BLS Library Blog

Brooklyn Law School Library’s New Books List for July 1, 2017 has 59 print titles and 30 eBook titles. Many of the titles deal with racial discrimination in the criminal justice administration and elsewhere, for example, He Calls Me By Lightning: The Life of Caliph Washington and the forgotten Saga of Jim Crow, Southern Justice, and the Death Penalty by S Jonathan Bass (Call No. E185.93. A3 B37 2017); Caught: The Prison State and the Lockdown of American Politics by Marie Gottschalk (Call No. HV9471. G667 2016); Homicide Justified: The Legality of Killing Slaves in the United States and the Atlantic World by Andrew T. Fede (E-Book); Killing the Black Body: Race, Reproduction, and the Meaning of Liberty by Dorothy Roberts (Call No. HV6533.L8 M37 2017); and Unequal: How America’s Courts Undermine Discrimination Law by Sandra F. Sperino and Suja A. Thomas (Call No. KF4755 .S965 2017).

More controversial is The Case for Impeachment by Allan J. Lichtman (Call No. KF5076.T78 L53 2017). Lichtman made headlines when he predicted that Donald J. Trump would defeat the heavily favored Democrat, Hillary Clinton, to win the presidential election. His latest book lays out the reasons Congress could remove Trump from the Oval Office: his ties to Russia before and after the election, the complicated financial conflicts of interest at home and abroad, and his abuse of executive authority. The book offers a fascinating look at presidential impeachments throughout American history, including the often-overlooked story of Andrew Johnson’s impeachment, details about Richard Nixon’s resignation, and Bill Clinton’s hearings. Lichtman shows how Trump exhibits many of the flaws (and more) that have doomed past presidents. As the Nixon Administration dismissed the reporting of Bob Woodward and Carl Bernstein as “character assassination” and “a vicious abuse of the journalistic process,” Trump has attacked the “dishonest media,” claiming, “the press should be ashamed of themselves.” Historians, legal scholars, and politicians alike agree: we are in politically uncharted waters—the durability of our institutions is being undermined and the public’s confidence in them is eroding, threatening American democracy itself. Most citizens—politics aside—want to know where the country is headed. Lichtman argues, with clarity and power, that for Donald Trump’s presidency, smoke has become fire.

On May 22^nd, the United States Supreme Court, in Cooper v. Harris, No. 15-1262, struck down two North Carolina congressional districts holding that race played too large a factor in drawing the districts’ borders.  Writing for the 5-3 majority, Justice Kagan said that a plaintiff challenging a voting district must prove that “race (not politics) was the ‘predominant consideration in deciding to place a significant number of voters within or without a particular district.’”  If you are interested in learning more about the constitutionality and history of gerrymandering, the library has several resources that can help. Listed below are a few of the more current sources on the topic.

Nicholas R. Seabrook, Drawing the Lines: Constraints on Partisan Gerrymandering in U.S. Politics (2017)

Radical redistricting plans, such as that pushed through by Texas governor Rick Perry in 2003, are frequently used for partisan purposes. Perry’s plan sent twenty-one Republicans (and only eleven Democrats) to Congress in the 2004 elections. Such heavy-handed tactics strike many as contrary to basic democratic principles. In Drawing the Lines, Nicholas R. Seabrook uses a combination of political science methods and legal studies insights to investigate the effects of redistricting on U.S. House elections. He concludes that partisan gerrymandering poses far less of a threat to democratic accountability than conventional wisdom would suggest.—From the publisher

Anthony McGann, ed., Gerrymandering in America: The House of Representatives, the Supreme Court, and the Future of Popular Sovereignty (2016)

This book considers the causes and consequences of partisan gerrymandering in the U.S. House. The Supreme Court’s decision in Vieth v. Jubelirer (2004) made challenging a district plan on ground of partisan gerrymandering practically impossible. Through a rigorous scientific analysis of US House district maps, the authors argue that partisan bias increased dramatically in the 2010 redistricting round after the Vieth decision, both at the national and state level. From a constitutional perspective, unrestrained partisan gerrymandering poses a critical threat to a central pillar of American democracy — popular sovereignty. State legislatures now effectively determine the political composition of the US House. The book answers the Court’s challenge to find a new standard for gerrymandering that is both constitutionally grounded and legally manageable. It argues that the scientifically rigorous partisan symmetry measure is an appropriate legal standard for partisan gerrymandering, as it is a necessary condition of individual equality and can be practically applied.—From the publisher

