Thoughts on the Oakland Special Election

Yesterday, I got my absentee ballot in the mail.  That might not seem so special, except that here in Oakland, everyone is getting an absentee ballot in the mail.  This is the first time I can recall a mail-ballot-only municipal election.  (There have been, of course, numerous mail-only elections for assessment districts and the like.)  With the high and increasing cost of running elections, it’s probably the wave of the future.  In fact, while there will be no polling places open, the City has called a special election for July 21st.

As to the subject of the election itself, the City Council called this special election as a last-gasp effort to avoid truly draconian cuts in the Oakland city budget.  Even as it is, the City is looking eliminating maintenance for many city parks, cutting back or eliminating a number of city programs, and generally cutting back city services.

Part of this is the City’s own doing (e.g., the failure of the city council to maintain adequate oversight over Mayor Jerry Brown and his city administrator as they spent money the city didn’t really have), but much of it is the result of a “perfect storm” of outside factors.  Those factors include the dismal state of the local, state, and national economy (and associated drop in business tax and sales tax revenue), the precipitous drop in the Oakland real estate market, with consequent drop in property tax  and transfer tax revenue, the cutbacks in state contributions to local programs (hopefully to be partially offset by federal “stimulus” dollars), and, of course, the long-term impacts of Prop. 13.  Added to that is the self-inflicted wound that Oakland voters perpetrated last November by enacting the “Kids First II” measure, Measure OO, which funded non-city kids’ programs at the expense of the city budget.

The four measures on the ballot are the city council’s attempt to reduce the damage from Kids First II and cobble together some additional short-term revenue sources.  If these measures fail, even more drastic budget cuts are lurking in the shadows waiting to pounce.

What are the measures?  Measure C increases the City’s hotel tax from 11% to 14 % to fund cultural and educations institutions (including the Oakland Museum, Oakland Zoo, and Chabot Science Center), as well as the convention & visitors’ bureau, that are currently funded from the general fund.  It requires a 2/3 majority vote to pass.   If it fails, those institutions will probably lose their City funding, and some or all of them may be forced to close down.

Measure D would replace the Kids First II measure (Measure OO).  That measure dedicated a percentage of total city revenue to kids’ programs.  Measure D would change this to a percentage of unrestricted general fund revenues.  This makes far more sense, since restricted funds are locked into their uses and essentially are “untouchable”.  It requires only a majority vote (as did Measure OO).  If Measure D fails, Measure OO would remain in effect and the City would be forced to cut many other services in order to provide the mandated level of funding for (non-city) childrens’ programs.  Measure OO was, to put it bluntly, a stupid and poorly-written measure.  We shot ourselves in the foot by passing it.  We’ll be adding a second bullet hole if we don’t pass Measure D.

Measure F would increase the business tax on medical marijuana sold in the City from $1.20 per $1000 (0.12%) to $18 per $1000 (1.8%).  It’s a whopping increase, but the current tax is miniscule.  (Compare it to the roughly 10% sales tax on general merchandise!)  As a general tax, this would only require majority vote approval.  Taxing medical marijuana may not be the best way in the world to gain revenue (a city tax on cigarettes or alcohol would be far better), but it’s one of the few politically acceptable revenue sources that isn’t pre-empted by state or federal law.  Again, if this goes down to defeat, there will be even more programs cut from the city budget.

Bottom line — If you don’t mind dealing with humongous potholes in the streets, broken streetlamps that don’t get fixed, closed fire stations, and being put on permanent hold when you call 911, by all means vote these measures down.  It’ll be one more step towards reducing government services to the point where government can be “drowned in the bathtub.”

If, on the other hand, you’d like Oakland to be something other than the world’s biggest cesspool, I’d recommend a YES vote on these four measures.

Incidentally, here’s the Oakland League of Women Voters’ recommendations on the ballot measures.  Like me, they recommend a YES vote on all four:

http://www.lwvoakland.org/VOTER-June-2009.html#election

Don’t forget, you do need to mail your ballot in so that it’s received on or before July 21st.  (Unlike a tax return, just a postmark won’t do the trick.)

