstate Compact (nationalpopularvote.com), an agreement among state legislatures to award their state’s Electoral votes to the nationwide winner regardless of the vote count in their own state. This makes every vote in the U.S. mathematically equal to every other. Swing states won’t dominate, no one is ignored, and a candidate with fewer nationwide votes can’t beat out someone with more.

Within the last 10 years, 14 states representing 196 Electoral College votes have signed on to the Compact. They’re now 70 percent of the way toward the goal of 270 Electoral votes, at which point the Compact takes effect and the Electoral College is rendered harmless.

Gerrymandering: That “proportionate share” approach works better as a solution to gerrymandering. Nonpartisan redistricting commissions should become de rigueur. We’re the only advanced democracy that still lets politicians draw their own district lines. Voters don’t choose their representatives — it’s the other way around.

But because of “the Big Sort,” with Democrats overconcentrated in big cities, even the best such commissions can’t avoid “natural gerrymanders” that result whenever you superimpose single-member district lines and winner-take-all elections onto the unruly, demographically clustered populations of the U.S.

You still have a “skew,” which allows a party’s share of seats in the House to deviate significantly from its share of the overall vote. And you still have an overwhelming number of “safe” Republican and Democratic districts, where the only real competition is in the primaries. This incentivizes candidates to move to the extremes of left and right to avoid being “primaried,” with no real incentive to work across the aisle on constructive compromise.

Even better would be at-large or multi-member district elections using Proportional Representation, where 40 percent of the vote nets 40 percent of the seats. This would help Republicans in New York and Democrats in Mississippi get their fair share of representation; make all elections competitive with high turnout; and end gerrymandering once and for all.

The Fair Representation Act, currently pending in Congress, would give states the option to go this route, which has worked well in Australia for 60 years and in Cambridge, Massachusetts, for 80. (The multi-member districts would be drawn by nonpartisan commissions, but instead of a single winner-take-all election, three to five members would be elected at once, with each party getting its proportionate share of seats. And because the elections would use Ranked Choice Voting, where voters could choose their first, second, and third choices, third parties would have a decent shot at getting at least some representation.)

In conclusion, our electoral system needs real fixes. Now is the time to consider them.

Steve Mulroy teaches election law at the University of Memphis law school. He is a former Shelby County commissioner and Voting Section lawyer for the U.S. Justice Department.

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Don’t Be Misled by Ballot Referenda. Just Vote No.

There’s an old story about Reagan and Gorbachev in a footrace. Reagan wins. The next day, Pravda reports that “Gorbachev and Reagan in international leader footrace; Gorbachev comes in second; Reagan comes in next to last.”

You can be literally true but misleading. You can defraud through omission.

That’s what the Memphis City Council did when it drafted the three ballot measures on the November 6th ballot. It’s the subject of a pending lawsuit challenging the misleading referenda language. A quick look shows that they are fatally deceptive in a variety of ways.

Each of the three referenda seeks to undo election reforms which Memphis voters passed overwhelmingly in 2008 — but which haven’t yet been tried, thanks in part to official obstructionism by protectors of the status quo.

One is a two-term limit for city officials. The others involve Instant Runoff Voting (IRV), which lets voters rank their 1st, 2nd, and 3rd choices; if no one gets a majority, you use the rankings to determine a majority winner, without the hassle, expense, ridiculously low turnout, and minority vote suppression involved with holding a separate “runoff” election later. IRV has a proven track record of success over decades in a dozen other U.S. cities.

Term limits force incumbents to resign after serving a proscribed length of time, and IRV makes elections more competitive. City Council incumbents want to kill both measures to make it easier to stay in power. This is bad enough, but the tricky language they’ve employed makes it worse.

The first referendum asks voters if they’d like to adopt a three-term limit for city officials — without informing voters that they have already adopted a two-term limit. It’s written in such a way to make voters think that if they want term limits, they should vote Yes, when, in truth, those who favor term-limits would likely want to vote No and keep the shorter term limit in place.

The second referendum would repeal IRV and go back to the way things were before its adoption, which would mean separate runoff elections for some council districts. But the ordinance fails to inform voters that doing so would cost the taxpayers more than $100,000 per year. This is a problem because a state statute says that the city is supposed to include an accurate estimate of the fiscal impact of such a ballot measure.

