Earlier this month, Texas enacted the strictest abortion restrictions the United States has seen since before the U.S. Supreme Court’s decision in Roe v. Wade, nearly 50 years ago.

By passing a law known as SB 8, the Texas legislature enacted what legal experts consider a “near-total ban” that prohibits abortions after six weeks without exceptions for rape, incest, or sexual abuse. The new law also contains what critics describe as an “unusual” provision that deputizes private citizens to sue any individual who “aids or abets”—or even intends to assist—a pregnant person seeking an abortion after six weeks.

Because SB 8 places the role of enforcement entirely in the hands of private citizens rather than the government, critics of the law fear that SB 8’s enforcement provision could create serial abortion “bounty hunters” since citizens are enticed to sue by the promise of a $10,000 cash reward for successful claims.

Even if a passing stranger suspected that a person pregnant past the six-week mark was going to use a rideshare service to travel to an abortion clinic, the stranger—despite having no relationship with the pregnant person—would be permitted to bring a lawsuit against the rideshare driver for assisting or intending to assist in obtaining an abortion past the permitted time frame.

For now, it appears that this unique enforcement strategy is helping to keep the Texas law in place because private citizens sue in place of the government, bypassing Roe’s constitutional right to an abortion as a defense. Shortly before SB 8 took effect in Texas, the Supreme Court declined an emergency request to stop the bill from entering into force. According to some abortion rights advocates, the nature of SB 8’s restrictions—and the Supreme Court’s refusal to block them—signal that Roe v. Wade could be on its way to being overturned.

Proponents of SB 8, including Texas Governor Greg Abbott, claim that the bill is far from a ban on abortions because it technically provides six weeks for a pregnant person to obtain an abortion.

According to experts, however, this statement is misleading. The law’s prohibition on abortions after six weeks does not mean that a person has been pregnant for six weeks. Rather, the six-week clock begins to run from the end date of an individual’s last menstrual cycle.

This nuance is crucial, physicians note, because most people are unaware that they are pregnant six weeks after their last period because menstrual cycles can be highly irregular. Under SB 8’s definition of “six weeks,” an individual may have no reason even to suspect that they are pregnant before it is too late. Physicians have pointed out that menstrual periods can frequently be up to two weeks late for any reason at all, such as stress or change in diet unrelated to pregnancy.

According to experts, the Texas law further exacerbates ongoing public health issues and access to reproductive health care in Texas. Due to years of anti-abortion advocacy and public policies in the state, much of Texas already experiences limited access to abortion, contraception, or basic maternity care.

In Texas, which contains the highest medically uninsured rate in the nation and maternal mortality rates among the “worst in the developed world,” abortion rights advocates argue that the ban will impose the heaviest burdens on poor individuals and people of color. After all, not everyone can take time off work, find adequate childcare, or afford to travel hundreds of miles out of state to receive an abortion. Although the law has only been in place for a little over two weeks, neighboring states have already seen an influx of Texas patients seeking abortions.

Abortion rights advocates also worry that the law will lead to hospital wards reminiscent of a world before Roe, where emergency room patients often died from sepsis following self-induced abortions.

Access to basic care may be further restricted by limited hospital capacity to treat non-COVID patients, especially given low vaccination rates and rising COVID-19 cases overwhelming hospitals and ICUs across Texas.

Critics worry that if SB 8 remains in place, its restrictions will soon be a reality across the country, as proponents of the Texas law seek to enact similar measures in other states.

It remains unclear, however, whether or how long SB 8 will remain in place. This month, the U.S. Department of Justice filed suit against the state of Texas, arguing that SB 8 was “enacted in open defiance of the Constitution.” The case is expected to move quickly and may reach the Supreme Court in a matter of weeks.

The future of abortion access will then rest in the hands of five justices.

The administration of elections in the United States—including elections for federal office—is highly decentralized.

Fundamental election law decisions—such as registration and voter identification requirements, and early in-person voting and vote-by-mail rules—are made by the state legislature, but the actual conduct of elections is handled almost entirely by local governments.

Local officials register voters, process absentee ballot applications, design ballots, recruit and train poll workers, manage early voting and election day operations, acquire, maintain and secure voting equipment, and count, canvass, and report the results. In most states, local officials also pay for most of the costs.

The Florida 2000 presidential election—which involved the infamous locally designed “butterfly ballot” and the inconsistent local treatment of disputed ballots that led to Bush v. Gore—called attention to the shortcomings of local election administration. As a result, the trend since 2000 has been to increase the states’ role in running elections.

The 2020 election, by contrast, underscored the value of local election administration. Much of the success of the election—record-high turnout facilitated by a massive, unheralded shift to early and mail-in voting undertaken in the midst of a once-in-a-century pandemic, with few Election Day problems and no security breakdowns or proven fraud—is attributable in large measure to the work of state and local election officials. With the vast majority of election officers working at the local level, they deserve the lion’s share of the credit.

Local administrators proved to be resilient, innovative, and attentive to local circumstances and concerns. They quickly adapted to the extraordinary circumstances of 2020 by finding new ways and places to vote, addressing the public health concerns posed by voting in traditional polling places, and recruiting tens of thousands of new and younger poll workers to replace the older workers most at risk from COVID-19.

Most strikingly, local officials around the country demonstrated a commitment—sometimes tested in court—to make it easier for eligible voters to vote. These local efforts, in turn, have triggered a backlash, with a number of states enacting new laws to curb local powers and subject local elections officers to new restrictions, burdensome requirements, and penalties.

Many local elections officials, particularly in urban areas, displayed an impressive commitment to democracy by pushing the limits of and occasionally challenging legal restrictions to make it easier for eligible voters to overcome obstacles posed by the interplay of the pandemic and state election laws.

Local elections officials used their knowledge of their communities and their connections to local schools, businesses, and other community institutions to recruit poll workers, obtain resources to fund safety precautions, find new venues for COVID-19-safe polling sites, and support voter education.

To facilitate the massive shift to vote-by-mail and to deal with voter concerns about polling places, local officials developed new programs or expanded old ones for drop boxes, curbside voting, mobile voting units, 24-hour voting, voting fairs in parks, and satellite voting centers. Existing state laws authorized some of these actions; others occupied legal gray areas, as neither explicitly authorized nor explicitly prohibited. In some instances, local election officials clashed with state officials who sought to block local democracy enhancing actions.

Notable local efforts to make voting easier, along with hostile state pushbacks, occurred in Arizona, Iowa, and Texas, all involving local efforts to expand the availability of vote-by-mail.

In Arizona, the Maricopa County Recorder sought to mail absentee ballots to all voters for the March 2020 primary. In addition, the Recorder worked to include in the instructions provided with absentee ballots permission for voters to strike out a mistake and complete the correct oval rather than treat the ballot as spoiled and apply for a new one, as state law provides. To increase accessibility for certain voters, the Recorder also fought to provide assistance by video rather than in-person to certain disabled voters. The Recorder lost on the first two of these initiatives but prevailed on the third.

In Iowa, the state’s chief elections officer, the Secretary of State, engaged in a protracted battle with three county auditors to block their efforts to “pre-populate” voters’ absentee ballot application forms with certain information already in the county auditors’ computerized databases —the voter’s date of birth, home address, and voter identification number.

This pre-population had been the practice in Iowa until June 2020 when the legislature required voters to provide all the information themselves. The auditors explained that the new law had led to a “prevalence of incorrect or incomplete request forms,” leading to more work for their already overwhelmed offices and likely increased rejections of applications from younger and minority voters.

In Texas, local officials, often led by the Harris County Clerk, repeatedly clashed with the Governor, Attorney General, or Secretary of State over local efforts to expand access to the ballot.

Local elections officers in Texas sought to mail absentee ballot applications to all voters. They also supported an unsuccessful measure to have susceptibility to COVID-19 considered a “disability” that would make voters eligible to use absentee ballots, and they challenged the governor’s directive limiting the number of drop boxes to one per county, regardless of the county’s population or size.

Notwithstanding, or, perhaps because of, these local democracy-promoting efforts in 2020, many states have since adopted new laws aimed at undermining local election administration.

Many of these laws target the very pro-voter measures taken by local boards last year by prohibiting election officials from sending absentee ballot applications to voters who did not request them, limiting the number, availability, or location of early voting places and drop boxes, and barring mobile, drive-through, curbside, or 24-hour voting.

Several states now prohibit local elections offices from accepting private donations—donations that had been critical to funding local actions last year—or impose burdensome new reporting requirements.

Most significantly, a number of states now authorize the imposition of fines or criminal penalties for local actions deemed inconsistent with state law and provide for the removal of local officials and their replacement by state designees. Indeed, state officials in Georgia recently launched the process, just authorized by a law passed earlier this spring, to replace the Fulton County election board.

It would be a mistake to overstate the benefits of local election administration. Local boards can be incompetent or taken over by ideologues, and interlocal inconsistencies in the application of election rules can be troubling. And state level officials, such as the secretaries of state in the battleground states of Michigan, Nevada, and Pennsylvania, also took important actions to make it easier to vote.

Nevertheless, the 2020 election demonstrates the value of a significant local role in running elections, much as the last year’s state-local election litigation and this year’s state legislative pushback against local democracy-advancing efforts underscore the troubling degree of politicization of the electoral process in the United States.

Are cyber charter schools a good option for families who want an alternative learning model, or do they endanger educational progress and equity and waste taxpayer dollars?

Enrollment increased dramatically at online charter schools, often called “cyber charters,” over the last school year as parents searched for safe education options for their children during the COVID-19 pandemic. For example, in Oklahoma, Epic Charter Schools’ enrollment rose to almost 60,000 students by the fall of 2020, making it larger than any school district in the state. And in Virginia, enrollment in a cyber charter school organization, K12 Inc., grew by 40 percent from 2019 to 2020.

Some parents champion cyber charters because they “offer a more flexible, at-your-own-pace education” for students who do not enjoy the traditional classroom or face attendance barriers, such as familial responsibilities, jobs, or disabilities.

Scholars are concerned, however, about the efficacy and equity of cyber charter schools under current regulations. In one study, scholars found that students enrolled in cyber charter schools scored lower than their peers enrolled in traditional public schools by 16 and 11 percentile points in math and English language arts respectively.

State-level education codes contain cyber charter school regulations, which vary by state. These regulations include location requirements, caps on enrollment and growth, and performance accountability measures. Some state legislatures have remained silent on cyber charters but permit them, and other states ban cyber charters completely.

At the federal level, regulators target special education through accountability measures. The U.S. Department of Education issued a letter to emphasize the legal obligation of cyber charter schools to provide a free, appropriate education to students with disabilities pursuant to the Individuals with Disabilities in Education Act (IDEA). Cyber charter schools, which act as local education agencies, must adopt the rules and policies of state education agencies to meet IDEA requirements.

In this week’s Saturday Seminar, experts discuss possible regulation of cyber charter schools to better serve students.