The spook in the White House

Revealed!  There was a spook in the White House!!!  No, it wasn’t the ghost of Abraham Lincoln, nor that of his ten year old son, William Lincoln, who died in the White House in 1862.  Nor was it any of the other U.S. Presidents who died in office.  This spook is still alive and very much kicking.

As revealed this week, former Vice President Dick Cheney was instrumental in establishing a secret spying program in the CIA, and then hiding it from Congress.  Here’s an article on the program and Cheney’s role.

Of course, this news is not a big surprise to those of us who’ve gotten to know Cheney’s ways over the eight years when he pulled the strings on W’s puppet regime.  It all goes along with Bush-Cheney’s conception of the “imperial presidency”, where supposedly the Constitution granted the President (and, in his stead, the Vice President) plenary power to do whatever the hell they wanted to the country.

Doesn’t fit with your understanding of what the Constitution says?  No problem.  The Bush Jr./Bush Sr./ Reagan  majority on the Supreme Court stands ready, willing, and able to show you how to read it properly.  (Of course, George W & Co. didn’t quite get the chance to finish the job right in terms of the Court’s membership.  Those darned liberal justices were unwilling to retire or die quickly enough to pump up Bush’s majority position.  So now Cheney is  stuck with only wishy-washy some-time 5-4 majority to defend his actions, depending on how Justice Kennedy happens to feel on the issue.)

No matter.  The Bushes picked a bunch of young and healthy reactionaries to fill their court slots, so come 2012 when Sarah Palin sashays into the White House, she’ll certainly be able to complete the task.  (Of course, Palin’s landslide victory would come along with veto-proof Republican majorities in both houses of Congress, easily able to confirm anyone short of Adolph Hitler.)

In the meantime, wouldn’t it be nice if Cheney could be indicted, prosecuted, convicted, and sentence so at leas he’d spend a few days in a federal prison contemplating his illegal actions before Sarah Palin grants him (and George W.) a full pardon?

New poll supports retaining 2/3 majority on the budget, but poll itself is highly suspect.

A new poll done by students at U.C. Riverside reports that a majority of Californians still support the requirement that the state budget be passed by a 2/3 majority. The poll also indicates that Californians continue to support “ballot box budgeting” — setting budgetary priorities through the initiative process. However, some crucial details on the polling are missing, raising questions about its validity. In addition, some of the data on the sample of voters used indicates it was highly skewed, again raising questions about whether the results can be trusted.

The poll was based on telephone interviews by UCR students with 276 respondents. That in itself is a relatively low number. Consequently, the poll results have a relatively high degree of uncertainty — plus or minus 5.9%. Nevertheless, Professor David Crow, who taught the class taking the poll, insists that the differences measured were large enough to be significant.

A more troubling problem is that the poll gives no data on the geographic distribution of the respondents. The results of the May special election drive home the heterogeneity among the state’s voters, also demonstrated in the November 2008 general election results. (See earlier posts on those subjects for county-by-county maps.) Consequently, a skewed geographic distribution of respondents would likely result in a skewed set of poll results.

Even more troubling was one set of information that was disclosed — the income distribution of the respondents. The largest single class of respondents — accounting for over a quarter of those who agreed to supply financial data — had incomes of over $100,000 per year. This is far above the state’s median income and indicates that the poll’s sampling was badly skewed.
An earlier pre-election statewide poll had show similar results of support for retaining the 2/3 majority requirement, but it is possible that the new post-election budget cuts could change some voters’ minds. This poll, however, doesn’t appear to give a trustworthy answer to that question.

Here are the poll results:
UCR_California_Voters_May09[1]

And here’s a link to a Sacramento Bee blog entry that uncritically accepted the poll’s results. (tsk, tsk!)
http://www.sacbee.com/static/weblogs/capitolalertlatest/022708.html

Equality California’s Campaign Stategy

Equality California, one of the main groups working to overturn Proposition 8 and regain marriage equality for all Californians, has started working towards qualifying a 2010 ballot measure.  They’ve started opening field offices and hiring community organizers in those parts of the state where Prop. 8 collected most of its votes.  (see previous post for my analysis, which generally agrees with theirs.