Indeed, in 2008, when voters first overwhelmingly passed IRV, the city complied with the statute and informed voters on the ballot that adopting IRV would save taxpayers $250,000 per year. This year, rather than informing voters that repealing IRV would cost $250,000 per year (or something in that range), the ballot says it’s impossible to estimate. It was possible in 2008, but impossible in 2018?

The third referendum would kill IRV by providing for plurality elections in all council districts, outlawing runoffs of any kind, “instant” or otherwise. Using this system, a candidate in a crowded field could win with only 25 percent of the vote, even if he is the least-preferred candidate of the majority of a district’s voters. Music to an incumbent’s ears.

This referendum directly contradicts the second referendum: Either we are using runoffs or we aren’t. It is fatally confusing.

We pointed out wording problems with the referenda as far back as last December, and we have been pointing out the fiscal-note problem repeatedly. Yet no corrective action was taken. It’s hard to escape the conclusion that the fix is in, that our leaders are either indifferent to — or hoping for — the voter confusion their language will cause.

Voters already complain that such ballot questions are worded in incomprehensible legalese. This is true and unnecessary: Neutral “plain language” explanations are required in other jurisdictions. These three referenda are even worse than normal.

What can you do about it? Vote No on all three, for one thing. Support “Save IRV,” for another, so we can get the word out. You can find out more at saveirvmemphis.com, as well as donate, volunteer, and get a yard sign.

There are sound policy reasons for voting No on all three referenda, starting with the simple observation that the people voted for term limits and IRV 10 years ago and neither has been implemented yet. But the misleading text is yet another reason. Supporting these referenda is rewarding bad behavior by the Memphis City Council.

Don’t let them get away with it.

Steve Mulroy is a law professor at the University of Memphis and a former Shelby County commissioner.

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Respect the Voters

In 2008, in a series of referendum votes, Memphis voters made clear how they wanted Memphis City Council elections to work. This year, the city council is systematically disrespecting the voters’ preferences through a series of votes for referendum do-overs this November. The result will be voter confusion at best and, at worst, the entrenchment of incumbents in an undemocratic system.

Currently, the council consists of seven members elected from single-member districts, and six members elected from “Super Districts” electing three members each. In the single-member districts, if no one candidate gets a majority, the top two vote-getters advance to a separate runoff round six weeks later. As described by John Marek in these pages last December, these expensive runoffs typically have only 5 percent turnout, a turnout that is disproportionately white and affluent.

In the Super Districts, no majority is required. A candidate can win with 38 percent of the vote if she has more votes than the other five candidates. This “plurality” system can allow the majority to split its votes among several similar candidates, allowing the least-preferred candidate of the majority to squeak by with 38 percent of the vote.  That’s how Donald Trump, who polling showed would have lost in head-to-head contests against candidates like Mario Rubio and Ted Cruz, won the early primaries to become the front-runner and eventual Republican nominee. 

It’s a system subject to manipulation and collusion. An established candidate can recruit a “shill” candidate to enter the race and split the opposition’s voting bloc, allowing him to prevail with a bare plurality. The plurality system is arguably an even worse system than regular runoffs.

The solution to both problems, overwhelmingly approved by voters in 2008, is Instant Runoff Voting (IRV), where voters rank their first, second, and third choices. This ensures a majority winner, without the need for an expensive, low-turnout second election. It saves time and money, boosts participation, makes the electorate more representative of the district as a whole, and discourages negative campaigning (because candidates want to be the second choice of their opponents’ base and will be loathe to alienate them with mudslinging). IRV is slated to be phased in for single-member districts in the next city council election in 2019, with eventual implementation in all city council districts thereafter.

Last December, before IRV even had a chance to be tried once, the council voted to place a repeal of IRV on the November referendum ballot. Now, the council is about to add another competing referendum on the ballot: a proposal  to use plurality voting for all city council elections, even the single-member districts that have used regular runoffs. Both measures would kill IRV if approved by voters in November. 