• Alex Molnar of the University of Colorado Boulder and several coauthors published a brief for the National Education Policy Center surveying the current state of cyber charter schools. They urge policymakers to engage the public in creating rules for cyber charters that include financial and educational oversight to protect taxpayers and students. During the 2019-2020 school year, only 35.2 percent of cyber charter schools received acceptable performance ratings, while 50.7 percent of district-operated virtual schools received acceptable ratings. Because virtual school performance data show that cyber charters continue to underperform, Molnar and his coauthors advocate enforcement and sanctions for inadequate student outcomes and other regulatory approaches, such as using performance data to make funding decisions.
• According to a study by DeLaina Tonks of Mountain Heights Academy, and Royce Kimmons and Stacie L. Mason of Brigham Young University, 73 percent of students with disabilities allegedly reported that they chose to attend their virtual charter school because of negative experiences in their previous schools. Many students shared that they were bullied or disliked their teachers at their old school. Other students found the virtual environment more accessible for their emotional needs or physical disabilities such as cerebral palsy. Tonks, Kimmons, and Mason note that, regardless of the reasons for choosing cyber charters, data show that students underperform and make slower progress compared to students in nonvirtual schools. They emphasize the need for more research in special education in virtual charter schools to inform future policy.
• In a policy brief for the Education Commission of the States, policy researcher Ben Erwin identifies state legislation that addressed virtual schooling from the 2017-2019 legislative terms. Erwin explains that legislation on virtual schooling, including the 45 bills that state legislatures passed across 25 states, aims to improve three main areas: attendance and engagement, authorizing and governance, and funding. He discusses how states have changed requirements on authorization and oversight of virtual school by bolstering accountability mechanisms.
• The COVID-19 pandemic presents an opportunity to build out virtual instruction in brick and mortar schools by partnering with existing cyber charters, Jonathan Butcher of The Heritage Foundation explains in a policy brief for the Mercatus Center at George Mason University. Butcher refers to the Education Department pandemic guidance as proof of progress in virtual learning because it withdraws regulatory obstacles for schools that offer online courses. He warns parents and policymakers that they should hold schools accountable for making policy changes to accommodate students’ learning needs online. Butcher recommends, however, that schools persevere in providing academic services to students without fear of regulatory retaliation from federal or state officials.
• Cyber charter schools can hurt the budgets of Pennsylvania’s public school districts because charter schools gain the tuition associated with the students that enroll, Susan L. DeJarnatt of the Temple University Beasley School of Law explains in an article in The Pennsylvania Bar Association Quarterly. DeJarnatt expounds that cyber charters receive more funding than necessary because they receive the identical amount of funding per pupil as the brick and mortar charter schools regardless of changing operating costs. She advocates regulations requiring objective assessments of the real costs of providing cyber education and pegging tuition to those costs.
• As technological advancements impact how schools deliver education, regulators must rethink the basic structure of education law, Aaron Saiger of Fordham University School of Law argues in a chapter in the Oxford Handbook of U.S. Education Law. Saiger explains that U.S. education law assumes that schools occur in person, but virtuality will allow students to access education from multiple providers at any time and at lower costs. He recommends that experts design regulations with equity, fairness, and rights for students who attend virtual schools.

IN THE NEWS

• Following the advice of a U.S. Food and Drug Administration (FDA) advisory panel, FDA authorized booster shots of the Pfizer COVID-19 vaccine for individuals at high risk for life-threatening COVID-19 symptoms, those over 65 years old, and those who are at high exposure through institutional or occupational settings. The panel, however, declined to recommend a booster shot of the Pfizer vaccine for the general public. The panel’s decision not to endorse booster shots for the general public stands at odds with the Biden Administration’s plan to distribute booster shots to everyone over 16 years old. A Centers for Disease Control and Prevention (CDC) advisory committee reportedly approved of FDA’s decision.
• The U.S. Environmental Protection Agency (EPA) issued a final rule establishing a new program to cut greenhouse gases known as hydrofluorocarbons (HFCs). HFCs have a relative impact on global warming that is “hundreds to thousands of times greater than carbon dioxide.” The new rule responds to the passage of the American Innovation and Manufacturing Act of 2020, which directed EPA to establish a program to phase down HFCs. This program will focus on “allowance allocation and trading” for HFCs that will reduce HFC consumption by “85% below baseline levels within the next 15 years.” The Biden Administration called EPA’s rule “one of the most consequential climate actions taken by the federal government in years.”
• The U.S. Department of Homeland Security (DHS) announced a strategy to “address the increase” of migrants in South Texas. The plan, enacted under the U.S. government’s authority to remove migrants in the interest of public health, is in response to an increased number of refugees and immigrants entering the United States after recent tragedies in Haiti. DHS stated that it would accelerate the removal of migrants by adding additional removal flights, increasing agents and officers to the area, and relocating individuals to other areas to decrease processing time. U.S. ambassador to Haiti Daniel Foote reportedly resigned from his position due to the U.S. government’s “inhumane” treatment of Haitian migrants in time of tragedy.
• The United States will lift some restrictions on travelers from over 30 countries, including China, India, Brazil, and most of Europe. The previous restrictions included measures such as quarantine requirements and travel bans for non-citizens who had been in the United Kingdom, European Union, China, and other countries in the previous 14 days. Jeff Zients, the Biden Administration’s COVID-19 response coordinator, announced that beginning in November foreign travelers that are fully vaccinated will be able to travel to the United States. In addition to their vaccination status, travelers will also need to provide proof of a negative COVID-19 test prior to entering the country.
• The CDC temporarily halted flights for Afghan evacuees going to the United States after public health departments discovered an outbreak of measles and mumps connected to recent arrivals from Afghanistan. The CDC noted that all of the confirmed cases are being treated and that the patients and their contacts have been isolated. The CDC recommended that those previously unvaccinated for measles, mumps, and rubella receive the vaccine and quarantine for 21 days before traveling into the United States. President Joseph R. Biden issued an executive order adding measles to the list of quarantinable diseases, seemingly due to the recent outbreaks.
• A federal appeals court dismissed its previous ruling that declared restrictions on gun sales to individuals between 18 and 20 years old unconstitutional. The plaintiffs originally claimed their Second Amendment rights were violated by gun laws that banned the sale of firearms to adults younger than 21 years old. The appeals court held that because the plaintiffs turned 21 and no longer needed the court’s intervention to purchase handguns, the previous opinion must be vacated. Judge James Wynn, who dissented from the previous ruling, concurred with the new decision and stated the previous ruling now has “no legal value.”
• The Biden Administration announced a new interagency effort to protect people from extreme heat. The Administration directed the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) to launch a rulemaking process to “develop a workplace heat standard.” Through the rule, OSHA will seek to prevent “heat injury and illness” in both indoor and outdoor work, which have increased as a result of extreme heat events related to climate change. OSHA also announced it is implementing a new enforcement initiative to respond to heat-related complaints and hazards. The Administration’s announcement also includes other measures designed to address heat-related problems, such as developing neighborhood cooling centers in schools.
• The U.S. Department of Justice sued American Airlines and JetBlue because the airlines’ partnership, the “Northeast Alliance,” allegedly reduces competition and harms consumers in violation of the Sherman Act. As part of the partnership, American Airlines and JetBlue will plan routes, schedule personnel, and share revenue for flights in the Boston and New York markets, among other details. Although the airlines’ partnership is not a merger, the Justice Department alleged that it operates as one in practice. The Justice Department noted that because the airline industry is deregulated, private competition between airline carriers provides price and quality protections to consumers. The Justice Department reasoned that because the domestic travel industry is dominated by only four airlines, the partnership between American Airlines and JetBlue will result in “reductions in capacity, higher fares, and lower quality of service.”

WHAT WE’RE READING THIS WEEK

• In a Center for American Progress article, Kelly Kryc, now deputy assistant secretary for International Fisheries at the U.S. National Oceanic and Atmospheric Association, and Kat So highlighted that the Intergovernmental Panel on Climate Change findings indicate that countries must employ mitigation strategies beyond a complete transition to clean energy sources to prevent the earth from warming over 1.5 degrees Celsius. Kryc and So explained that the ocean has a large capacity to absorb carbon dioxide emissions, so it is an important resource for carbon dioxide removal and sequestration. Kryc and So argued that countries should develop ocean-based ecosystems, such as wetlands, seagrasses, and seaweed, to absorb carbon dioxide from the atmosphere. Kryc and So concluded that the Biden Administration should research and design nature-based solutions for carbon dioxide removal and collaborate with environmental justice activists to develop guidelines for their implementation.
• In an essay in the Northwestern University Law Review, Joseph Blocher, professor at Duke University School of Law, and Reva Siegel, professor at Yale Law School, advocate stronger gun regulations to protect the “public sphere on which constitutional democracy depends.” Blocher and Siegel examined the armed protests at the Michigan legislature in 2020 as an example of how guns present a threat to public safety and undermine the democratic process. Blocher and Siegel concluded that if gun regulations are inadequate, gun use will “define our constitutional democracy, rather than the other way around.”
• In a paper issued by the Columbia Center on Global Energy Policy, Matt Bowen, research scholar at the center, discussed challenges and solutions to nuclear waste disposal. Bowen explained that although nuclear energy is the largest generator of low-carbon electricity in the United States, the country is at a standstill for nuclear waste disposal, which has led some states to prohibit nuclear development until progress is made. Bowen argued that the United States is limited in its progress on this issue because congressional amendments to the Nuclear Waste Policy Act have limited access to a nuclear waste disposal fund and prevented the U.S. Department of Energy from exploring additional waste sites. Bowen suggested some options for the U.S. Congress to address nuclear waste, such as creating a new agency solely intended to manage nuclear waste, improving the funding structure for nuclear waste, and resolving regulatory inconsistencies to improve flexibility in disposal.

FLASHBACK FRIDAY

• In an essay in The Regulatory Review, Adam M. Finkel, professor at the University of Michigan School of Public Health, argued that OSHA should collaborate with public and private entities at the federal, state, and local levels to identify and address hazardous workplace conditions. Finkel explained that although OSHA has broad statutory authority to exercise its power—such as when risk of disease poses a threat to relatively few workers—OSHA “faces a gauntlet of shrill opposition” that barricades its ability to regulate workplace conditions. Finkel recommended that OSHA rely on science and economics to justify using its authority to its full extent and institute policies advancing the protection and humane treatment of workers.

Election officials play an essential role in American elections—not only by facilitating the casting of ballots, but also through their use of regulatory discretion.

In response to the COVID-19 pandemic, election officials across the country used their discretion constructively to protect voters from unprecedented threats. Their faithful and brave service to American democracy’s most fundamental act should be applauded. Instead, in many states, the reaction has resulted in legislative backlash—a warning shot to the future of democracy.

In many ways, the role of an election official is regulatory. As the primary officials implementing election laws passed by legislatures, their responsibilities extend beyond setting up rooms and counting ballots. Election officials make decisions about a wide range of resource allocation issues, such as polling place siting, information distribution, and recruiting and training poll workers. All 50 states have laws that grant election officials some form of rulemaking authority.

But to protect voting rights and voter access, these statutory grants of authority appropriately constrain election officials in certain ways—for example, by limiting polling place closures or mandating that certain registration opportunities be available. It is equally important, however, that election officials have some discretion to adopt best practices that protect voter access within the scope of the law.

Election officials use this statutory authority to protect voter access in a variety of ways. The Montana Secretary of State, Christi Jacobsen, has used rulemaking authority to issue regulations ensuring polling place accessibility for elderly voters and voters with disabilities. The North Carolina State Board of Elections has used its rulemaking authority to issue poll watcher conduct regulations that ensure watchers cannot impede or harass voters.

Beyond formal rulemaking authority, election officials use their discretion to protect voting access in more informal ways. During the 2020 election cycle, some election officials changed their poll worker recruitment practices to focus on younger people at the lowest risk for COVID-19. Other officials provided pre-paid ballot postage to registered voters in response to the increased reliance on mail voting.

The need for regulatory discretion to protect voter access is best highlighted through disaster response planning. During times of uncertainty, local election officials possess the expertise and knowledge of conditions on the ground to preserve voting access. For 150 years, election officials have moved the democratic process forward in the face of war, terrorist attacks, and hurricanes.

Most recently, the COVID-19 pandemic has strained election administration in unprecedented ways and presented a compelling example of the importance of election official regulatory discretion. Some states successfully passed emergency legislation to protect the election process during COVID-19. Fourteen states passed substantive legislation affecting election administration during COVID-19, including laws to extend mail ballot receipt deadlines, expand early voting hours, and affirmatively distribute mail ballot applications.

Despite these positive measures, emergency legislation is an imperfect form of disaster response. The legislative process is intentionally deliberative and requires substantial time to draft bills, establish quorum, debate, amend, broker deals, and vote. In addition, legislatures often require large numbers of people to work in close quarters, which can be dangerous during a public health emergency.

In many states, election officials have been able to use their regulatory authority either to complement emergency legislation or step in to protect voters where no emergency legislation passed. For example, in 2020, Harris County, Texas, Clerk Chris Hollins tripled the number of early voting locations in his county, sent mail-in ballot applications to voters 65 and older, and instituted drive-through voting to allow at-risk people to vote safely from their cars. These actions came despite intense opposition from statewide officials.

In Georgia, Fulton County Elections Director Rick Barron expanded early voting hours to cut down on long lines. In Florida, 20 counties used their existing authority under Florida election law to offer additional days of early voting, and 19 counties opened additional early voting locations. North Carolina’s State Board of Elections Executive Director Karen Brinson Bell used her emergency authority to expand early voting, mandate health and safety protocols at polling places, and require all counties to seek approval before moving or consolidating polling places.