Here’s a video where their campaign director (who led the fight to block repeal of Massachusetts’ gay marriage statute) explains their strategy [and solicits financial support]:

County-by-county results for Prop 8

Now that the California Supreme Court has decided that Proposition 8 is valid, the focus has shifted to the eventual political battle for its repeal.  (Two initiative petitions for its repeal have already begun circulating.)  The old saying that knowledge is power is still true.  If you want to know whose minds need to be changed, the place to start is the county-by county results for Prop. 8 last November.

Here’s the California Secretary of State’s map showing the county-by-county results:

County-by-county Prop 8 election results

and here’s a link to the Secretary of State’s ”flash-propelled” map:

http://www.sos.ca.gov/elections/sov/2008_general/maps/returns/props/prop-8.htm

  If you mouse over a county, the county’s vote totals will show up.  While some rural counties (like Tulare) had upwards of 75% YES, the counties that gave the big numerical pluralities to YES were San Bernardino and Riverside Counties, which gave almost a 200,000 vote plurality each (voting Yes by a two-to-one margin).  Fresno, San Diego, and Kern Counties each contributed about another 100,000 plurality to the Yes vote.  Together, these five counties account for the entire YES on 8 victory margin, and then some.  (A lot of other smaller counties also voted Yes, but they were balanced by the large counties — like San Francisco, Alameda, and San Mateo, that favored a No vote.)  Of course, Los Angeles county is so huge that a major shift there could override almost anything else.  As it turns out, it split almost right down the middle, with a very slight plurality for Yes.   A 5% shift in LA County’s vote would amount to 150,000 votes one way or the other.  Of course each of these counties might need a different strategy to win over those who voted for Prop. 8.  It’d be worth looking at the breakdown of the Prop. 8 results by ethnicity and religion to understand better whose minds need to be changed.

On Torture, the Constitution, and the Exclusionary Rule

I’m going to shift gears today from my recent series of posts and talk about something that has nothing to do with elections or California politics.  Instead, I’m going to discuss the question of what to do with the prisoners currently being housed at the “GITMO” — The Guantanamo prison facility built to house terrorism suspects.

President Obama has proposed dividing the GITMO prisoners into five categories, each with a different proposed treatment.  To cut to the chase, I agree with Obama about four of his five categories, but I take strong exception to how he proposes to deal with the fifth category.

The easiest category to address is those prisoners who apparently did nothing wrong — other than being at the wrong place at the wrong time.  Those prisoners should be promptly released.  They should also (although Obama hasn’t proposed this) be paid generous compensation for their wrongful imprisonment and be offered the formal apology of the U.S. government for its misdeed in holding them these many years without good cause.

A second category, at the other end of the spectrum, is those for whom there is good evidence supporting criminal prosecution on terrorism or other criminal charges.  They need to be brought to the U.S. and quickly brought to trial, with the full protections accorded by the U.S. Constitution.  Hopefully, justice will be done.

The third category is those for whom there is strong evidence of illegal acts of war.  They need to be treated as prisoners of war and tried under the military justice system, although again with the proper Constitutional protections afforded by that system.

A fourth category is those who committed no offense under U.S. law, but appear to have committed criminal acts properly addressed by another country’s justice system.  Unless there is good evidence that trial by that country would amount to unwarranted persecution, those prisoners should be promptly extradited to the appropriate country and brought to trial there. 

Finally, there’s one last, and highly controversial, category — those for whom there is good evidence of criminal offenses, including terrorism, but some of the evidence necessary for conviction was obtained by the use of torture or other means that violate U.S. Constitutional rights.  President Obama has proposed that these prisoners be relegated to a kind of permanent confinement limbo — detention without trial — due to their inherent danger if released.  I find this highly problematic.  It maintains the same fiction that the President bravely spoke out against during the presidential campaign — that practical expediency can justify voiding the Constitution’s protections for individual rights.  That assertion was wrong when applied to hundreds of prisoners; it’s still just as wrong even if only applied to two or three.