Currently, there is no announced plan to withdraw the December “regular runoff” referendum measure in deference to the plurality plan (though that, of course, could change).

If you’re confused about how two contradictory measures can be on the ballot side by side, you won’t be alone. It will cause needless voter confusion in November. Some local commentators have suggested that if both are on the ballot, and they both pass, the plurality measure would make the regular runoff measure moot. That’s not at all clear: The language of the two measures is directly in conflict. Passing both would cause legal uncertainty.

The mess underscores how desperate some council incumbents are to eliminate Instant Runoff Voting, which opens up opportunities for lesser-known, lesser-funded candidates to enter the system.

Also illustrative of the incumbency protection is yet another referendum measure about to pass, which would undo another 2008 referendum result: In 2008, referendum voters said they wanted council members limited to two terms. Again, before there’s even been a chance to put that into effect, council members are pushing a referendum measure which would extend that from two terms to three terms. Conveniently, it applies to current council members.

The consistent theme here is that many city council members don’t care what the voters decided in 2008. They know better, and they’re going to push through referenda to craft a council election system most congenial to them.

We should reject all these proposals, give IRV a chance, and respect what the voters said in 2008.

Steve Mulroy is a University of Memphis law professor and a former Shelby County Commissioner.

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The Omen of Arpaio: Open Season on Latinos

Well, he went ahead and did it.  Last Friday, President Trump pardoned Joe Arpaio, the former Arizona sheriff who illegally used racial profiling to enforce immigration laws.  

Trump has the legal power to pardon pretty much anyone. But pardoning Arpaio sends the message that state and local officials can aggressively enforce federal immigration law, even if it risks racial profiling and violating the due process rights of both citizens and noncitizens.

Joe Arpaio

Arpaio’s Violations:

Arpaio was for decades the elected sheriff of Maricopa County, Arizona, the county that includes Phoenix. He has long been known for his harsh practices like requiring inmates to work on chain gangs and live in outdoor tent cities in the scorching Arizona heat. He prioritized immigration enforcement at the expense of crimes like sexual assault. He also jailed some people who criticized him, including two reporters who successfully sued him for false arrest. 

In 2011, a federal court found that Arpaio’s sheriff’s department unconstitutionally racially profiled Latinos. Basically, he had his deputies stop, detain, and interrogate Latino people — U.S. citizens, legal immigrants, and undocumented immigrants alike — on suspicion of immigration violations, without probable cause.  

The court later noted that state and county officials had no authority to enforce federal immigration law without authorization from the federal government. Arpaio had no such authorization, because Homeland Security stripped Maricopa County of such authority, based on U.S. Justice Department findings of rampant abuse. 

State and local cooperation can be helpful in enforcing federal law, but when it comes to immigration, federal law usually preempts state law. State over-enforcement of immigration law can interfere with federal policy. So, state officials should enforce federal immigration law only where the federal government asks them to.

More fundamentally, no federal or state official can legally target people for immigration-related stops and questioning just because they look Latino. And as the Supreme Court has stated, even non-citizens have the right to due process and to be free from racial discrimination, as long as they are present in the U.S. Arpaio thus broke the law by violating individuals’ Fourth Amendment rights to be free from unreasonable search and seizure.

The court ordered Arpaio and his office to stop using race as a factor in its enforcement decisions. His deputies could detain individuals based on probable cause that they had violated some state law, but not merely because they suspected them of being in the U.S. illegally. 

In July, another federal judge convicted Arpaio of criminal contempt for intentionally violating the first court’s prior orders. His sentencing hearing (now moot) had been set for this October.

The Pardon’s Effects:

It’s very unusual for a president to pardon someone before they’re sentenced. Doing so suggests that Trump felt Arpaio did nothing wrong. Trump made that clear by publicly praising Arpaio for his “admirable service” and saying he was “convicted for doing his job.” (Apparently, a sheriff’s job includes harassing Latinos and violating privacy rights.) Phoenix mayor Greg Stanton called the pardon “a slap in the face to the people of Maricopa County.” 

The pardon could encourage other like-minded state and local officials to racially profile Latinos. More broadly, it may encourage state and local officers to aggressively enforce federal immigration law. Many experts and law enforcement officials criticize such state and local enforcement, saying it erodes trust with immigrant communities, making them too fearful to report local crimes and cooperate with police. 

