September 2006
Sept. 28, 2006
(Distributed to Kansas newspapers Sept. 25, 2006)Bad either way...
What if, at a funeral of a person who died of AIDS or maybe a soldier killed in Iraq, a protester showed up and held aloft a garish sign asserting that the deceased owed him money?
The family and friends of the deceased would, of course, be shocked, angry, and feel that their solemn ceremony had been horribly marred by the protester. Could the bereaved call the police to have the protester arrested?
What if at a funeral, a mourner showed up wearing a red suit or dress, or even a clown costume, an action that would understandably be viewed as tasteless and disruptive? Call the cops?
Yes, one can trivialize the trauma and upset that is caused on a pretty regular basis by members of Topeka’s Westboro Baptist Church, holding aloft signs asserting that because America tolerates gays, that deaths from disease or war are God’s punishment to the United States.
That’s tough stuff. Nobody wants soldiers’ funerals picketed by Westboro Baptist Church.
But unless someone can confine a funeral service to private property, or maybe military property, that 1st Amendment right to free speech, no matter how tasteless, is going to be very difficult to abridge…and it should be.
Because the funeral pickets are so abhorrent, they open the door to infringement of free speech, initially for funeral pickets, but probably at some point, some other sorts of protected expression. A bill introduced into Congress by Rep. Todd Tiahrt, R-Kan., would “provide legal protection against frivolous lawsuits directed at statutes prohibiting picketing at military and other funerals.”
The bill basically would prohibit those arrested or otherwise prevented from picketing at funerals from being awarded legal fees or damages as a result of suing governments which have enacted anti-funeral picketing.
The concept is that nobody should profit from something as abhorrent as funeral picketing, and winning legal fees and costs or other damages for being prevented from exercising the right of free speech is just that. But, at some point, it means that only those with the money to enforce their rights get to sue for their rights. That doesn’t sound right, does it?
The second bounce of the Tiahrt bill is that the Kansas Legislature or local units of government would be willing to pass anti-picketing laws—apparently only if they don’t run the risk of having to pay damages for violating this tiny niche of freedom of expression. That’s pretty crass—understandable and maybe politically popular—but crass.
If suing to protect even a tasteless expression of a constitutional right is hindered, what of those who televise that picketing or run photos of it in the local newspaper? That’s pretty tasteless, too. Do TV station managers and newspaper publishers get arrested?
See how trying to do something very basic—protecting the bereaved from embarrassment and taunting, honoring servicemen, showing support for the troops—gets very complicated very quickly?
There may be another way to stop funeral picketing. Surely someone will think of it.
But preventing even for a narrow purpose—initially—Americans from defending their constitutional right to free expression doesn’t seem like the way to go about it. As unpleasant as it might sound, it might just be simpler just to arrest funeral picketers, drive them around for an hour or so in a bus and pay them for their time.
Sept. 21, 2006
(Distributed to Kansas newspapers Sept. 18, 2006)Something isn't right here?
You don’t hear much about the Kansas Court of Appeals. Most court cases are either settled at the district court level—that’s your local county courthouse—or come to our attention when they hit the Bigs: the Kansas Supreme Court.
Except maybe a little case that an Appeals Court panel decided last week that is probably right, but just has a funny feel to it.
Here’s what happened. A driver in Johnson County was stopped by a policeman because he had a taillight out. That’s one taillight. The other one worked and the little brake light that is in the rear window of most modern cars was working. So, there were two lights working, one not.
Well, the policeman who stopped the car didn’t remember that state law requires two taillights. He saw one wasn’t working and found that reason enough to stop the vehicle. Turns out, two taillights is all you need to meet the letter of the law, so there wasn’t a reason to stop the car.
Got that so far? Well, after the car was stopped, the officer smelled liquor, had the driver take a breath alcohol test, the driver failed it and subsequently had his license administratively suspended. Nobody said the driver wasn’t legally drunk—not even the driver.