The crux of the problem is the exclusionary rule.  This rule, adopted by the Warren Court in the 1950s and 1960s, says that if evidence was obtained in violation of a defendant’s constitutional rights, that evidence cannot be used to convict the defendant.  A corollary is what’s often referred to as the “fruit of the poisonous tree” doctrine.  That rule says that not only is the improperly-obtained evidence excluded; so is any evidence developed based on the excluded evidence.  A classic example would be a murder suspect who’s interrogated without informing him of his Miranda (Fifth Amendment) rights.  If the suspect, during that interrogation, tells the police where he hid the murder weapon, not only his admission but also the murder weapon itself would be excluded from use as evidence.   The Supreme Court explained that part of the rule’s purpose was prophylactic — to deter police from being tempted to use improper techniques by denying them the “fruit” of such improper and unconstitutional actions.

The exclusionary rule is a very powerful and important rule.  It has done much to reform the activities of police and prosecutors.  However, courts have come to recognize a wide variety of exceptions to the exclusionary rule — situations where the exclusion of evidence isn’t warranted in spite of the Constitutional violation.  I would suggest that this last class of GITMO prisoners may warrant creation of an additional category of exception.

There’s little question that some GITMO prisoners were tortured.  There’s also little question that the evidence obtained by such torture, while potentially valuable, has reduced evidentiary value because it was obtained through torture.  Much psychological evidence shows that, under torture, a prisoner will say almost anything, including obvious falsehoods, to stop the pain.  There is, further, little question that an exclusionary rule absolutely prohibiting the use of evidence obtained during torture is a powerful deterrent to the use of torture.  Unfortunately, under the Bush Administration, it was apparently not powerful enough. 

We’re now left with a small group of prisoners who, under torture, revealed information implicating them of serious crimes.  Presumably, additional corroborating evidence has since been obtained, perhaps as the “fruit” of information obtained through torture.  The problem is that if all this evidence is excluded, there may well not be enough evidence to obtain a conviction.  Still, it’s not right or Constitutional to hold these prisoners indefinitely without allowing them the opportunity to try to prove their innocence.  What to do?

My suggestion, which would eventually have to be accepted by a court, probably the U.S. Supreme Court, would be to create a very limited and partial exception to the exclusionary rule for this situation.  To begin with, this exception would need to be retrospective only.  Its very creation would serve notice that it could not be invoked to “save” evidence obtained from future application of torture.  Second, the exception, while it would allow the introduction of evidence obtained through the unconstitutional use of torture at GITMO or other locations, would also allow the defense to introduce any and all evidence relevant to showing the questionable value of that evidence in terms of its credibility.  Third, and perhaps crucially, the exception would create a presumption that evidence obtained through torture was not credible, and the burden would be on the prosecution to show, by clear and convincing evidence, that the evidence had sufficient credibility to allow its introduction.  

Such a rule would be far from perfect, which is an important reason why its use would need to be limited to being retrospective only.  If allowed to be use in future instances, it could fatally undermine the prophylactic value of the exclusionary rule and encourage extremely dangerous abuse of the state’s police powers.  Further, the rule would also sap the value of the “poisonous fruit” doctrine, because the secondary evidence might not be directly linked to the torture, and therefore might have reasonably high credibility.  (Going back to the previous example, while the suspect’s confession might be of questionable credibility, the murder weapon, including such things as fingerprints, evidence of recent use, etc., would not share that lack of credibility.)

While the Bush administration’s actions have created a Hobson’s choice for dealing with those who underwent torture, the limited exception to the exclusionary rule that I have outlined seems far preferable to President Obama’s (and former President Bush’s) proposal of permanent unconstitutional detention.