Rather than hold up these efforts as models of effective and nimble election administration and regulation, many states have embarked on a legislative backlash campaign seeking to restrict election officials’ emergency and regulatory power. Legislators in at least 23 states have introduced at least 37 different bills seeking to curtail election official discretion or punish or restrict election officials for taking certain actions. Many of these bills are directly targeted at actions local election officials took to protect voters in response to the COVID-19 pandemic.

In Texas the legislature recently banned drive-through voting and made it a crime for election officials to distribute mail ballot applications affirmatively. Texas Senate Bill 1 also bars public officials from creating, altering, modifying, waiving, or suspending any election standard, practice, or procedure. This law will make it more difficult for election officials in Texas to protect voters in future disasters.

In Georgia, Senate Bill 202 directly limits some emergency actions that election officials took to provide safe options for voting during COVID-19 by restricting mail ballot drop boxes and banning mobile polling places. The Georgia law also limits election official discretion by standardizing early voting hours.

Although at first glance these restrictions may not seem as oppressive as other elements of the current wave of state voter suppression bills, they could have massive ramifications.

Restricting election administrators’ regulatory authority for retaliatory reasons harms voters by deterring the most knowledgeable and capable officials from making the decisions necessary to ensure full and fair access to the ballot.

At a moment when election officials have demonstrated their critical role in America’s democracy, many state legislatures across the country are embarking on a national campaign to restrict their authority to protect voters. This legislative backlash against election officials is an urgent warning sign to anyone concerned about the resiliency of American democracy.

The world is getting hungrier for fish. Fish consumption has outpaced population growth, but the volume of ocean fishing has remained relatively flat for three decades. Fish farming—or aquaculture—has made up the difference, with production more than doubling between 1997 and 2019. Today, aquaculture provides about half of the world’s seafood.

This growth is not the trend in the United States, which relies instead on imports for more than 80 percent of the seafood its population consumes. According to a report by the Congressional Research Service (CRS), aquaculture production could increase dramatically in the United States. But to do so, Congress will need to reform the nation’s ocean permitting system, the CRS concludes.

In addition, Congress has failed to authorize any single federal agency to permit offshore aquaculture facilities. Agencies ranging from the U.S. Army Corps of Engineers, the National Marine Fisheries Service (NMFS), and the U.S. Environmental Protection Agency each regulate portions of the aquaculture permitting process. The Magnuson Stevens Fishery Conservation and Management Act (MSA) regulates offshore fishing generally, but not offshore aquaculture facilities specifically. Still, NMFS has claimed sole offshore aquaculture management authority under the MSA based on the act’s use of the term “fishery.”

Case law added more uncertainty to the offshore aquaculture industry’s future in 2018, when a federal court invalidated NMFS’s interpretation of the MSA in Gulf Fisherman’s Association v. National Marine Fisheries Service. The court held that NMFS “exceeded its authority” under the MSA by trying to regulate aquaculture in the Gulf of Mexico. As the CRS notes, leaving regulatory authority over offshore aquaculture to regional councils instead of a federal agency could allow these regional councils to impose conflicting or contradictory permitting requirements.

As the CRS notes, offshore aquaculture bills were introduced in Congress five times since 2005, but none were enacted. The Advancing the Quality and Understanding of American Aquaculture Act (AQUAA), re-introduced in 2020, would have directed the National Oceanic and Atmospheric Administration to “coordinate regulatory, scientific, outreach, and international issues related to aquaculture.” But Congress never voted on AQUAA, so potential offshore aquaculture developers must deal with a tangle of regulations set by at least six different federal agencies.

The CRS also discusses the red tape that federal environmental requirements impose on the offshore aquaculture permitting process. The National Environmental Policy Act, for example, requires federal agencies to consider the environmental impact of proposed offshore aquaculture facilities. NMFS must also review project proposals, such as those of offshore aquaculture facilities, that can “affect marine mammals or threatened and endangered species.”

Offshore aquaculture’s opponents emphasize the importance of federal environmental protection  and argue that unused feed and fish waste can degrade both the quality of surrounding waters and the sea floor beneath the offshore fishery’s nets. High fish densities and poor water circulation can also cause eutrophication—nutrient concentrations reaching toxic levels in water. Proponents of offshore aquaculture counter that open ocean waters are more likely to dissipate fish waste than calmer coastal waters.

Opponents of offshore aquaculture also point out that aquaculture in the United States has struggled to compete with higher quality, cheaper imports from Norway, Chile, and Canada. These opponents contend that foreign aquaculture producers are more competitive than U.S. producers because they are subjected to less restrictive environmental or labor regulations than domestic producers. But the CRS shows that trade protections, such as tariffs and quotas, could enable the offshore aquaculture industry to compete with foreign producers.

Fishers also oppose offshore aquaculture because they perceive it as a threat to their livelihood. The CRS finds, however, that investment in offshore aquaculture could also benefit the traditional fishing industry. Not only could a robust offshore aquaculture industry revive economically depressed coastal areas, but it could also encourage investment in the same docks, cold storage, and processing facilities on which fishers rely.

The CRS maintains that a regulatory framework for offshore aquaculture should give statutory and leasing authority to a single federal agency while coordinating with other federal agencies throughout the permitting process. Such a framework could hasten the permitting process and promote greater transparency and stakeholder input.

Otherwise, the CRS concludes that offshore aquaculture development in the United States looks unlikely.

Shortly after the 2016 presidential election, I heard physicist Neil deGrasse Tyson joke that Florida color-coded its cities because its 2016 presidential electoral map was deep red except for most of its bright blue cities.

Like Florida, many so-called red states that voted Republican statewide in recent elections have blue cities—major metropolitan centers that tilt hard toward the Democratic Party. These blue cities in red states have to cope with the vagaries of home rule if they wish to reform local election laws—even in the area of campaign finance reform. City policymakers have to be specifically wary that the state legislature can swoop in and preempt good local laws that limit money in politics, which just happened in Florida.

“Home rule” is the name of the legal doctrine that determines when and if a locality has the authority to strike out on its own in a particular area of regulation. Home rule can be a bit of a misnomer because many localities do not have independence under their state’s constitution or statutory law and are thus unable to craft their own local laws and rules if the state wants to interfere and override local choices.

In many states, the controlling doctrine for local authority is called “Dillon’s Rule,” which is the opposite of the layperson’s conception of home rule and local autonomy. In states that follow Dillon’s Rule, local legislative power islimited to a specific list of enumerated powers. Invoking home rule in a state where Dillon’s Rule applies can be a snake in the grass for local reformers because it means they may not possess the power to enact local legal improvements.

Florida is a hybrid of home rule and Dillon’s Rule. Home rule for municipalities seems embodied by statute, but Florida’s Constitution states that counties “shall have all powers of local self-government not inconsistent with general law.” Thus, the Florida legislature can ultimately step in and unravel local reforms.

The fracas over who has the last regulatory word—the locality or the state—has played out across America in a broad range of topics, including gun control, plastic bags, municipal broadband, and election laws. Many red states have enactedlaws that make local ordinances in blue cities on these topics preempted or nullified.

This state-versus-local turf battle has also emerged during the COVID-19 pandemic. For example, in Arkansas, a state law prevents localities from imposing mask mandates, a move the governor now regrets. But his regret alone will not remove this bad state law. The legislature has to return to the question and revoke the old law to allow localities to issue mask mandates if a locality concludes that it is in the best interest of its citizens. Until the state reverses course, each locality in Arkansas is bound by the law.

These home-rule fights have also reared up over election laws. In 2021, Florida joined a national trend of red states passing new, regressive voting laws in the wake of the 2020 election. Florida’s new election restrictions include limits on drop boxes for ballots and stricter rules for getting ballots by mail. These rules generated criticism in the press and spurred a series of lawsuits seeking to undo the new law filed by the NAACP, League of Women Voters of Florida, Harriet Tubman Freedom Fighters, and Florida Rising Together.

But another change in Florida’s election laws in 2021 garnered far less attention—a change to the state’s campaign finance laws. The new law, known as SB 1890, guts local campaign finance contribution limits that are different than––read, lower than––the state’s campaign contribution limits. This state law makes the contribution limit $1,000 all across Florida, even in elections for local offices. SB 1890 guts and displaces laws in localities in Florida that used to have lower contribution limits for local offices such as mayor, sheriff, or city council. For instance, the law eliminated Tallahassee’s $250 contribution limit and Sarasota’s $200 contribution limit.

Campaign finance laws such as Florida’s SB 1890 rob localities of the ability to curb money in politics or to tailor contribution limits to the size and cost of local elections. Raising contribution limits across the board is a boon for the wealthy donor class who will be able to flex more spending power in every election in the state.

Elevating local limits may also reduce the competitiveness of municipal elections and act as an incumbent protection racket since those already in office will have the ability to raise more money from their existing donor base. This new Florida law may also render local elected office out of the reach of first-time candidates and would-be challengers who are easily daunted by the political war chests of those already in power—an obstacle especially for nontraditional candidates such as women and people of color. Those local war chests in Florida are likely to be bigger under the new statewide law since local incumbents can now raise four or five times as much money from each affluent political donor.

What happens in state capitols does not stay in state capitols. Rather, new state laws can ruin hard-fought progressive reforms in cities all across a state. State-level preemption of local regulation can be bad for public health, as Americans have seen during the pandemic, and it can also be bad for the health of democracy and the integrity of future elections.

Environmentalists often urge the U.S. government to “declare war on climate change.” But can climate change be regulated as if it were a national security risk equivalent to an invading enemy?

The answer to this question is “yes,” and U.S. Presidents may be entitled to national security authority in addressing climate change threats, according to a recent article by Syracuse University College of Law professor Mark P. Nevitt.

Nevitt argues that we are at the beginning of a “climate-security century”—an era in which climate change incites conflict that will “stress, challenge, and destabilize existing legal frameworks.” Drought, food insecurity, coastal property loss, and the displacement of “climate change refugees” may undermine worldwide political stability in the near future.

Notwithstanding these existential threats, leaders in the United States and abroad have often avoided binding emissions reduction targets or framing climate change as a security risk. The Trump Administration went further still and stripped references to climate change from its National Security Strategy in 2017, and withdrew the United States from the Paris Climate Agreement three years later.

One reason for U.S. policymakers’ reluctance to address climate change as a national security risk may be that when environmental and national security priorities conflict, national security interests tend to take precedence.

This prioritization stems from the fact that national security powers are proactive, enabling executive leaders to tackle any “emerging threats” to U.S. national interests or the lives of military members and U.S. citizens—and to displace other laws that may get in the way, including environmental regulations. In contrast, environmental regulations often operate along longer timeframes and follow a cooperative federalism model, which balances state and federal regulatory power to implement laws. As a result, federal climate change regulation stretches emission mitigation across multi-decade timelines in order to give states flexibility, and is often stymied by challenges from states.

In effect, this also means that traditional climate-oriented regulations are often suspended if a President declares a national emergency or issues a “national security determination.”

For example, the Clean Air Act authorizes the President to exempt fossil fuel-burning power plants from emissions regulations “if it is in the national security interests of the United States to do so.” And the Administrative Procedure Act—which provides a way for environmentalists to challenge inadequate actions by the U.S. Environmental Protection Agency (EPA) —”exempts ‘military or foreign affairs’ functions” from typical rulemaking procedures.

But what happens if excessive emissions—and resulting climate change—are the cause of persistent national security threats? In such situations, Nevitt answers that the federal government is empowered, both in theory and under statutory law, to address environmental threats under national security policy. In short, he claims that under U.S. law climate change should be treated as national security threat.

Nevitt argues that national security law’s emphasis on strategic planning and its embrace of “multifaceted,” non-traditional threats are both well-suited to tackling climate change risks. He also notes that the United States would be following the United Nations Security Council in identifying climate change as a distinct security issue, as the Council has declared in recent resolutions. In addition, the U.S. Department of Defense’s experience with intelligence-gathering and risk assessment can assist in evaluating climate threats—and its “massive” infrastructure and budget can ensure that threats are handled rapidly.