A Johnson County judge ruled that the car shouldn’t have been stopped, the breath test shouldn’t have been performed. That sounds right so far, doesn’t it? There is that business about having probable cause to stop a vehicle, an “articulable suspicion” that something isn’t legal. Well, the local judge dismissed the DUI crime case and the administrative license suspension, but the Kansas Department of Revenue argued to the Appeals Court panel that it didn’t matter whether the car stop was legal or right or justified, just that the driver failed the breath test.
Hmmm… Maybe that’s about the place that the peculiarly American presumption that “something isn’t right here” kicks in. With no lawful right to stop the car, doesn’t that make the evidence—the breath test—inadmissible? Isn’t that what we see on TV most nights?
Well, the Appeals Court panel didn’t go that way. Here’s roughly what it said: While a reasonable suspicion that a crime has been committed is required to stop a car for investigation of a criminal violation—a defective tail light—once there is the information that the driver was DUI, well, a new standard kicks in. The Department of Revenue doesn’t prosecute crimes, it administratively polices the privilege of driving a car. Nothing about how the evidence was obtained or being able to challenge the license suspension based on an unlawfully obtained DUI test are applicable to the administrative hearing.
That probably shortens the hearings, don’t you think?
“We conclude that in Kansas the reason a law enforcement officer originally stops a person has no relevance at an administrative hearing to suspend the driver's license of that person for failing a breath test,” the Appeals Court said.
Now, we’re not expecting anyone to do anything about the decision. What legislator wants to seem to side with drunk drivers who may be drunk but have all their tail lights working correctly and were, of course, in the final analysis, drunk?
The action of the Department of Revenue wasn’t enforcing a criminal sanction, it was merely an administrative function to keep the road safe for those with driving privileges. The administrative rules and regulations don’t seem to care where the information (the DUI test) came from or how it was obtained, just that it was there.
You gotta wonder whether a cop might notice a driver wearing a Mousekeeteer hat with those plastic ears, or a woman whose hair was a mess, or maybe just someone who doesn’t look “right,” and stop the car and administer a breath test knowing that a DUI criminal case would be tossed but the driver would get an administratively suspended license?
Sept. 14, 2006
(Distributed to Kansas newspapers Sept. 11, 2006)Strategy or not?
By tradition, the Kansas Farm Bureau arena at the Kansas State Fairgrounds in Hutchinson is where gubernatorial campaigns take a fairly dramatic turn.
It’s where in past years, the primary elections that got the candidates to that forum are left behind. The entire nature of the campaign changes into one that is designed to appeal to broader audiences—not just to those registered and virtually locked into one ballot at the primary election but a campaign that appeals to everyone who shows up at the polls in November.
Much is made of the State Fair debate, but actually only a small percentage of voters watched it live or listened to it on the statewide radio network that broadcasts the event. However, it is the event itself that marks the change in campaign style and emphasis.
Or, it has up to this year’s debate last Saturday between Democratic Gov. Kathleen Sebelius and Republican challenger Sen. Jim Barnett, R-Emporia.
Sebelius, who didn’t have a primary election and who has been talking about broad state issues, continued in that vein during the State Fair debate.
Barnett, who pulled 37 percent of the GOP vote at the primary to win his party’s nomination, at the fair debate kept talking the issues that won him the primary election. No “centrist” move on Barnett’s part during the hour-long debate, it was all inside-the-party GOP talk.
Now, that just might be the right strategy…or not.
There are enough registered Republican voters in Kansas to elect Barnett governor. If he gets all 757,000 of them, and his share of the 442,000 unaffiliated voters, he’s the next governor. Sebelius needs every one of the 436,000 registered Democrats, a lot of Republicans and her share of the unaffiliated voters to win a second term.
So, to whom does Barnet play? It makes sense, of course, to lock up the 46 percent of voters who are registered Republicans, and then he needs just a dab of the 27 percent of voters who are unaffiliated with a party.
Sebelius needs all 26 percent of registered Democrats plus most of the unaffiliated and whatever number of Republicans she can get to coast to a second term.
That’s why Barnett’s “fire up the base” style State Fair presentation is interesting, politically. Those Republican voters, or at least the 193,000-some GOP primary election voters, presumably aren’t going Democrat under any circumstances. But that’s just about 25 percent of the GOP registration. So he needs that base to stay firmly in his camp, plus appeal to the rest of the Republicans and a couple bus loads of unaffiliateds.