Tinsley E. Yarbrough, Race and Redistricting: the Shaw-Cromartie Cases (2002)

Race and Redistricting spotlights efforts to “racially engineer” voting districts in an effort to achieve fair representation. By examining one state’s efforts to confront such dilemmas, it helps readers better understand future disputes over race and politics, as well as the ongoing debates over our “color-blind” constitution.—From the publisher

Marsha Jean Tyson Darling, ed., Race, Voting, and Redistricting and the Constitution: Sources and Explorations on the Fifteenth Amendment (2001)

This three-volume work includes chapters containing the text of primary sources, such as the Fourteenth and Fifteenth Amendments of the Constitution, the Civil Rights Acts, the Voting Rights Act of 1965, and legislative documents pertaining to the passage of those laws.  Chapters also include scholarly commentary on Gerrymandering Hypocrisy: Supreme Court’s Double Standard, Making Sense Out of the Way We Should Vote, and the Case for Proportional Representation.

Election Day 2016 is not the first where a candidate for president won the most electoral votes, thus winning the presidency, but failed to win the popular vote. The unique American system provides no direct election of President and Vice-President. Since 1789, Electors chose successful candidates for those seats. The process is directed by the legislature of each state, either by popular vote or some other selection process. On the first Monday after the second Wednesday in December (which occurs this year on December 19, 2016), the electors meet in their respective States to cast their votes for President and Vice President of the United States.  Article II, Section 1, clause 2 reads: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress”.

The Electoral College decides how the nation’s Chief Executive is chosen. It dates back to the Federalist Papers. See Federalist 68, The Mode of Electing the President by Alexander Hamilton dated March 14, 1788. The pro-slavery influences of the electoral college surrounded the debate on the mode of electing the president. James Wilson proposed to a direct election by the people, but gained no support and it was decided the president was to be elected by Congress. When the constitution was considered, Gouverneur Morris brought the debate back up and decided he too wanted the people to choose the president. James Madison agreed that election of the people at large is the best way to go about electing the president, but knew that the slave states would not be influential with such a system, and so he backed the electoral college.

Instances in the nation’s history when popular vote totals for president differed from the elector count are:

• The 1824 election was a four-man race. The top two candidates were Andrew Jackson and John Quincy Adams who won despite losing both the popular vote and the electoral vote. Andrew Jackson won 151,271 popular votes (41.4%) to Adams’ 113,122 votes (30.9%), roughly 38,000 fewer popular votes than Jackson who also defeated Adams in the electoral vote by 99 to 84. Neither candidate reached the majority 131 electoral votes so the House of Representatives met to select Adams.
• The highly contentious 1876 election showed Democratic New York governor Samuel Tilden winning the popular vote over Republican Ohio governor Rutherford B. Hayes with 4,284,020 (51%) to Hayes’s 4,036,572 (48%), a margin of less than 250,000.  The electoral vote was Tilden 184 (one short of a majority) and Hayes 165 (20 ballots short). The remaining electoral votes were in dispute over voter fraud, mostly in three Southern states with Reconstruction governments: Florida, Louisiana, and South Carolina. Congress set up a special electoral 15-member commission of congressmen and Supreme Court justices. Two days before inauguration, on an 8-7 party line vote, the commission gave the disputed electoral votes to Hayes, who won by one electoral vote.
• In 1888, Benjamin Harrison won the presidency with 233 electoral votes to Grover Cleveland’s 168. Harrison lost the popular vote by more than 90,000 votes winning 5,443,892 (47.8%). Cleveland’s vote total was 5,534,488 (48.6%).
• The 2000 contest between the Republican George W. Bush and the Democrat Al Gore saw the popular vote winner lose because of the electoral vote count. Gore got 50,999,897 (48.4%) compared to Bush who had 50,456,002 votes (47.9%). The election hinged on the close vote in Florida, which prompted a mandatory recount. Litigation reached the US Supreme Court which ruled on December 12, 2000 in the 5–4 decision Bush v. Gore, ending the recounts, effectively awarding Florida’s votes to Bush. Bush won the electoral vote, 271 to 266.
• The 1800 election had no records of popular votes as electors were chosen by state legislatures. Thomas Jefferson won 73 electoral votes to John Adams who won 69. Jefferson’s margin of victory came from electoral votes created by counting slaves for purposes of representation, which led to a greater number of electors for each state. States that Jefferson carried had fewer voters. If the election were decided by popular votes, Adams would have won.