Furthermore, Nevitt posits that an existing statute may be used to address climate change in a national security context. Former President Donald J. Trump demonstrated the breadth of executive national security powers when he invoked the 1976 National Emergencies Act to address immigration as a non-traditional “threat” and to declare a “border security crisis.” Similarly, if another President declares that climate change is a national emergency under the National Emergencies Act, such a declaration can trigger 136 other statutory provisions, giving the executive branch expanded powers in terms of asset seizure, military and national defense, land management, public health, and international relations.

Although Nevitt predicts that the fossil fuel industry would challenge a climate change emergency declaration, a President could defend such a declaration on the basis of an “express or implied authorization” under the Emergencies Act. An emergency declaration may also receive more deference in court if the President refrains from seizing U.S. fossil fuel facilities; the Act grants a President wider latitude for using “instruments of national force against the outside world” and less if such power is “turned inward” on domestic companies.

Beyond theory and statutory law, courts may be open to the framing of climate change as a hostile invader. In Massachusetts v. EPA, the U.S. Supreme Court held that the Clean Air Act authorizes EPA to regulate greenhouse gas emissions if EPA finds that such emissions contribute to climate change. Nevitt argues that EPA’s mandate to “protect” Massachusetts from air pollutants implies that the federal government has a “special duty” to protect states from injury—“not unlike if Massachusetts was invaded by a foreign enemy.”

In addition, at least one federal judge, in the recent case of Juliana v. United States, appears to have accepted the characterization of storms, floods, and other harms from climate change as creating a “national security destabilization” and posing threats to “security, health, and welfare.” Although the Juliana plaintiffs lost before the U.S. Court of Appeals for the Ninth Circuit in 2020, the dissenting judge suggested that the federal government’s failure to address climate change may violate its promise under Article 4 of the U.S. Constitution to protect citizens “against Invasion and against domestic violence.”

Currently, the Biden Administration has prioritized executive action on climate change through non-national security avenues. But if this Administration, or future administrations, become mired in legal challenges or otherwise drift back toward “climate inaction,” addressing climate change as a national security threat may create pathways for action, Nevitt argues. He notes that even at the height of the Trump Administration’s rollback of environmental regulations, the Administration still enacted climate change legislation targeted at protecting military infrastructure against climate-intensified storms and flooding.

When it comes to voting rights in America, the time has come for a Faustian bargain.

Democrats should accept voter IDs but, in return, Republicans must agree to the creation of national standards and a national election commission to regulate federal elections. This may be the only way to break the impasse on voting rights and administration and protect universal franchise.

In Bush v. Gore, the U.S. Supreme Court declared that “the right to vote is protected in more than the initial allocation of the franchise.” What happens after that initial allocation, such as the counting of votes or the drawing of district lines, can debase voting rights as much as outright denial of the right to vote.

Although the original U.S. Constitution was silent on voting rights, the United States has deployed constitutional amendments, legislation, and court decisions throughout its 245-year history to create near-universal adult franchise for those ages eighteen and above.

Despite this arc of universal franchise, many eligible voters in America still do not vote. For some, that may reflect a deliberate choice. For others, state laws have historically made voting difficult. This is especially true for people of color who have historically faced literacy tests, poll taxes, and even outright physical threats if they tried to vote.

The Voting Rights Act of 1965 and its subsequent amendments dramatically made inroads into erasing discrimination at the polls. Yet subsequent Supreme Court decisions, both in Shelby County v. Holder and Brnovich v. Democratic National Committee, have undermined the Act, leading to a recent wave of state efforts to restrict voting rights, especially those controlled by the Republican Party.

The United States is a polarized country. This polarization extends to many issues, including voting rights. Currently, Congress is deadlocked over legislation to regulate voting rights, which includes provisions to overturn Shelby County and Brnovich.

Republicans believe there is widespread voter fraud in America and that legislation is needed to prevent it. After the 2020 election, this belief has only grown, as claims of a stolen election have prompted states across the country to pass new and often restrictive voting legislation. Many Democrats discount the presence of voter fraud, arguing that such claims are false and that the real aim of new voting regulations is to stifle the vote.

Even though evidence supports the position of Democrats that voter fraud is rare, this is immaterial. Public opinion supports requiring voter IDs and other efforts to address fraud. But the public also supports other options, such as mail-in and early voting. Although there is no evidence the public rejects universal adult franchise, many states have been historically unfriendly and unsupportive of protecting or expanding voting rights.

The national government must enter the game. In the past, only when the federal government has acted to regulate or intervene have voting rights been protected.

While recently proposed legislation, such as For the People Act of 2021, aims to establish some federal standards when it comes to voting, current proposals fail to account for the need for federal regulation in the operation of elections. Current proposals would still provide states with the primary authority to regulate federal elections with no guarantee of success, since the right to vote would still be subject to the vagaries of state officials who could undermine local election administration.

The United States needs a grand voting rights bargain where both sides give up something significant in exchange for something they want. Democrats should accept the reality of voter identification as Republicans demand. Distributing voter IDs, however, should not be up to the states. It should take place through a national identification system, just as has been adopted by other countries. This system should issue voter identification cards at no cost, make them universally available at age eighteen, and require them at the polls to verify voting.

In return, Republicans should accept national uniform standards when it comes to federal elections. These standards should include common rules on voter eligibility, early voting and voting by mail, and the location of polling stations. The United States also needs a central election commission, just as other countries have, which would oversee and administer federal elections. Such a body would have rulemaking and other regulatory authority to oversee elections.

National standards and a centralized regulatory body would provide many benefits. They would presumably eliminate the disparity in voting standards and regulations across the country. They could arguably decrease litigation against states, reduce election costs, improve turnout, and facilitate the ability of people to move within and across states and remain eligible to vote. In addition, a centralized commission could serve as an arbiter of federal election disputes, subject to oversight by Congress exercising its constitutional authority to regulate disputes over federal elections and state electoral votes in national contests.

National standards and regulation of voting in federal elections could address concerns about both voter fraud and turnout so that both Republicans and Democrats get what they want while also improving the quality and regulation of federal voting rights.

At last count, 18 laws have been passed in 30 states that make it more difficult to vote. According to the Brennan Center, “more than 400 bills with provisions that restrict voting access have been introduced in 49 states in the 2021 legislative sessions.” Many of these restrictions directly implicate the casting of ballots; others have a more indirect effect on voting. Some laws are uniformly restrictive; others restrict voting in some ways and expand it in others.

Altogether, these bills have prompted lawsuits, congressional hearings, corporate condemnation and a boycott, public outrage and protest, absconding state legislators, and memories of Jim Crow.

Much of the criticism levied at these bills has focused on the ways that they aim to restrict voters from casting ballots in 2022 and beyond. Perhaps of equal import are the ways that these bills aim to restrict election administrators from doing their job in 2022 and beyond. Some of these bills seek to minimize the authority of election administrators––people whose job depends on getting the vote count right­­––and expand the authority of elected officials­­––people whose job depends on winning the vote. Never mind depressing voter turnout by a couple of percentage points when you can just certify whatever winner you prefer!

America’s redistricting process has been criticized as one where the politicians get to choose their voters instead of the other way around. In one case, for example, a court held that legislators targeted certain voters—in that case, African Americans—with “almost surgical precision.”

The same backward process—elected officials choosing their voters instead of vice versa—could also describe recent attempts to politicize the administration of elections. And in the extreme, the politicization of elections could remove voters from the equation altogether.

Consider the following three bills.

• Georgia’s Senate Bill 202—signed into law on March 25, 2021—authorizes the state legislature to appoint a majority of the state elections board’s members, and it empowers the state board to remove and temporarily replace local election superintendents who are responsible for certifying election results.
• Texas Senate Bill 1—adopted by the Texas House on August 27—would make it a felony to distribute vote-by-mail applications to voters who do not request them, and it would subject poll workers to jail time if they enter false information on a provisional ballot or remove a partisan poll watcher from a polling station.
• Arizona House Bill 2720—introduced by Arizona state legislator Shawnna Bolick (R. District 20) in May 2021—would allow the state legislature, by simple majority vote, to revoke the Secretary of State’s certification of a presidential election and to choose the state’s presidential electors unilaterally, regardless of the preferences of Arizona’s voters.

Each of these bills could allow election administration decisions that are normally insulated from state-level politics to be exposed to strong partisan winds.

Despite a long history and culture of partisan election administration, post-2020 attempts to politicize local decisions about voter eligibility and precinct-level vote certifications are unprecedented. The fallout has already begun as scores of election officials are resigning in the face of death threats for their past work and potential criminal penalties for their future service. If these roles are filled by diehard partisans, the mission of politicizing election administration would be accomplished without further interventions.

Finding the right balance between political accountability and efficient, legitimate, and neutral expertise in the administration of government programs is always challenging. Unfortunately, these decisions about delegation and oversight are too often based on a determination of political expediency and not effective public administration. The administration of elections is no different, although it should be.

Elections are not a typical government program. By politicizing election administration, state lawmakers are unlikely to increase accountability in the face of controversial decisions. Setting aside the complexity of political accountability as a general matter, it is not likely that state legislators will face heat for their controversial election-related decisions when the very purpose of those controversial decisions is to insulate them from political accountability.

The spate of restrictions on both voting and election administration is motivated by similar concerns related to partisanship and racial prejudice. It remains unclear whether voter restrictions will result in voter suppression. The empirical literature is mixed because restrictions often target individuals who are unlikely to vote in the first place and might instigate countermobilization that offsets the effects of these restrictions.

It also remains unclear how aggressively state legislatures will take over the administration of elections and whether the most serious encroachments on local control such as criminal sanctions on poll workers and the revocation of duly certified vote totals, will garner enough support to be enacted into law.

What is clear, however, is that focusing only on the Constitutionally prescribed “times, places, manner” of voting risks misses the forest for the trees in understanding how alarming these election reform bills are for the future of democracy. Pretending that the politicization of America’s election administration will enhance its legitimacy and accountability is not only naïve, it is dangerous.

The American political experiment is ailing.

Marred by antidemocratic institutional features including the Electoral College and the filibuster, excessive levels of partisan rancor, and strong currents of cynicism and distrust among the citizenry, the American political system faces grave and potentially existential, challenges. The insurrection of January 6, 2021, revealed that not even the peaceful transition of power can be taken for granted.

Issues of so-called “election administration” must be understood in this context. Election administration, a somewhat insipid label, encompasses the multitude of choices, some of great significance, that state legislators and election officials make about how to run elections: What hours will the polls be open? Will voters be permitted to vote prior to election day? Who is entitled to vote by mail? What forms of identification must voters possess?

Each of these seemingly prosaic choices, along with countless others, affects the composition of the electorate and, thus, the outcomes of elections by dictating the terms of participation.

Given the United States’ ostensible national commitment to free and fair elections, lawmakers and election administrators have an obligation to design election systems that ensure that all eligible voters can exercise their right to vote with ease.

Yet, for too many voters in too many places, voting remains a challenge. For clarity on how election administration relates to voter participation, consider the concept of “administrative burdens” introduced by Pamela Herd and Donald Moynihan, professors at Georgetown University. They emphasize that burdens such as excessive bureaucracy, challenging paperwork, and complex regulations are deliberate policy choices.

Accordingly, lawmakers have the capacity to make an activity relatively easy or hard. Herd and Moynihan identify three types of costs resulting from administrative burdens that resonate in the election administration context: learning costs, psychological costs, and compliance costs.

Applied to voting, learning costs would include, for example, the burdens of locating a newly relocated polling place or determining what forms of voter identification are necessary. Psychological costs would include the indignity of knowing that governors and state legislators hope to deny or abridge an individual’s vote. And compliance costs would include the time it takes for a voter to complete and submit voter registration forms or ballots.

When the collective costs of these three types of administrative burdens are high, some voters find it exceedingly difficult or impossible to vote. And because lawmakers and election administrators are not operating on a blank slate when imposing burdens—that is, they know for whom and by which means various groups of voters tend to vote—they can target, with some accuracy, certain populations of voters.

The Republican Party has systematized such targeting. Rather than focus its efforts on expanding its base, the Party perceives its future political success as contingent on reducing “democratic performance,” in part by selectively reducing voter participation.