Courage Campaign Petition

The Courage Campaign — a California progressive Democratic group with a strong on-line presence — is helping to circulate a short-and-sweet petition asking that the budget, and taxes, be approved by a simple majority vote.  Here’s the website for the on-line petition

http://www.couragecampaign.org/page/s/Declaration

It’ll be interesting to see whether this initiative goes anywhere.  It obviously runs directly counter to the right wing’s continued drumbeat for making it as hard as possible to fund the state (and local) government.  Thus far, Californians have appeared to like that beat, voting for Prop. 13, Prop. 218, and other ballot measures that have tried to curtail government revenue raising and expenditures.  (On the other hand, Californians have also passed numerous measures that either raised taxes for specific purposes or mandated specific government spending.)

The question is whether the past few years of repeated legislative stalemate over the budget have soured Californians (or at least a majority of them) on continuing to insist on supermajorities to approve government monetary decisions.

A recent Field poll (see my recent post, “California – State of Unreality”) said Californians still wanted to keep the 2/3 vote rule.  Still, in polling, it’s all-important how you ask the question.  I think things will have to get considerably worse to convince Californians to make it easier for government to access the purse.  Given the way things are going, however, that could happen pretty fast!

Dan Walters on the Special Election Results

So, here’s Dan Walters (the dean of Sacramento pundits) on the impact of yesterday’s election:

http://www.sacbee.com/capitolandcalifornia/story/1876481.html

As he puts it, California is moving into uncharted territory.  Reminds me of the old flat-earth map makers who, at the edge of their map would put the line, “Here there be monsters.”

If you want some real fun, read some of the comments submitted by Sacramento Bee readers.  It’ll give you an idea of just how totally wacko California voters are.

So Now What??

Predictably, California voters have emphatically turned town the compromise crafted between the governor, the Democratic legislative leadership, and a few pragmatic Republican legislators.  So now what?

Well, to begin with, what lessons have been learned?  The big one is — don’t compromise.  The voters don’t want compromise.  They prefer ideological purity.  Republicans voters went along with the Republican leadership that rejected the governor’s compromises because they involved new taxes as well as budget cuts.  Democratic voters voted down the measures because they weren’t willing to accept a budget cap or temporarily shift revenue from specially approved taxes to the general fund.

When the legislature goes back to trying to solve the budget deficit, there’s little doubt it’ll keep these lessons in mind.  That means there will be no compromises — and no budget.  That will put the ball squarely in the governor’s court, and his only option will be to make the kind of draconian cuts he’s been threatening — lay-offs, furloughs, and slashed programs.  Essentially anything that isn’t required by a federal mandate will be slashed.  In addition, the governor will as he has warned, attempt to “borrow” money from local governments.  (It’s not clear to me whether this part of his strategy would require legislative cooperation.  If so, I’d be willing to bet he won’t get it.)

Given that the governor will get little if any help from the legislature on these matters, there are limits to what he can do.  The question is it’ll be enough to forestall defaults on state bonds and lawsuits from state vendors over non-payment of their bills.   I wouldn’t bet on it.  [Maybe the state can't go bankrupt, but lawsuits from angry vendors and bondholders could result in courts taking almost as much power over state finances as a bankruptcy court would have.]  I think we can look forward to a year in which few businesses will want to do business with the state, and nobody will want to buy state bonds.

Without bond funding, even more programs will have to be cut.  Between that and lay-offs, look for unemployment to rise even more — maybe to levels not seen since the great depression.  This summer doesn’t look to be a good time for the Golden State.

Endorsement Update

A few more ballot measure endorsements, for those keeping score. Obviously, the Governor has endorsed all seven ballot measures, as has the state Democratic Party leadership, including AG (and gubernatorial candidate) Jerry Brown. The Democratic Party itself, however, has taken no position. At its convention last month, while a majority of delegates voted to support some of the measures, no measure reached the 60% threshold for endorsement. The Republican Party, showing no such reluctance, has endorsed a NO vote on all the measures, as have Republican gubernatorial candidates Meg Whitman and Steve Poisner. Rival Republican candidate Tom Campbell has taken a more nuanced stance, supporting 1A, 1D, and 1E, but opposing the remainder. California’s two Democratic senators, Boxer and Feinstein, have endorsed all seven measures, although Feinstein qualified her endorsement, calling it a Hobson’s Choice (i.e., a choice offering no good alternative).