Arpaio’s pardon does not mean a complete clean slate for him. It would not erase a separate court ruling from 2016 that found him in civil contempt of court. Civil contempt is a non-criminal finding, which could require remedial measures like court-ordered reforms, reporting requirements, and the like. These do not fall under the reach of the president’s pardon.

Nor does a pardon mean that he or his department are allowed to return to their unconstitutional practices. Arpaio himself is now out of office, having lost his most recent election. And the Maricopa County Sheriff Department is still under a court order to refrain from racial profiling and other illegal immigration enforcement efforts. 

But the pardon may embolden immigration hawks and infuriate Trump’s opponents — which, in the end, might very well be the intention.

Former County Commissioner Steve Mulroy teaches constitutional and civil rights law at the University of Memphis.

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After TrumpCare’s Fall

Now that the thrown-together Frankenstein’s monster that was TrumpCare has failed in Congress, the time may be ripe for common sense reforms which can save the essential elements of Obamacare. People who care about a humane system of universal coverage should be very clear about what needs to stay and what needs to be added.  

Keep What’s Good: We should acknowledge that the Affordable Care Act (ACA) has done far more good than harm. It’s enabled over 20 million people to get access to health care, cutting our uninsured rate in half from 20 percent to 10 percent. Insurance companies can no longer deny people coverage for preexisting conditions, kick people off for getting sick, or deny essential benefits like cancer screenings, birth control, or mental health services. Young people can stay on their parents’ policies until they’re 26.  People no longer have to go bankrupt because of an unexpected health crisis or avoid preventive care because of cost, thus making themselves sicker.

Steve Mulroy

The ACA cost about one-third less than expected and decreased the budget in the process, far from the “disaster” claimed by Donald Trump and Paul Ryan.Contrary to Trump and Ryan, the ACA is not in a “death spiral.”  Enrollment last year in the ACA “health-care exchange” insurance markets was brisk and is expected to continue. True, it is possible that Republican officials can cause a death spiral if they continue to sabotage the ACA. GOP governors and HHS Secretary Tom Price can place regulatory chokeholds on the dreaded Obamacare.

Real Problems: The ACA does have problems. We’ve seen health premiums rise the last few years. True, they’re lower than they would have been without Obamacare (given the out-of-control, pre-ACA inflation rate), and the ACA subsidies have absorbed most of those extra costs for most people, but it would be troubling if this trend continues.

Worse, insurance companies have pulled out of the ACA health-care exchanges, such that in about one-third of U.S. counties, there is only one provider available, depriving consumers of choice and all of us the competition needed to keep health costs low.

The solution to both problems is to get more people, even healthy people, into the system. This lowers the per-person cost for everyone and incentivizes insurers to participate, increasing choice and competition.  

Real Solutions: We should thus “fix it, not nix it.” Here are some possibilities:

Single-Payer: We should be pushing hard for a “Medicare for all” plan.  Medicare has the lowest administrative overhead (only 2 percent) of any player in the system, including the supposedly efficient corporations, because it doesn’t have to advertise, market, or attract overpaid executives. This system could replace the ACA as we know it and solve in one fell swoop the problems of universal coverage, rising costs, and choice. Almost as good is Hillary Clinton’s proposal to expand Medicaid and reduce eligibility for Medicare (to, say, 50).

Public Option: If that’s not feasible, we can reintroduce the “public option,” which lobbyists took out of the original ACA bill.  Especially in counties with only one provider on its exchange, the government could offer competition with a public-run insurance plan — like Medicare. 

Miscellaneous Tweaks: We should insist on a grab bag of adjustments which would bring in customers, reduce costs, and provide long term stability.

Carrots & Sticks: Everyone’s supposed to buy health insurance or pay a penalty if they don’t. The penalty’s small enough that young, healthy people would rather pay it than sign up for insurance. This needs to change. To that “stick” we can add the “carrot” of increased subsidies to get people to buy into the system.