Republican lawmakers have, in all but two states, sought to curtail voting rights. These lawmakers have introduced bills—some of which have already been enacted into law—that impose onerous and needless obstacles on both voters and third-party organizations that facilitate the right to vote. Other bills that have been introduced or passed threaten election administrators with criminal penalties for distributing mail ballot applications.

Reducing voter participation is now the Republican Party’s modus operandi. If these efforts are successful, urban, Black, Latino, and Native American voters—the unstated targets of the hundreds of bills under consideration by state legislatures—will soon find it harder to vote in Republican-controlled states.

Predictably, some commentators dispute this diagnosis. These voter suppression apologists interpret the rash of new election administration legislation as necessary to protect against voter fraud and to preserve public confidence in the integrity of the electoral process. Both goals are laudable in the abstract, yet, as justifications for legislation creating burdens on the right to vote, they are specious.

Voter fraud, as study after study has demonstrated, is extraordinarily rare. It is also already prohibited in every state. As propaganda, however, the notion of voter fraud as an ever-present threat persists, and this persistent belief offers a case study in politically motivated reasoning.

An additional justification often put forward for new election administration legislation—namely, the need to instill public confidence in the integrity of the electoral process—is imprecise and manipulable. Moreover, members of the public who stand to have their votes unjustly denied or abridged are certainly unlikely to feel very confident. Exactly whose confidence is valued in American elections?

Finally, as recent research has established, public confidence in the electoral process is in fact responsive to the voter fraud myth, further undermining the value of relying on inchoate claims about public confidence.

This background helps explain the widespread condemnation that the Supreme Court’s recent decision in Brnovich v. Democratic National Committee has received. With this decision, Justice Alito, writing for the six conservative Justices, further weakened the Voting Rights Act of 1965 (VRA). Section 2 of the VRA provides that:

No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.

Section 2 further notes that a violation of this prohibition:

is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by the VRA in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.

In recent years, Section 2 has served as the primary means of challenging voting rules that disparately impact racial minorities. Section 2’s “key demand,” as put by Justice Kagan in her poignant Brnovich dissent, “is for equal political opportunity across races.”

Prior to Brnovich, lower courts had employed a workable two-part test for Section 2 claims.  Section 2 plaintiffs first had to demonstrate that a challenged voting rule had a racially disparate impact, and, second, that this impact could be linked to various social and historical conditions.

The Brnovich majority opinion supplements—or, it might be argued, supplants—that test with a list of five so-called guideposts: the size of the burden imposed by a challenged voting rule, the degree to which a voting rule departs from what was typical in 1982 when Section 2 was amended, the size of the racially disparate impact of a challenged voting rule, alternative opportunities to vote provided by a State, and the strength of the state interests served by a challenged voting rule.

The guideposts provide judicial cover for voter suppression efforts, making it harder to bring successful Section 2 claims.

Following the Brnovich decision, laws with a racially disparate impact deriving from past discrimination may nevertheless survive a Section 2 challenge if, in the mind of a judge, the burden on voters is slight and a state’s voting opportunities are reasonably accessible.

In a particularly troubling portion of the opinion, Justice Alito claims that “one strong and entirely legitimate state interest is the prevention of fraud.” Later, he also contends that “a state may take action to prevent election fraud without waiting for it to occur and be detected within its own borders.”

Every state already prohibits fraudulent voting. Yet the Court’s amplification of the voter fraud canard gives justificatory fodder to Republican officials in their quest to suppress votes.

As expected, some commentators wish to downplay the decision, viewing the new guideposts as “a pretty obvious framework” for resolving these types of election administration disputes. Such claims that there is “nothing to see here” strain credulity to the point of offensiveness.

The Brnovich majority opinion unambiguously conflicts with both the text and intent of the VRA. And commentators suggesting that the opinion does little more than afford states the latitude to benignly experiment with their voting rules reveal willful naivety about the Republican Party’s aims.

Brnovich is an unfortunate decision, and restrictive voting laws are certain to proliferate in its wake. The United States needs a conceptual reorientation of how members of the public, along with courts and legislatures, perceive the right to vote, a reorientation that is focused on constructing and ensuring universal access to the right to vote, rather than always reacting to those seeking to limit it.

The task could hardly be more urgent.

The right to free and fair elections is a core tenant of American democracy. But what precisely does “free and fair” mean in 2021?

In the past year, 18 states have passed more than 30 laws that place new restrictions access to the ballot box. Some of these laws impose heightened voter ID mandates, while others make it harder for voters to request or drop off mail ballots. In contrast, 25 other states have passed laws that expand voting access, including by increasing early voting opportunities, providing for automatic voter registration, and eliminating limitations on voting by mail. In addition, the U.S. Supreme Court has issued several recent decisions with important implications for voting rights and electoral districting.

Against this backdrop, The Regulatory Review has invited thought leaders to comment on these recent legal developments by analyzing trends in state and federal election laws and offering recommendations for future reform efforts. The Regulatory Review hopes that this series will shed light on the expansive role that law plays in regulating the electoral process.

The contributors to this series are: Richard Briffault, Columbia Law School; Andrew Garber, Brennan Center for Justice; James A. Gardner, University of Buffalo School of Law; David Schultz, Hamline University; Joshua Sellers, Arizona State University Sandra Day O’Connor College of Law; Ciara Torres-Spelliscy, Stetson University College of Law and the Brennan Center for Justice; Doug Spencer, University of Colorado Law School; and William Wilder, Brennan Center for Justice.

Brnovich and Its Implications

September 20, 2021 | Joshua Sellers, Arizona State University Sandra Day O’Connor College of Law

The Supreme Court’s decision in Brnovich v. Democratic National Committee signals a new era of restrictive voting laws. 

The False Flag of Political Accountability in Election Reform

September 21, 2021 | Doug Spencer, University of Colorado Law School 

Some state lawmakers aim to give elected officials control over election administration and outcomes.

A Voting Rights Faustian Bargain

September 22, 2021 | David Schultz, Hamline University 

Democrats should accept voter ID in exchange for Republican support of national voting standards.

Red State Lawmakers Preempt Campaign Finance Laws in Blue Cities

September 23, 2021 | Ciara Torres-Spelliscy, Stetson University College of Law and the Brennan Center for Justice 

Republican states with major Democratic metropolitan centers are forestalling local efforts to reform election law.

The Regulatory Role of Election Officials

September 24, 2021 | Andrew Garber and William Wilder, Brennan Center for Justice 

Legislative backlash against election officials poses serious implications for democracy.

The Promise and Peril of Local Election Administration

September 27, 2021 | Richard Briffault, Columbia Law School

Local election officials played a critical role in facilitating free and fair elections in 2020.

Only Federal Regulation Can Ensure Fair Elections 

September 28, 2021 | James A. Gardner, University of Buffalo School of Law

Congress should use its constitutionally granted authority to regulate elections and protect democracy.

The surge in online learning prompted by the COVID-19 pandemic created a seller’s market for education technology companies. Long before the surge, however, a cultural shift in education had already encouraged the digitization of the industry. Now, many education leaders are scrutinizing the collection and use of student data as they seek to interpret, understand, and comply with privacy regulations designed to safeguard sensitive student information.

Under the Family Educational and Privacy Rights Act (FERPA) of 1974, educational institutions are prohibited from sharing students’ “personally identifiable information” without parental consent. FERPA regulations apply to all education providers receiving federal funds and are designed to protect students’ paper and digital education records. In 1978, federal lawmakers expanded the protections granted under FERPA through passage of the Protection of Pupil Rights Amendment (PPRA), which grants parents and students the right to opt out of federally supported surveys or evaluations that concern a number of protected topics.

The regimes established by FERPA and PPRA are implemented by the Education Department and principally address schools’ obligations. FERPA and PPRA rules do not apply to education technology companies—or so-called “ed-tech” firms. Passed in 1998, the Children’s Online Privacy Protection Act (COPPA), however, is enforced by the Federal Trade Commission (FTC) and prohibits operators of online services, commercial websites, and children’s apps from collecting and disclosing data about children under age 13 without parental consent.

As the use of ed-tech has continued to soar in recent years, industry leaders have looked beyond the three primary federal student privacy laws and turned to self-regulation as a means of protecting student data. In 2014, the Software & Information Industry Association and the Future of Privacy Forum developed the Student Privacy Pledge, an industry pledge whereby ed-tech companies make public statements detailing their student data privacy practices for the sake of accountability.

Although signing the Pledge is voluntary, the FTC can use companies’ public commitments to bring civil enforcement actions against any of the 400-plus signatories of the Pledge that fail to protect student data. Many critics insist, however, that such actions have yet to take place. Some advocates call for reinforcing traditional student privacy protections to address the growing digital education landscape.

In this week’s Saturday Seminar, scholars explain gaps in the regulation of student data privacy and propose methods to better protect student information and data.

• Current debates about student privacy fail to include increasingly popular online learning platforms that offer learning experiences directly to users, suggests Elana Zeide of the University of Nebraska College of Law and Helen Nissenbaum of Cornell Tech. In an article published in Theory and Research in Education, Zeide and Nissenbaum highlight how two types of platforms—Massive Open Online Courses (MOOCs) and virtual learning environments (VLEs)—are not included in the scope of student privacy regulation because they gather personally identifiable information directly from learners without school mediation. They argue that operators of MOOCs and VLEs should go beyond compliance with commercial data use regulations to preserve student privacy norms specific to the education sector.
• In an article published in the Duke Law & Technology Review, Alexi Pfeffer-Gillett of the University of Maryland Carey School of Law argues that education software companies are not complying with the Student Privacy Pledge. After analyzing the privacy policies of eight companies that have signed the Pledge, Pfeffer-Gillett explains that seven are in violation of at least one of the Pledge’s core promises. Apple, for example, collects personally identifiable information and engages in behavioral targeting of advertisements. Pfeffer-Gillett also notes that companies that have not signed the Pledge are not necessarily less compliant with the Pledge’s standards. Instead, he suggests that “the Pledge may be more valuable as a public relations tool than as a means of actually effecting … industry improvements.”
• De-identification of student data alone cannot adequately protect student privacy, Elad Yacobson of the Weizmann Institute of Science and several coauthors argue in an article published in the Journal of Learning Analytics. Using machine-learning algorithms to analyze and cluster unlabeled datasets, Yacobson’s team was able to re-identify personal information from de-identified student interaction data. Yacobson and his coauthors could even identify when a selected group of gifted children went on a school field trip. Noting that there is no “silver bullet” for education data privacy, Yacobson and coauthors contend that privacy technology must be accompanied by clear regulation and increased awareness among educators.
• In a research paper in Research and Practice in Technology and Advanced Learning, Tore Hoel of Oslo Metropolitan University and Weiqin Chen of Augusta University examine data sharing through a pedagogical lens. Hoel and Chen suggest three principles for consideration in educational data privacy policies. First, privacy and data protection should be achieved through the negotiation of data sharing with individual students. Second, educational institutions should be transparent with their decisions to access data, and such access should pass a necessity standard. Finally, schools and universities should use data sharing negotiations as an opportunity to increase data literacy.
• In a paper in the Virginia Journal of Law and Technology, N. Cameron Russell of the Fordham Center on Law and Information Policy and several coauthors identify a legal and regulatory gap in the sale of student information: existing privacy laws do not encompass the sale of student information by data brokers. Russell’s team advocates transparency in the commercial marketplace for student data. They argue that brokers should be required to follow procedures that promote data accuracy, such as an obligation to notify downstream data users of inaccuracies. They also favor providing opt-out clauses to parents and emancipated students and recommend that schools should inform students and families about how their survey results will be used commercially before administering them.
• In a chapter of the Cambridge Handbook of Consumer Privacy, Elana Zeide of the University of Nebraska College of Law argues that traditional student privacy regulations fall short in “an era of big data.” Zeide recommends best practices for education technology companies to cultivate trust amongst stakeholders, such as providing sufficient transparency and accountability. She also suggests upholding traditional expectations that students’ personally identifiable information will remain in schools rather than be sold to for-profit companies.