Calls for reform of electoral reform are likely after this election as they were in earlier ones. See in the Brooklyn Law School Library, Electoral College Reform: Challenges and Possibilities by Gary Bugh who says the Electoral College system was last updated by the Twelfth Amendment in 1804, despite public opinion polls showing a majority of Americans are in favor of changing or outright abolishing it. The book has essays examining all aspects of the debate, including the reasons for reform, the issues surrounding a constitutional amendment, the effect of the Electoral College on political campaigns and the possibilities for extra-constitutional avenues to change. The authors consider both the Federalists’ vision of balanced representation and a more democratic and equality-based ideal. The volume explores the potential for changing a system that many contend is long overdue. After the 2000 election, Professor Paul Finkelman’s article The Proslavery Origins of the Electoral College was published at 23 Cardozo Law Review 1145 (2002). Another article worth reading is by S.M. Sheppard titled A Case for the Electoral College and for Its Faithless Elector, published in the 2015 Wisconsin Law Review Online.

To learn about the Reform the Electoral College movement so the electoral vote reflects the nationwide popular vote for President, see the website of the National Popular Vote.

On August 25, 1916, President Woodrow Wilson signed into law the Organic Act which Congress passed to create in the Department of the Interior the National Park Service. The aim of the law was “to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.”

When the law was enacted, there were already 35 national monuments and parks including Yosemite National Park established in 1864 and Yellowstone National Park established in 1872. Today, the National Park Service has 140 national monuments and parks, 128 historical parks or sites, 25 battlefields or military sites, 19 preserves, 18 recreation areas, 10 seashores, four parkways, four lakeshores, and two reserves. The biggest park is Wrangell-St. Elias National Park and Preserve in Alaska established in 1980 containing 13.2 million acres. It is the same size as Yosemite, Yellowstone and the country of Switzerland combined. The smallest site is the Thaddeus Kosciuszko National Memorial in Philadelphia established in 1972 sitting on 0.02 acres. The highest point in the system is Denali (or Mount McKinley) at 20,320 feet. The lowest accessible point is Death Valley National Park, at 282 feet below sea level. The newest National Monument is Katahdin Woods and Waters in Maine which President Barack Obama designated this week for the 100th anniversary of the National Park Service. See NPR web page In Maine, Land From Burt’s Bees Co-Founder Is Declared A National Monument discussing the controversial designation of the woods as protected territory especially from locals concerned about federal oversight of lands that used to be central to the regional economy.

With an annual budget of $2.6 billion, the National Park Service has about 20,000 direct employees and supports 240,000 local jobs generating $27 billion for the U.S. economy. More than 307 million people visited Park Service locations in 2015 compared to 1920 when NPS sites were visited by 1 million people. Brooklyn does not have a national park but this week Brooklyn Bridge Park hosted a National Park Service celebrating the100th anniversary of its founding. Nearby sites such as the Statue of Liberty and Ellis Island are both part of the NPS. Other NPS locations in New York City include the African Burial Ground National Monument, the Lower East Side Tenement Museum, the Theodore Roosevelt Birthplace National Historic Site and Castle Clinton National Monument.

Brooklyn Law School Library users can explore OneSearch to find a large set of articles about the history of the National Park Service such as the National Parks: America’s BEST Idea? from Parks & Recreation Aug 2016, Vol. 51 Issue 8, page 44.

With the fractured Fifth Circuit ruling today that Texas’ voter ID law violates the Voting Rights Act and the Presidential election quickly approaching, you may be interested in learning more about the law on voting rights.  To research the issue, you can search the SARA catalog or WorldCat for the subject, Voting—United States or Suffrage—United States.  The Brooklyn Law School Library has over 100 different titles on the topic.  Some of the more recent acquisitions are listed below. 

• Charles Bullock et al., The Rise and Fall of the Voting Rights Act (2016).
• Michael Smith et al., State Voting Laws in America: Historical Statutes and Their Modern Implications (2015).
• Henry Flores, Latinos and the Voting Rights Act: The Search for Racial Purpose (2015).
• Donathan L. Brown & Michael Clemons, Voting Rights Under Fire: The Continuing Struggle for People of Color (2015).
• Gary May, Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy (2013).