Bargain Down Drug Prices: Thanks to a Bush-era sellout to Big Pharma, the federal government is currently barred from negotiating to reduce prescription drug prices. This should change, too.

Extend the “Risk Corridors”: The parties ought to be able to agree to extend the so-called “risk corridors.” Under the “corridors,” insurers pitch into a pool, which compensates insurers who lose money on the exchanges. These “pools” are due to expire. Yes, it’s a bailout of big corporations, but it’s one way — politically, the easiest way—to keep the health exchanges functioning. 

For more information (on both sides), check out this Friday’s all-day symposium on the Future of the ACA, held at the University of Memphis Law School.

Former County Commissioner Steve Mulroy, the Associate Dean at the University of Memphis Law School, prepared these points for a Federalist Society symposium on health care this week.

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Justice Denied by Partisan Politics

CREDIT: Steven J. Mulroy

The dog that did not bark in the 2016 election was the long-delayed nomination of Merrick Garland to fill the vacant Supreme Court seat. In an unprecedented move, the Republican-controlled Senate vowed not to consider Garland, but instead to wait for the next president to select the next court justice. Just recently, Senator John McCain suggested that a GOP-controlled Senate might not even consider a nominee from the next president, if that president is

Steven J. Mulroy

 Hillary Clinton. (He has since walked back this comment, but the overall impression is troubling.)

This issue deserves more attention than it has received. Several important cases this term were tied 4-4, and the Supreme Court has accepted fewer cases of import for this term because of the risk of deadlock. When the court doesn’t decide important cases, uncertainty rules, and important rights go unvindicated.

But the problem is worse than you might think, because of a related, unsexy but crucial issue of judicial gridlock: confirmation of trial court judges.

The Supreme Court nominations, of course, get the most attention, and for good reason: They’re the final word, especially on constitutional questions. Next in line for attention are the intermediate appellate-level judgeships one level below the Supreme Court, the Circuit Courts of Appeals. In these two categories, confirmation obstruction and high vacancy rates have not been a crisis in recent years — with the (huge) exception of Garland.

But a different pattern emerges at the lowest level, the trial courts known as federal district courts. This is where the rubber meets the road in the federal judicial system, the workhorses over the showhorses. This is where federal criminal trials occur, where consumer, civil rights, and environmental cases get their hearing. The vast majority of cases get a final resolution at this level and are not appealed.

It’s here where the confirmation rate has slowed dramatically in the last two years.

As a result, district court vacancies have more than doubled since last year, to 77. More than half of those have been vacant for more than a year, and a quarter for more than two years. That’s over one out of every 10 trial-level judgeships vacant, and the trend line is disturbing.
This sluggish replacement rate has real-world effects. Criminal cases take longer to get to trial, and defendants, including innocent defendants, stay in jail longer awaiting trial. Civil cases get pushed to the back of the line, with the delays there even longer.

The U.S. Administrative Office of the Courts has a special category of “judicial emergencies” based on case filings per judgeship, length of the judicial vacancy, and other factors. By this official measure, over a third of the 75 current vacancies are considered “emergencies.”

This gridlock hits home here in Memphis. We currently have one full-time district court vacancy out of 77 vacant. Last year, based on the recommendation of Representative Steve Cohen, President Obama nominated Ed Stanton III, the eminently qualified U.S. Attorney.

Stanton’s nomination has been pending on the Senate floor since it was reported out of committee last October. Just recently, U.S. Senator Cory Booker protested on the Senate floor the attempt by Senate Majority Leader Mitch McConnell to put through what he called a “bipartisan package” of proposed judicial confirmations, a package which skipped over a New Jersey district court nominee and Memphis’ Stanton. Senator Booker complained that the only two African-American candidates on the list were skipped, despite the fact that they are among the longest-waiting nominees.

The irony is that these trial-level judges are the least political of all. Supreme Court judges, and to a lesser extent appellate judges, can use their policy preferences to inform their legal decisions. But trial judges are much less free to do this, because so much of their freedom of action is restricted by binding appellate precedent. If they don’t follow this precedent, they can get reversed.

A number of solutions exists to this problem. Currently, senators are allowed to place anonymous “holds” on pending nominees, indefinitely delaying consideration. No one senator should have this power, and any senator wanting to delay a nominee should publicly own up to it and give a good explanation.