IN THE NEWS

• The U.S. Department of Justice revised its policing policies to prohibit federal law enforcement officers from using chokeholds and no knock warrants. The Justice Department acknowledged that chokeholds have “too often led to tragedy” and ordered that chokeholds be prohibited unless federal officers reasonably believe that they or others are in imminent risk of physical danger or death. The Justice Department also ordered that federal officers only be permitted to use “no knock” entries after they obtain two separate agency authorizations or if there is an imminent danger of physical violence. U.S. Attorney General Merrick Garland stated that “building trust and confidence between law enforcement and the public we serve is central” to the Justice Department’s mission.
• A federal appellate court affirmed a lower court’s decision that barred a Tennessee law restricting abortion. The law criminalized doctors performing abortions after detecting a fetal heartbeat and performing an abortion of a fetus with potential Down syndrome, among other things. The court explained that the law was a “substantial obstacle” to a woman’s constitutional right to an abortion because most women do not receive an abortion before a doctor can detect a fetal heartbeat. Writing for the majority, Judge Martha Craig Daughtrey claimed that the court would contradict precedent and act as “judicial activists” if it upheld the law.
• U.S. Citizenship and Immigration Services (USCIS) announced a COVID-19 vaccine requirement for individuals undergoing the immigrant medical examination process. Immigrant medical examinations are typically required for individuals applying for legal permanent status, among others. The new COVID-19 vaccine requirement is based on the Centers for Disease Control’s determination that the vaccine is “in the interest of public health.”
• In a 3-2 vote, the Federal Trade Commission (FTC) rescinded its prior guidance on assessing the competitive impact of vertical mergers. The existing guidance documents—the Vertical Merger Guidelines, issued jointly with the Justice Department, and the FTC’s Vertical Merger Commentary—were published in 2020. The FTC stated that the withdrawn documents contain “unsound economic theories that are unsupported by the law or market realities.” The Justice Department stated that it would conduct its own review of the guidelines and work with the FTC to seek public comment—a process that has not yet occurred for the current guidelines.
• President Biden established an initiative that will require various agencies, such as the U.S. Department of Education and the U.S. Department of Commerce, to create action plans increasing educational and economic opportunities for Hispanic communities. The agencies’ plans should address federal employment barriers for Hispanic people, challenges brought on by the COVID-19 pandemic for higher education institutions that serve Hispanic communities, and discriminatory policies that hinder educational and economic opportunities for Hispanic communities, among other things. The initiative also created a commission that will advise President Biden on approaches to strengthening educational and professional development for Hispanic communities.
• The Justice Department’s Antitrust Division and the FTC issued a joint statement on maintaining competition during the Hurricane Ida recovery efforts. The agencies noted that existing antitrust rules allow firms to collaborate when responding to disasters, even in cases where the collaboration involves two competitors. The agencies cautioned, however, that attempts to exploit individuals and communities impacted by Hurricane Ida will not be tolerated. The Justice Department’s Antitrust Division cited its history of taking action against parties who engage in anticompetitive or fraudulent schemes after disasters.
• The Responsible Offshore Development Alliance, a coalition representing the interests of fishermen and the fishing industry, requested judicial review of the federally approved Vineyard Wind project, an offshore windmill development in the Atlantic Ocean. The coalition also requested that the court review federal documents, such as a statement of the project’s environmental impact and the project’s water discharge permit, that were used to approve the project. The coalition argued that the project’s approval violated environmental laws, animal laws, and the Administrative Procedure Act. Executive director of the coalition, Anne Hawkins, claimed that the Vineyard Wind project must be reviewed “so that future projects are following a trusted roadmap instead of a flawed and dangerous example.”

WHAT WE’RE READING THIS WEEK

• In a report by the Congressional Research Service, Corrie E. Clark and Heather L. Greenley, Congressional Research Service energy policy analysts, discussed the challenges and benefits that cryptocurrency presents to the energy sector. Clark and Greenley found that the production of some types of cryptocurrency requires substantial energy. Clark and Greenley explained that the substantial energy used during cryptocurrency production can, at times, exceed the power capacity of a region and drive up electricity costs for customers. Clark and Greenley suggested that to curb the energy intensity of cryptocurrency, the U.S. Congress and the U.S. Department of Energy could establish a minimum energy conservation standard for cryptocurrency mining technology and data centers. Clark and Greenley also noted that Congress could decide that the Federal Energy Regulatory Commission has the authority to regulate cryptocurrency because blockchain technology could be considered a form of electricity trading.
• In a report by the Center for American Progress (CAP), Eugenio Weigend Vargas, CAP’s director for gun violence prevention, and Jeri Bonavia, executive director at the Wisconsin Anti-Violence Effort Educational Fund, discussed the relationship between a Wisconsin law allowing concealed carry firearms and increased gun violence in Wisconsin. Weigend and Bonavia focused their analysis on a 2011 Wisconsin law that enabled individuals to carry concealed firearms after obtaining a permit for the first time in the state’s history. Weigend and Bonavia found that certain violent gun-related crime and gun theft increased after the law was implemented.
• In an Environmental Defense Fund blog post, Gabriel Malek and several coauthors argued that the U.S. Securities and Exchange Commission should require companies to disclose their climate-related risks to investors. Malek and his coauthors contested that Winter Storm Uri—a storm in Texas that led to widespread electricity loss, billions of dollars in damage, and the death of over 150 people—should spur mandatory climate disclosure in yearly company reports because this information can help investors better assess the cost of climate related risks. Malek and his coauthors reasoned that such disclosures would cause companies to invest more heavily in climate mitigation efforts and disaster planning.

FLASHBACK FRIDAY

• In an essay in The Regulatory Review, David Rudovsky, law professor at the University of Pennsylvania Law School, discussed problems with excessive police force in the United States. Rudovsky highlighted that police violence is compounded by qualified immunity, a doctrine that often shields officers, who are found to have violated individuals’ rights, from paying damages in civil court. Rudovsky suggested possible regulatory solutions for police reform, including conducting an in-depth review of departmental force and training policies, providing officers with less lethal weapons, and calling attention to implicit biases that officers may hold against minorities.

Can the government stop companies from increasing prices solely because competitors increased their prices?

In a recent paper, Brendan Ballou, a U.S. Department of Justice trial attorney, argues that the Federal Trade Commission (FTC) needs to do just that. Ballou asserts that a new method of price-fixing regulation can reduce tacit collusion. He proposes a “no-collusion” rule under which no business can raise “its prices solely because a competitor has done so.”

Ballou asserts that, in a world of concentrated industries, it is easier for companies to use a range of public information—typically “public announcements, investments, and algorithms”—to determine how their competition will change their prices, even without direct communication with their rivals.

He explains that tacit collusion is harmful because companies can focus their pricing strategies on rival’s pricing, instead of demand. When this happens in a consolidated market, consumers may pay a higher price for the same quality product.

Ballou cites two examples in the airline industry, an industry which has experienced drastic consolidation in recent years as four airlines now generate over 60 percent of domestic business. One example occurred when American Airlines publicly announced new charges for checked bags, and United and U.S. Airways immediately did the same. In another instance, the four biggest airlines increased change fees to exactly $200 within two weeks of each other.

Ballou argues that such instances of tacit collusion are different from standard price fixing, where competitors engage in explicit agreements to set prices. Prosecutors can readily deter explicit agreements through antitrust enforcement actions under the per se rule of the Sherman Act. Under the per se rule, the government only needs to prove that an agreement exists to show that an antitrust violation occurred. The company is not permitted to defend its actions.

But the per se rule does not apply to tacit collusion. The answer in these cases, Ballou says, is for the courts to accept a no-collusion rule. Such a flat ban on any collusion—both explicit and tacit—would give the government a tool it needs to reduce the likelihood that companies can raise prices solely based on their competition, according to Ballou. It would allow the FTC to obtain monetary damages, issue injunctions, and require monitoring systems for competitors’ pricing algorithms.

Some large companies have so many products that they price according to an algorithm. Ballou’s concern is that these algorithms may track only their competitors’ price, automatically adjusting their price when a competitors’ price increases. In one example, an independent Amazon bookseller’s science textbook rose to a price of $23 million because the seller used an algorithm to price the book slightly higher than the exact same book from a different seller, leading to an absurd price war.

The FTC’s current policy is that matching a competitor’s price is acceptable, unless it is based on an “agreement or coordination with a competitor.” Ballou’s proposal would strengthen the FTC’s policy. Competition decreases when companies base their prices solely on their competitors, leading to increased profits without any innovation, hurting consumers and workers alike.

According to Ballou, providing the FTC with greater opportunities to prosecute tacit collusion is important because the Justice Department is currently unable to bring tacit collusion cases after the U.S. Supreme Court’s decision in Matsushita v. Zenith Radio.

Although the Court has eliminated the Justice Department’s ability to prosecute tacit collusion under the Sherman Act, the FTC can use the Federal Trade Commission Act to prosecute tacit collusion because this latter statute contains no requirement that a collusive agreement exist. Ballou argues the FTC should use the “unfair methods of competition” section of the FTC Act to combat tacit collusion.

Critics have argued that Ballou’s proposal would be difficult to enforce because competitors could easily lie about why they raise prices.

Ballou argues that lying is harder than it appears. He only targets very specific instances where nothing else could have impacted the pricing decision except for the competitor’s price. Moreover, he argues that courts would evaluate the validity of any purported justifications and that companies would struggle to add legitimate reasons to each price increase before the change occurs.

Ballou concedes that his proposal would not stop all or even most tacit collusion. But, he argues it will slow down the most egregious instances of tacit collusion. He asserts that preventing companies with oligopoly power from adjusting prices based solely on the competition will reduce prices for consumers and force competitors to compete, not coordinate. He notes that the government should not permit price fixing just because competitors did not explicitly make an agreement to collude with each other.

Many have criticized the U.S. Supreme Court’s recent decision to block the federal eviction moratorium instituted by the U.S. Centers for Disease Control and Prevention (CDC), asserting that this ruling would engender increased housing insecurity among millions of low-income renters during the ongoing coronavirus pandemic.

Yet this decision and its consequences were inevitable, due to months of overdependence on eviction moratoriums as long-term solutions predicated upon changing the market-based relationship between landlords and renters.

Since the onset of the pandemic, policymakers on both sides of the political spectrum have generally supported eviction moratoriums despite their questionable efficacy and legality—as a way to mitigate the economic devastation of a historic, global pandemic on low-income renters.

Landlords throughout the United States observed a near-continuous federal moratorium on evictions, first enacted via legislation through the Coronavirus Aid, Relief, and Economic Security (CARES) Act from March through June of 2020. That moratorium was later continued to December 2020 via public health orders from the CDC, and subsequently to January, March, June, and October of 2021.

Sadly, eviction moratoriums were never independently sustainable solutions.

The CDC’s focus on prohibiting evictions by landlords on behalf of renters neglected the reality that landlords, like their tenants, are also debtors with mortgages, insurance, and taxes, yet they were expected to maintain normal services while operating at a loss during an eviction moratorium.

Almost 90 percent of U.S. landlords are individual investors, or “mom-and-pop” landlords, that retain an average household income of $97,000 per year, with rental revenues comprising 5 to 20 percent of their annual earnings. Mom-and-pop landlords are more likely to cater to low-income tenants, charge lower rents, face increased operating costs, and maintain a smaller financial cushion than corporate landlords from which to absorb any lapses in rental payments.

For each of the 10.9 million renters estimated to be at risk of falling behind on their rent at the onset of the coronavirus pandemic, approximately one mom-and-pop landlord saw a reduction in income following subsequent eviction moratoriums. Eviction moratoriums simply shifted the threat of economic hardship from renters to landlords, to the benefit and detriment of just as many people.

In fact, the spillover effects from eviction moratoriums on local housing markets and economies, due to the ensuing financial instability for landlords, are the very same crises these policies were intended to prevent by reducing financial instability for renters. This unfortunate result was a natural outcome as eviction moratoriums inherently disregard the conditional dependence of both landlords and the broader economy on income from renters.

So, suspending evictions––a key guarantor to renters’ fulfillment of their financial obligations––was never a long-term solution, absent ample resources to mitigate moratoriums’ successive shockwaves on landlords, the housing market, and economy at large.

Yet despite these inherent deficiencies, short-term eviction moratoriums could have bought renters and landlords valuable time to develop financial buffers against long-term housing insecurities, aggravated by the coronavirus pandemic. Unfortunately, policymakers did not clearly define and maintain their timelines, nor did they effectively disburse additional aid to landlords and renters in preparation for an eventual expiration of these policies.