Did Barnett broaden his GOP base or cement a portion of Republican voters who were his anyway? Both groups demand attention, of course, and there are lots of conservative Republicans who probably have their enthusiasm dampened when at the general election campaign, their party’s nominee seems to be speaking less to them than to voters who weren’t there “at the beginning” of the campaign, during the primary election.
Was Barnett’s State Fair pitch calculated? Maybe, maybe not, but don’t dismiss the importance of his showing last weekend. There isn’t a lot that happens during a gubernatorial campaign that isn’t “calculated” on some level to appeal to broad sections of the voting base of both candidates and to woo those who at least statistically aren’t nailed down by either the Republican or Democratic candidate.
Yes, it’s just the first debate of the gubernatorial election.
But it will be interesting to see whether the calculation Barnett is making winds up with the result that he’s looking for…
Sept. 7, 2006
(Distributed to Kansas newspapers Sept. 4, 2006)Advance balloting is key
Indications are clear that this is the year advance ballot voting is going to be the real story of the November general election.
Advance balloting, available about 10 days before Election Day, was how 17.3 percent of Kansas primary election voters this year made their marks and got their ballots to someone who could get them to the county clerk or election commissioner’s office to get them counted.
And, it’s lucky they did or Kansas voter turnout at the Aug. 1 primary would have been even less than the paltry 18.2 percent of all registered voters.
Now, 18.2 percent of registered voters might be enough for a simple opinion poll or a survey question, but the turnout wasn’t good and that is either a dilemma or not…
You have to figure that the 17.3 percent of registered voters who actually cast ballots in August were very, very serious about this democracy business. They’re the die-hards who might have walked to the second floor or climbed a short rope to cast their ballots. Or, they represent the careful stacking of single issues that were important enough to small numbers of voters to get them to go to the trouble of voting.
What’s the upside, and who gets the benefit of the bounce? Well, everyone who won a contested primary election of course. It meant that they had to appeal to a smaller number of voters, their die-hards, and get them out. It means that the primary winners didn’t have to put out much effort to get the coveted party nomination that puts them on the general election ballot with at least a 50-50 chance that even disinterested voters will give them a vote. That computes as the die-hard supporters voting for them again and the chance of breaking even on those who really don’t care one way or another but like their ballots neat and tidy with half the boxes checked.
For Republicans, it means a lot. This is a majority-Republican state and most voters stick pretty close to their party affiliation, or even after wandering off the reservation, at some point—probably down-ballot—“come home” to their party.
For Democrats, it also means a lot. The small turnout at the primary means that they can campaign against candidates who just stacked up the right wedge issues and now have to become more comprehensive in their approach to campaigning. If the small GOP turnout produced candidates with views that are considered extreme by the November voting population, then Democrats can capitalize on that.
Republicans win when they’ve chosen a candidate who doesn’t alienate a majority of their party’s voters. Democrats win when they can not only tout their own virtues but portray a Republican nominee as the product of a small and unrepresentative slice of the GOP. The old saying “Democrats don’t elect Democrats, Republicans elect Democrats” is an old saying because it is right.
Which makes the advance voting for the November general election all the more important. Those advance votes are essentially locked away more than a week out from the general election, which allows both parties to concentrate on the walk-in crowd. It means a smaller congregation to preach to.
There aren’t hard figures to work from, but most believe that Democrats are better at encouraging advance voting than are Republicans. But, both parties are good at tracking who has early-voted and who hasn’t and can narrow their focus on those who are still up for grabs. And, no, there’s no way to know whether a party worker who encourages an early vote will see that vote as a straight-ticket affair, but the presumption is that if a Republican wants you to early-vote, it’s because he/she believes you’re on the team. Same with Democrats, of course.
Whichever party manages to “lock away” those early votes has more time and a smaller market to compete in as the campaign furor reaches a frantic peak the weekend before Nov. 7. That means more phone calls, more brochures, and more time to work on voters who might not be sure who they’re voting for, and who are therefore persuadable.
The answer to who wins in November? It might be in the mail or safely tucked away in a ballot box days before the election.