But more important, we should acknowledge that at the trial level, it’s not about politics, it’s about garden variety justice. It is not less true for being a cliché: Justice delayed is justice denied.

Steve Mulroy served two terms on the Shelby County Commission, and is assistant dean at the University of Memphis Law School.

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The Case for Single-Member Council Districts

Quick quiz for Memphians, as elections approach: Who’s your city councilman?

It’s a trick question. You have four city councilpersons representing you: one in your local single-member district, and three more from an overlapping large, multimember “Super District” covering half the city.

Overall there are seven single-member districts covering all of Memphis, with two Super Districts overlaid on top, each electing three councilpersons.

Some of you may know that, but I bet many of you didn’t or forgot. And even fewer know exactly how the Super District candidates run. Do they all run against each other? Are there “sub districts” within the Super District?

Actually, neither. Candidates must choose to run for one of three “numbered positions” within each Super District, and then compete only with those candidates who have chosen to run for that numbered position.

Confusing? Yes, and needlessly so. This patchwork quilt could be made simpler and better by switching to 13 single-member districts, as some activists and city council members have urged, and as the county commission did a few years ago.

Under this proposal, each voter would have one city councilman in a small, neighborhood-based district.

In addition to being less confusing, there are other advantages. Each single-member district would have about 50,000 people, compared to the 326,000 people in each Super District. This would make it easier for a voter to get his representative’s attention and to affect the outcome of the election. It would also make it easier for an official to communicate with constituents.

Additionally, it would reduce the unfair advantage that incumbents have in elections, making elections more competitive. A dedicated candidate can knock on the doors of likely voters in a district that small and doesn’t need a huge campaign war chest to send advertising to hundreds of thousands of people. A less well-funded, less well-known challenger can have a fighting chance. This increased competition would be good for everybody and might even increase turnout.

The resulting redistricting plan would be more representative of the popular will. Any time you carve a city up into districts, there is an imperfect correlation between 1) the city-wide percentage of Republicans versus Democrats, liberals versus conservatives, blacks versus whites, etc., and 2) the number of districts with a majority of Republican/liberal/black voters.

When you have smaller districts and more fine-tuned districting, that correspondence improves. That’s why federal courts in civil-rights suits have for decades favored single-member districts and disapproved of multi-member districts, because of their inherent tendency to dilute the minority vote.

Advocates of the current system say that single-member district representatives tend to have a parochial focus on the narrow concerns of their small area, and that you need the counterbalance of Super-District representatives to take the larger, city-wide view.

This is a valid point, but I’m unsure how much it works in practice. I served on a county commission with one single-member district and four multi-member districts. I did not see this feared dynamic of geographic parochialism at work.

Also, the new county commission has now converted from a mixed single- and multi-member district approach to 13 single-member districts. (Full disclosure: They did this at my urging.) I have seen no rise in parochialism.

Anyway, Memphis doesn’t use city-wide, at-large districts; we have one Super District for (whiter, richer) eastern Memphis, and one for (blacker, poorer) western Memphis. So, rather than a Memphis-wide view, those representatives are encouraged to take an East Memphis-versus western-Memphis view.

Another argument for the current system is that voters get to vote for four councilpersons rather than one. Converting to single-member districts would, in effect, be taking away three of your votes.

This, too, is a valid concern. But with the state of voter confusion about the city council system and the 326,000-person size of our Super Districts, I wonder just how empowering those three extra votes are. Does their theoretical value outweigh the new proposal’s advantages in curbing voter confusion, increasing electoral competitiveness, facilitating constituent-representative communication, and making the overall redistricting plan more representative?

On balance, I lean toward neighborhood-based representation. It’s a change that the city council could make with a charter amendment to be presented to the voters in a future election. As you prepare for next month’s city council elections, ask your city council candidates what they think, and think about it yourself as you work your way through that ballot. Steven Mulroy is Associate Dean at the University of Memphis’ law school.

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Getting the Vote Right in Shelby County

Another Shelby County election, another election controversy. This time, it’s the County Commission race between Reginald Milton and Martavius Jones, where a thin 26-vote margin separates unofficial winner Milton from recount-demander Jones.  