Both the federal eviction moratorium and the many other moratoriums instituted at the state level were arbitrarily extended for months on end without clear timelines or specific criteria for repeal. These extensions created undue economic uncertainty for landlords and local housing markets while diminishing the credibility of moratoriums as a solution.

Furthermore, landlords had few direct options to recover lost income while such eviction moratoriums were active. Most were ineligible to receive relief from the now-expired Paycheck Protection Program and were further prohibited from using Pandemic Unemployment Assistance, as made available by the CARES Act, to substitute unpaid rental income.

Conversely, landlords were eligible to receive Economic Injury Disaster Loans, but actual relief was capped to a $10,000 emergency grant per applicant. Although landlords and their tenants were also eligible for financial assistance via the Emergency Rental Assistance Program (ERAP), a mere $5.1 billion out of $46.5 billion in allocated funds has been disbursed to applicants since its ratification through the CARES Act last year.

In light of the Supreme Court’s decision against eviction moratoriums enacted in response to executive orders—and with the expiration of most state-level mandates in August—policymakers may be tempted to reimpose such mandates through legislative consensus, as suggested within the Court’s majority’s opinion.

Given that the majority of Americans are fully vaccinated and increased public and private mandates will likely bolster current numbers, in addition to the appreciating economic conditions and moratoriums’ intrinsic side-effects, anti-eviction mandates from the U.S. Congress likely would not muster the same level of broad support today as they would have one year ago.

Instead, removing bottlenecks in the distribution of ERAP funds to landlords and renters would be a more effective, equitable, and palatable approach for policymakers. Studies indicate that high documentation burdens, lengthy payment timelines, and insufficient infrastructure for rental support have left these funds stuck with state and local authorities. Only 11 percent of allocated funds have reached landlords and renters, while $1 for every $6 from the 2020 Coronavirus Relief Fund earmarked for rental assistance programs was redirected or unspent.

Even the Biden Administration has acknowledged that its most recent extension of the federal eviction moratorium was intended mainly to buy additional time, by providing financial assistance to landlords and renters before an eventual return to normal conditions.

With time still of the essence, policymakers must remain focused on this specific mission by streamlining the application process so that landlords and renters receive timely assistance, and synchronizing key procedural steps to avoid major disparities between states and localities.

Many landlords and renters face dire straits today, following months of overdependence on eviction moratoriums without supplemental relief for an eventual return to normal market conditions.

Instead of delaying the inevitable with further moratoriums, policymakers should facilitate an expeditious distribution of over $40 billion in remaining ERAP funds. By ensuring that financial assistance begins with landlords and renters, policymakers can kickstart the U.S. economy from the ground up, enabling all its facets to receive the support they require to thrive in a post-coronavirus environment.

The U.S. gig economy, fueled by platform workers, including Uber drivers and Instacart shoppers, contributes more than $1 trillion to the U.S. economy. Last November, the U.S. Securities and Exchange Commission (SEC) proposed a rule that could pave the way for these platform workers—commonly known as gig workers—to receive equity compensation just like employees and other categories of independent contractors.

If the SEC issues its proposed rule, such a change would allow platform workers to profit from growth in business just as traditional freelancers, such as consultants and advisors, have for some time. Ironically, the flexibility in the proposed rule that would allow company stock awards to nonemployees would not apply to benefits that may be of greater value to platform workers—for example, participation in traditional employer-sponsored retirement plans. Compensation in the form of company stock would not trigger employee status for platform workers.

Even if the proposed rule were issued by the SEC, a company that provides other employee benefits to nonemployees could incur fines and penalties from the Internal Revenue Service (IRS) and the U.S. Department of Labor.

But if the SEC’s proposed rule were coupled with the lifting of the classification restriction for certain benefits, such as an employer-sponsored 401(k) plan, businesses could offer a combination of stock compensation and access to a company retirement plan to nonemployees—making platform workers truly better off.

Although it may be sensible to give platform workers the same equity opportunities available to other contractors, the United States’ system of employee-independent contractor classification is not designed to work holistically in the interest of platform workers.

The grant of equity compensation to platform workers presents an opportunity to modernize how the employment system operates in providing both workers and companies with more input in negotiating workplace benefits while preserving the flexibility that both parties value. To do so, regulators must achieve a balance between pushing companies to pay proper taxes and providing incentives for companies to make benefits, such as retirement plans, available to platform workers.

The proposed rule would make amendments that are consistent with the compensatory purposes of Rule 701, which exempts certain sales of securities made to compensate consultants and advisors. Under the proposed rule, employers would have to treat platform workers similarly to these types of workers. Platform workers, however, would be subject to stricter percentage and dollar amount constraints concerning the equity compensation that they receive, as compared to other independent contractors. Arguably, these limits are in place to protect platform workers from capital raising and other purposes incompatible with the rule’s purpose.

Another stark difference between platform workers and the other groups that would be impacted by the proposed rule is the ability to negotiate the terms of the equity compensation—platform workers would be explicitly prevented from individually bargaining for the amount and terms of any securities issued.

The irony is that it is in the interest of many platform workers to be diversified in terms of retirement investments. Indeed, it is better for workers not to rely on the stock of the companies they work for because their human capital is already tied to their company. If a company’s stock value declines, both jobs and investments are in jeopardy.

Employee stock is easier to provide than access to a 401(k) plan because some compensatory stock awards are not tax-deferred, so they do not trigger employee classification issues. By contrast, when employers try to offer traditional employer-sponsored benefits, such as access to a 401(k) plan, they are hindered by labor laws and run into legal issues surrounding employee classification.

Because 401(k) plans are governed by the Employment Retirement Income Security Act, an employer would violate the exclusive benefit rule if it offered independent contractors access to its 401(k) plan. The exclusive benefit rule requires that plans be maintained and operated for the exclusive benefit and in the best interest of a company’s employees.

By providing coverage to nonemployees, such as platform workers, a plan sponsor violates this rule and becomes liable for civil penalties. These penalties can be significant—even exceeding the coverage of taxes owed to the government as a result of the misclassification. Noncompliance with the rule could also lead to the 401(k) plan becoming non-qualified and losing its tax-deferred status altogether. Although the IRS provides self-correcting options that enable the employer to preserve the plan’s tax-favored status, these options are obviously not practical to rely on for broadscale inclusion of contractors into retirement plans.

Modernization of the employee-independent contractor classification is fundamental, and the scope of such reforms should consider how companies use workplace benefits to attract and retain talent.

Currently, employers are restricted to making a wholesale choice when it comes to offering, or not offering, benefits. What if there were no misclassification penalties for employees and contractors, but rather the employer was simply responsible for working with the employee or contractor to ensure that the correct taxes are paid in a timely way?

Is it reasonable, provided that the government receives accurate data on each individual’s employee or contractor status, to subject employers to IRS misclassification penalties when permitting a nonemployee access to its 401(k)?

These penalties can be significant depending on the wages of the employee and the timing of the delay in determining the misclassification. Instead of having a reactive policy, why not report upfront whether an individual is an employee or a contractor, allow participation in retirement plans, and collect the appropriate taxes?

Without these penalties, businesses could offer—or even be required to offer—benefits such as participation in retirement plans if using stock compensation. In this way, those receiving company stock have the ability to diversify into other assets through the company.

Rather than penalizing and providing strong disincentives for companies to treat platform workers well, employers should have the ability to use different workplace perks to recruit traditional contractors and platform workers just as they do with employees—not just stock compensation but access to a reliable retirement plan. Employers could compete for nonemployees with benefits, giving these platform workers more leverage and negotiating power; such changes would empower individuals far more than the current proposed rule.

If the SEC decides to move forward with the proposed rule, we believe that the Commission should work with the IRS and the Labor Department to make companion changes so that the net effect is empowerment for platform workers, rather than financially limiting them to receive only highly undiversified investments.

Traditionally, financial market actors and monetary authorities have considered environmental matters as outside of the scope of monetary policymakers. This stance may change now that central banks are beginning to recognize that climate change could present real threats to price stability.

Central banks are tasked with managing the money supply while also maintaining price stability. Their key instruments are interest-rate targets. Lower interest rates encourage economic growth in two ways: first, by reducing borrowing costs for firms wanting to invest in new projects, and, second, by increasing the purchasing capacity of consumers with credit card debts and mortgage borrowers.

But stimulating economic growth could also spark inflation, as too much money chases a limited number of goods. Inflation hurts long-term economic growth and lower-income groups without indexed incomes. So, to guide monetary policy toward price stability, most central banks aim for an inflation target of 2 percent.

One way to protect a central bank’s effectiveness in controlling inflation is to insulate it from political pressure as political leaders may want to institute an unwarranted “easy” monetary policy with low interest rates, especially before elections. Low interest rates might give economic growth a short-term boost, but it could create inflation in the longer term. Central bank independence from the executive and the legislature allows them to fend off such inflationary pressures.

When it comes to climate change, central bank traditionalists see the problem as fundamentally a political issue, not directly linked with price stability mandates. Moreover, banking’s traditional puritans believe that central banks do not have the tools to translate climate science into actionable metrics for addressing climate risks. They fear that if central banks cave in on climate issues, other political issues will come next.

Yet it is clear that climate change does create new threats to the economy. For central banks, addressing climate considerations may be as simple as applying their normal framework for financial risk assessment. Climate change presents three types of risks for financial markets: physical, transition, and liability.

Physical risks mean that firms may suffer physical damage to their operations from hurricanes, sea-level rise, forest fires, or drought.

Transition risk means that changes in regulations or consumer preferences may alter business models, hurting carbon-intensive businesses and favoring low-carbon ones.

Liability risk means that courts may increasingly hold firms responsible for climate costs and order them to compensate parties hurt by their actions or inaction.

If firms face these three kinds of risks, then so do the banks that have lent to them. This relationship explains why central banks, as lenders and overseers of financial stability, need to get involved in the assessment of climate risks.

Observers who believe in “perfect markets” might expect omniscient financial markets to consider climate risks in asset pricing, without any prodding from central banks. Yet, despite efforts to incorporate climate change into the stress testing of banks, financial markets do not address climate change in a meaningful way. For example, mortgage lenders still do not factor climate vulnerability into their business decisions. Banks with mortgage-backed assets on their balance sheets are, therefore, overvaluing collateral.

Central banks could intervene to ensure that no risk is left behind. They could address climate-induced risks by encouraging appropriate asset pricing for collateral that banks require from borrowers, supporting “green bonds” in asset purchasing programs, or updating their own collateral requirements when lending to commercial banks.

The challenge is deploying the tools needed to assess all the risks.

Central banks have not cohesively responded to the climate issue, with the U.S. Board of Governors of the Federal Reserve System and the European Central Bank (ECB) taking different positions. Jerome Powell, Chair of the Federal Reserve, maintains that climate change is a concern only as it relates to the Federal Reserve’s mandates. In July 2021, when testifying before the House Financial Services Committee, for example, Powell clarified that the Federal Reserve’s “work on climate change really exists as part of our preexisting mandates for supervising financial institutions and for the overall stability of the financial system.”

By contrast, the President of the European Central Bank, Christine Lagarde, has articulated a different approach. Since the beginning of her tenure as president, Lagarde has been vocal about her perspective on climate impacts. She explained in her first official parliamentary hearing that “when we construct models, when we try to measure the output gap, when we try to forecast growth, when we try to have identification of expected inflation, we need to embed climate change imperatives in that work.” Moreover, Lagarde is not shy about her desire to see the ECB include climate change in its primary mandate.

If Powell and Lagarde support a similar aim, anchored in the logic of risk assessment and price stability, why do they frame it differently? Arguably, the Powell-Lagarde divergence reflects the politics of the two jurisdictions. Sharp political polarization in the United States limits the Federal Reserve’s room to become vocal on climate policy. It cannot afford to be seen as taking sides. Powell could be seeking to safeguard the Federal Reserve’s image of political neutrality, the way Chief Justice John Roberts is sometimes portrayed as doing so for the Supreme Court.