The time’s ripe to finally move to “paper trail” voting machines. In fact, this may be our last chance.

Welcome to the credibility gap: Shelby County’s record of election mishaps is too long to recount here. Highlights include thousands of voters being incorrectly turned away on Election Day (2010) to thousands of voters being given the wrong ballots (2012) to an overturned local election (litigation still pending). A state government audit of our county’s election office concluded that it had “an inability to conduct elections without significant inaccuracies.”

Other than that, though, it’s fine.

The public has a similar lack of confidence in the integrity of our elections, and both the County Commission and Memphis City Council recently passed resolutions saying they had no confidence in the election administrator.

This week, candidate Jones told the Democratic Party’s Primary Board that the election machine “tapes” posted at each polling place tell a different story from the electronic voting machine-generated unofficial count, making the Jones-Milton race a literal tie. The Primary Board then demanded the raw election return data from the Election Commission in an attempt to discover whether Milton really won over Jones. And there’s legal uncertainty over the kind of recount — manual or automatic — that Jones can demand, and when. 

None of this would be an issue if we replaced our purely electronic touch-screen Diebold voting machine system with an “optical scan” voting system that creates a voter-verified hard copy “paper trail.” 

The “optiscan” system would be familiar to anyone who’s ever taken the SAT, the ACT, the TCAP, or any other standardized test. Using a No. 2 pencil, voters fill in bubbles on a “scantron” sheet to mark their candidate preference, and insert the sheet into a machine that electronically scans and records the votes while locking the hard copy sheets away for safekeeping. In the event of a Jones/Milton-like squeaker election, a charge of fraud, or a computer glitch, the hard copies can be compared to the electronic record.

Optiscan is the national trend. In 32 states, it’s either used statewide or for a majority of voters. Nationally, only 1 in 4 voters uses a purely paperless touch-screen system like ours. Here in Tennessee, optiscan has been used successfully for more than a decade in Pickett and Hamilton (Chattanooga) counties.

Not only would optiscan machines keep elections honest and accurate, they would cut waiting time at the polls. At your polling place right now, only three voters at a time can vote, on three different touch-screen machines. With optiscan, 10 voters could take their time at 10 privacy carrels filling out their ballots. When they’re ready, they can then feed their ballot into the machine. Think about that this August, as you wait in line for the voters in front of you to slog their way through the “long ballot,” filled with judicial candidates who come up once every 8 years. 

If we buy now, we can get new machines at half price. Our current voting machines are about 10 years old, and will need to be replaced in the next few years anyway. And right now, millions of dollars of federal funds are sitting in a bank account in Nashville, available for us to help pay for the new machines. These “Help America Vote Act” (HAVA) funds can only be used for election reform. 

But if we don’t ask for them this year, they could be given away to other Tennessee counties. That’s why the Election Commission recently asked an internal county budget committee for $1.5 million in capital funds for optiscan machines, expecting a state HAVA grant match of $2.7 million or so. The Election Commission later withdrew that request in deference to another capital budget project, but it was right the first time. 

Optiscan will require us to pay ongoing paper costs, which can be expensive. But we’ll likely save money in the long run, because you need about one-third fewer optiscan machines than touch-screen machines, with resulting savings in machine maintenance, storage, and transport. 

We need voting-machine reform now more than ever, and this may be our last chance. Tell the County Commission and Election Commission to budget for optiscan this year. The next time there’s a close election, we’ll all be thanking them for it.

Categories
News The Fly-By

“The numbers don’t lie. Thousands fewer low-income women are getting the family planning services they need. We need to take a second look at this.”

— Shelby County Commissioner Steve Mulroy on the issue of Christ Community Health Services (CCHS) serving fewer women than Planned Parenthood did when it held the county’s contract for federal Title X funding. Mulroy co-sponsored a resolution to not renew CCHS’ contract that failed in the Shelby County Commission this week. He was one of the commissioners who voted in favor of CCHS getting the Title X contract in 2011, but now he says CCHS hasn’t held up its end of the bargain. County Health Department numbers show that CCHS saw 1,471 patients in all 12 months of its second year of receiving Title X funds whereas Planned Parenthood saw 1,488 patients in the three final months of its funding. Mulroy has vowed to keep fighting.

Categories
Opinion Viewpoint

Haslam’s “Gift” to Poor Tennesseans

This Christmas, Tennessee could have given a quarter-million poor Tennesseans the gift of health insurance without spending a dime of state funds. Instead, we’ve turned down billions in federal dollars, threatening the financial life of rural hospitals across the state and of the Med here in Shelby County.

Steve Mulroy

The reason for this Grinchism? Ideological disdain for anything connected to “Obamacare.”

Under the Affordable Care Act (ACA), Tennessee stands to gain billions of dollars in federal funds to get an estimated 250,000 poor, uninsured persons the health insurance they need. The feds pay 100 percent of the cost for the first three years and 90 percent after that. So far, 25 states have already signed on.

Last March, Republican Tennessee governor Bill Haslam rejected Medicaid expansion. He explained that he would ask the federal government for permission to try a “third way” of using the federal funds to help the uninsured buy private insurance through the “health care exchanges” set up under the ACA. This free-market, private-sector solution ought to appease conservatives. And the feds have already approved a similar proposal in Arkansas. 

But, nine months later, the governor hasn’t made a formal proposal to the feds, and the whole thing is stuck in indefinite limbo. He’s being pressured to avoid taking the federal funds by the right wing of his party in Nashville, which opposes Medicaid expansion in any form.

This is unacceptable. We cannot play “political chicken” while the poor get sick and die for lack of insurance.

Expansion will provide the poor and uninsured the chance to get preventive care — such as breast cancer screenings, treatment for chronic diseases like diabetes, and prenatal care, which is so crucial here in Shelby County, with its Third-World-level rates of infant mortality.

A New England Journal of Medicine study of states that have already expanded Medicaid shows that it reduced death rates by more than 6 percent. And this preventive care not only improves health outcomes, it saves money. Preventive care is much cheaper than waiting until you need to go to the emergency room (or simply using the ER as a free medical clinic).  

The economic benefits are just as great. Tennessee stands to get well over $1 billion per year over the next five years. A University of Memphis study estimates that these federal funds would create 20,000 new jobs across the state. That’s why the Tennessee Chamber of Commerce and the Memphis, Nashville, and Chattanooga Chambers of Commerce have all endorsed the idea of using these federal funds to expand health insurance coverage. 

Further delay prevents these benefits, obviously. But it’s even worse than you think. Because the ACA contemplates that poor people will be covered through Medicaid expansion, it scales back certain federal payments called “DSH funding,” which compensate hospitals (like the Med) that treat for free a disproportionate share of poor patients. The Tennessee Hospital Association estimates that these cuts will total $3 billion over the next five years and cost the state well over 10,000 jobs. Added to the benefits we lose by forgoing the ACA’s federal dollars and the jobs that go with them, we’re talking about a decision which by 2019 will cost Tennessee more than $9 billion and 30,000 jobs. That’s a pretty high price to pay for ideological purity.

And those DSH cuts will hit the Med especially hard. Without the ACA funds to make up for them, the Med will be on the ropes (as will similar charity-intensive hospitals in rural counties). Tennessee needs Medicaid expansion next week, but Shelby County needs it tomorrow.

Opponents of expansion say that we can’t trust the feds to keep their word, that in future years the federal contribution will drop below 90 percent and Tennessee will be stuck picking up the tab. But if the feds do renege on the deal, we can always drop out. That’s the approach taken by Arizona, Ohio, Nevada, Florida, and New Mexico, each of which has stipulated that it will cancel or reduce its participation if the feds don’t hold up their end of the bargain. 

Whether or not Tennessee expands coverage, Tennesseans must pay the federal taxes that fund these benefits nationwide. We can either have those dollars come back to us, or we can have them go to other states.  

The county commission will discuss this issue in January. We should urge it to join the coalition of businesses and health-care professionals asking Governor Haslam to act and to act now. The health of our citizens, our hospitals, and our economy depends on it.

Steve Mulroy is a member of the Shelby County Commission.