Lagarde does not face such constraints, given the widespread support for climate issues in the European Union, even among conservative parties. Perhaps this consensus is why she can make statements declaring that the “true social and environmental costs of carbon need to be included into the prices paid by all sectors of the economy,” which could spark off a political firestorm in the United States.

Countries create independent administrative or judicial branches to ensure that politics does not undermine good governance. The expectation is that, armed with deep expertise and protected from political pressures, politically insulated bodies will make decisions—even unpopular ones—that foster long-term health of the country. Yet, these independent bodies also need legitimacy from citizens. Although they cannot be perceived as responding to political pressure, they cannot ignore it either, especially in an era of rising populism.

The difference between Powell and Lagarde’s responses to climate issues may reflect the varying climate politics in the two jurisdictions. At a substantive level, however, both recognize the risks that climate change poses to the financial system and its eventual interference with central bank mandates to maintain price stability.

Eventually, the proof of the pudding lies in its eating. Instead of fixating on what central banks say, we should focus on what they do. Maintaining price stability will probably remain the most important metric for assessing their behavior. Yet innovations to enhance the resilience of the financial system against climate risks might soon become another metric.

What if hiring algorithms rejected job applicants explicitly for being women? Amazon’s experimental hiring algorithm did just that in 2015. Amazon sought to create a program to screen resumes for top talent, but it trained its algorithm using a decade of resumes from mostly male applicants. The algorithm replicated historical hiring patterns, discriminating against women applicants. Although Amazon abandoned the tool in 2017 before deployment, it illustrates how algorithms can reproduce existing patterns of inequality.

According to a LinkedIn survey, 67 percent of recruiters and hiring managers believe that artificial intelligence helps save time. The cost to fairness and equity, however, is unclear.

As recruiters use algorithms at more steps of the hiring process, bias can enter hiring decisions in several ways. Algorithms can influence hiring decisions by targeting job postings based on factors, such as age or gender, which limits who can apply. Programs that review resumes can lead to discrimination if resumes include a Black-sounding name, list a women’s college, or mention a disability. Algorithms that analyze video interviews may struggle with facial recognition for darker-skinned applicants, as well as penalize non-native speakers or people with disabilities.

Federal civil rights law prohibits employment discrimination based on race, color, religion, sex, and national origin. Other federal laws prohibit employment discrimination based on pregnancy, disability, age, and genetic information.

The U.S. Equal Employment Opportunity Commission (EEOC) issued guidelines in 1978 for how employers can and should choose their employees. Ten senators wrote to the EEOC in December 2020, requesting information about the Commission’s authority to investigate companies that offer hiring technologies. They raised concerns that more companies would use algorithms for hiring due to pandemic restrictions, which could reproduce and deepen systemic patterns of discrimination in the workforce. The EEOC has not yet responded.

In this week’s Saturday Seminar, scholars propose methods to counter discrimination in algorithmic hiring.

• Regulating algorithmic hiring practices will help move society closer to the national ideal of equal opportunity in spaces of employment, explains Ifeoma Ajunwa of University of North Carolina School of Law in an article for the Harvard Journal of Law & Technology. Ajunwa advocates requiring employers to conduct regular audits of automated hiring systems to meet their duty of care to use equal opportunity mechanisms. Ajunwa suggests that a regulatory auditing process of employment algorithms would encourage employers to pay attention to data retention and record-keeping practices.
• Technology companies that produce predictive algorithms for hiring should be accountable if their technology reinforces or worsens existing patterns of inequalities in hiring, argues Pauline T. Kim of the Washington University in St. Louis School of Law in an article in the Virginia Law Review. Kim explains, however, that individuals will find it difficult to succeed in court because they lack information about how companies customized their hiring experiences in potentially discriminatory ways. Instead, Kim recommends using regulation to address concerns about fairness and bias in algorithmic systems at the design stage to anticipate and prevent problems.
• Algorithms for workforce analytics can both mitigate biases and reproduce structural inequality, explains Stephanie Bornstein of University of Florida Levin College of Law in an article published in the Alabama Law Review. Bornstein recommends that regulators require employers to document their algorithmic choices before they use them in hiring decisions. She argues that existing discrimination law should strengthen employer liability to mitigate disparate impacts produced by algorithms.
• The EEOC’s guidelines may create a legal imperative for tech companies to use de-biasing techniques on their algorithms, argue Manish Raghavan of Cornell University and several coauthors in a 2019 working paper. Raghavan and his coauthors explain that employers can defend themselves in discrimination cases by justifying the disparate impact as a business necessity, but they will still be liable if plaintiffs produce an alternative business practice with less adverse impact. Raghavan and his coauthors suggest that vendors can easily reduce disparate impact in modern assessments, so de-biasing might be considered an alternative business practice that would render an employer liable if it is not undertaken.
• Federal civil rights law fails to address discrimination created by algorithms adequately, argue Allan Costa, Chris Cheung, and Max Langenkamp of the Massachusetts Institute of Technology. They warn that companies may evoke the Defend Trade Secrets Act to avoid sharing data that result in liability for discriminatory use of data by claiming the information is a trade secret. Costa, Cheung, and Langenkamp also argue that companies must realize that intellectual property law will probably not protect them from sharing algorithmic methods with civil rights groups or other auditors because intellectual property law only protects the “precise expression” of an algorithm.
• In an article published in the South Carolina Law Review, Matthew U. Scherer, Allan G. King, and Marko J. Mrkonich of Littler Mendelson P.C. explore how employers, agencies, and courts can ensure antidiscrimination compliance in algorithmic-based hiring tools. Scherer, King, and Mrkonich point to the “mismatch between the state of technology and existing legal standards” as an area of improvement for agency action. They propose a new framework to assess hiring algorithms based on standards of reasonableness, fairness, and the essence of the job itself. Scherer, King, and Mrkonich recommend that the EEOC clarify the appropriate legal standards for evaluating algorithmic hiring procedures as soon as possible to counter disparate impacts.

IN THE NEWS

• President Joseph R. Biden issued an executive order to require federal employees to vaccinate themselves against COVID-19. Under the new mandate, federal employees cannot decline vaccination in favor of regular testing. This executive order contributes to the Biden Administration’s Path Out of the Pandemic plan, which directs the U.S. Department of Labor to develop a COVID-19 vaccination or testing mandate for businesses with 100 or more workers and a rule requiring businesses to provide paid time off to become vaccinated, among other measures.
• U.S. Attorney General Merrick Garland filed a lawsuit against the state of Texas challenging its new abortion restriction law, which allows private entities to sue anyone who aids an abortion after six weeks. Garland argued the state was in “open defiance of the Constitution.” A Texas federal judge also temporarily blocked an anti-abortion group from suing Planned Parenthood under the law. The judge ruled that Planned Parenthood would suffer “irreparable injury” if sued by anti-abortion groups under the law. Planned Parenthood’s vice president for public policy litigation and law, Helene Krasnoff, said the organization was “relieved” that the court “acted quickly” but that the order was “not enough relief for Texas.”
• Texas Governor Greg Abbott signed a new voting restriction bill into law after months of Democratic-led delays. The law restricts methods and hours for voting, imposes more stringent identification requirements, and grants partisan poll-watchers more freedom. The National Association for the Advancement of Colored People and Common Cause of Texas filed a lawsuit in response, challenging multiple provisions of the law as violations of the Texas Constitution. The League of United Latin American Citizens and other Texas organizations also challenged the law under the U.S. Constitution. Abbott said that the law “ensures trust and confidence” in Texas’ elections system.
• The Supreme Court of Mexico ruled that criminalizing abortion is unconstitutional. The Supreme Court of Mexico’s ten-justice unanimous ruling struck down a penal code from the state of Coahuila establishing criminal punishment, including prison sentences for people who had abortions. The decision is binding on all federal and local judges and will prevent the Mexican government in every jurisdiction from prosecuting any person who has had an abortion. The Coahuila state government stated that the decision will be applied retroactively and any people currently serving sentences for having an abortion will be released.
• The Los Angeles Unified School District is the first major public school district to mandate vaccinations for students attending school in person who are over 12 years old. The mandate notes that “the percentage of children hospitalized after testing positive for COVID-19 has been disproportionately rising” and argues that COVID-19 is “a further threat to the successful return to continuous in-person instruction.” Although the U.S. Food and Drug Administration (FDA) has granted emergency use authorization for COVID-19 vaccines for children ages 12 to 15, if the vaccines are granted full approval for this age group, more districts may impose similar vaccine requirements.
• The U.S. Environmental Protection Agency (EPA) announced a new plan to start making rules to regulate certain pollutants, including per- and polyfluoroalkyl substances (PFAS) and other pollutants found in wastewater. EPA’s three new planned rules address wastewater discharge from meat and poultry facilities, PFAS manufacturing facilities, and metal finishing facilities. EPA Assistant Administrator for Water Radhika Fox noted in the announcement that this was the first time that the EPA will “limit PFAS in wastewater discharges.”
• FDA will reportedly delay deciding which e-cigarettes are authorized for continued sale in the United States. In September 2020, FDA required e-cigarette manufacturers to submit their products for review or remove them from the market. A federal judge had ordered FDA to issue determinations by September 9, 2021 for vape products with the largest market share, including those from Juul Labs. FDA temporarily banned the sale of flavored vape products because of concerns about use by underage individuals, and agency officials have apparently told manufacturers to “expect stricter controls on the way their products are marketed and sold.”
• EPA requested information and comments on a potential change in the way it regulates gasification and pyrolysis, also called waste-to-energy. The waste-to-energy processes convert wastes such as plastics, tires, and solid waste into energy, fuels, and chemicals. The proposal would change existing regulations under the Clean Air Act to clarify the specific rules for waste-to-energy as the processes have increased in popularity with market trends in plastics recycling. An environmental group, GAIA, previously vocalized the shortcomings of waste-to-energy as a renewable energy source, citing “technical and economic challenges” for the projects, as well as carbon dioxide emissions from the facilities.

WHAT WE’RE READING THIS WEEK

• The U.S. Department of Energy recently released the Solar Futures Study, a report explaining how the expansion of solar energy has the potential to supply 40 percent of the nation’s electricity needs by 2035. The study showed how decarbonization policies, such as carbon emissions restrictions or tax incentives for renewable energy, grid modernization, and the new deployment of renewable energy can be used to help reach President Biden’s goal of a “carbon pollution-free power sector by 2035.” The study also demonstrated that the benefits of “avoided climate damages” and improved health from cleaner air outweighed the costs associated with decarbonizing.
• In a report by EPA’s Office of Atmospheric Programs, the agency analyzed the disproportionate impact of climate change on four socially vulnerable populations: low income, minority, no high school diploma, and 65 and over. EPA discovered that among the populations studied, minorities are most likely to live in areas projected to experience the highest levels of climate change impacts. The agency found that individuals with low income or no high school diploma were 25 percent more likely to live in areas with the highest projected losses of labor hours due to rising temperatures than those outside of these vulnerable populations. Older populations, however, were not projected by the agency to be more likely than younger populations to live in areas most impacted by climate change.
• In an essay published on the website of the Urban Institute, Elaine Waxman, Craig Gunderson, and Olivia Fiol posited that due to recently increased maximum Supplemental Nutrition Assistance Program (SNAP) benefits, only 21 percent of counties will have gaps between the cost of meals and amount of assistance provided. Waxman, Gunderson, and Fiol explained that the SNAP benefits are calculated under the Thrifty Food Plan, a plan that has not been updated since 2006, despite findings that SNAP benefits do not adequately account for differences in food cost across geographic areas. Waxman, Gunderson, and Fiol concluded that the benefit increase is “a huge step forward in maximizing the effectiveness of one of the nation’s most powerful antihunger strategies.”

FLASHBACK FRIDAY

• In an essay in The Regulatory Review, Shelley Metzenbaum, the former president of the Volcker Alliance, argued that government can work well when it is valued and invested in. Metzenbaum refuted arguments that the primary obstacles to good government arise from government contracting, existing laws governing the civil service, or a “lack of professionalism among government employees.” She explained how the Department of Homeland Security’s investment in training in the wake of disasters such as the September 11th attacks and Hurricanes Andrew and Katrina prepared the agency to respond successfully to future disasters. Metzenbaum concluded that the government can be effective when those running it adequately prepare, have sufficient resources, and have “well-designed accountability” mechanisms in place.