interviews
The People Who Run This Are Your Neighbors
by Mitchell Brown and Kathleen Hale
October 23, 2020
This interview with Kathleen Hale and Mitchell Brown, professors of political science at Auburn University and coauthors of How We Vote: Innovation in American Elections, was conducted and condensed by franknews.
Kathleen: I'm Kathleen Hale. I am a professor of political science at Auburn University where I direct the graduate program on election administration. I work with Auburn faculty to conduct training and certification for election officials around the country. I've worked in and published in this field pretty much exclusively for the last decade.
Mitchell: I am Mitchell Brown. I'm also a professor of political science at Auburn University and have worked closely with Kathleen in our efforts around election administration for the past decade. We write a lot about how elections are run, how election administration works, and what that means for understanding the election system here in the US.
We're at a critical moment, in a very unique election — what’s most concerning to you?
Kathleen: Well, there's a lot going on. We study elections and the process of conducting elections as a system, and by definition, it's a complex process. There is interaction across local government, state government, and, in a limited scope, the national government. What I'm most concerned about right now is trust in the system — the trust voters have to place in something that they don't know a lot about. Especially right now, voters are learning new information, they're confused, and they may not trust what they hear.
I'm concerned about the broad implications that this moment may have on the faith in our institutions. I'm a believer in American democracy and in our democratic institutions, and I worry about the broader possible impact of this election.
Mitchell: I'll add to that. I would say that the biggest threat to American democracy right now is declining trust in the electoral system specifically. People who have studied political science have watched the American public's trust in the government decline since the late sixties, but, for the first time, we are seeing a real distrust in the electoral system, and it's coming from a very political place.
There is a lot of partisan fighting right now, and a real attempt to rile people up — on one side about access, and on the other side about integrity. But, there is very little evidence that supports either narrative.
Can you explain how the election administration system collaborates between the federal, state, and local agencies?
Kathleen: Elections are a local enterprise. While the federal government has a duty to ensure equity, the federal government does not run the election. The states, through localities, run elections. Local offices run elections, and state officials support local offices.
Should we want to see uniformity across states? Are unique statewide barriers to voting something we need to accept?
Mitchell: We discuss this in our recent book, How We Vote: Innovation in American Elections. There is a lot of conversation right now about moving to a standardized federal election system, which would ensure uniformity across states. At the end of the book, we conclude that this is probably not a good idea. There is, of course, a real history of voter suppression for groups of people, particularly for African Americans. We think that the federal government needs to play a role in protecting citizens' right to vote and in ensuring equal access to the ballots. However, we think that moving to a uniform system across all of the states would hamper certain responsiveness to local conditions that election offices have now. Much of the positive change that we have seen in how elections are run has come from election offices responding to local conditions and local needs, and these needs and conditions aren't the same everywhere.
We also think that a move towards a federal election might actually make us less secure.
Our heterogeneous system makes it much harder to hack an election.
Another piece to consider is the cost of the transition. The cost associated with moving to a federal model would be really breathtaking. Right now the localities bear most of the expense of running elections, and it would be a breathtaking undertaking to move to a federal system like that.
Can you speak more to what the cost of moving to a unified, national system looks like?
Kathleen: I'll share two pieces in terms of what we learned about finance. One, every state's election laws are different. States use the same words to talk about very different processes, and different words to talk about exactly the same thing. For a nationalized process, verbage, of course, would all have to be leveled out — that is a seemingly low bar for nationalizing, well, anything. However, in the discussions we have had, right away, this is where the conversation melts. The response is, we have no money, why would we spend what little money we have on standardizing language?
Two, there isn't much in the election environment around the country that wouldn't be significantly improved with a significant infusion of resources. In the study that Mitchell's referring to, we looked at a sample of states and we compared what counties claim as their election budget, versus what the election office claims that their election budget is. That shows us what the share of the election office would be.
We found it to be somewhere around the range of 0.5%. That's not a lot of money. We're getting the election administration system that we pay for, and I think that's something that's well understood in the election community at the local level.
Zooming in on just Brooklyn — there were lots of people who received ballots that were addressed to someone else. That mailing process was outsourced to a private company. What does that do to trust in the system?
Mitchell: Election systems are complicated. While the local election office is in charge, very few state governments have the capacity in-house to do their own printing of all their ballots, particularly if you've got a large population. So they outsource to vendors. Across the country, there are over 8,000 different election offices creating multiple different kinds of ballots for all the different precincts. The idea that we're going to have a perfect election is not realistic. There are redundancies and checks put in place, but accidents happen.
My understanding of what happened in New York is that it was a vendor problem and when the problem was recognized, the vendor stepped in and said they would bear the cost of reprinting everything. Accidents do happen and bouncing back is a real thing. Election officials need to respond immediately and positively in order to assure the public they are not top of this.
Kathleen: This is a complex system that isn't fully automated. There's a significant amount of human activity, and room for error. When mistakes are made and when accidents happen, we can choose the sort of narrative to push. We can play into the idea of a larger conspiracy, but I think that has longer-term consequences. Sure, the errors are disturbing. But, hopefully, the narrative that things are being corrected is the louder voice. It is up to the people telling the stories.
Mitchell: On both sides of the political debate there is this narrative that there is this giant conspiracy, that there are people in the shadows pulling all of our strings. The people running these elections are your neighbors. Like Kathleen said earlier, this is a hyperlocal function. This isn't this giant conspiracy. Accidents happen. People need to reframe how they are understanding what's happening in elections.
We've said the word narrative a lot in this conversation — how can we better step away from ‘narrative’ and story & into facts.
Kathleen: I have to commend the media. Over the last six months, the narrative has shifted to focus on the mechanisms of election night and on the idea that we won't know the results on election night. This is an area that takes a long time to understand and I am heartened by the shifts in conversation that I have seen.
Mitchell:
The loss of local media has been critical because your local paper or your local reporter has been replaced with misinformation and disinformation on social media.
We have a real job to do in this country to build a higher level of information literacy in all people. That's obviously a bigger problem that exists outside of the contexts of elections.
Kathleen: We have started to think about how to recast the way we think about all of this, which is through the lens of civic responsibility. The act of going to vote was in person and seeing your neighbors in the school gym or the church basement was such a part of our culture, and it is clear that it's something that people still value. People are still voting in person. The engrained civic responsibility of that act hasn't gone away. That piece is still there.
I can say that local election officials go to work every day with the voter in mind. They are focused on voter confidence, voter trust, and serving the voter. That's why they do their jobs. These jobs are not easy to do. These jobs are not glamorous, they're hard, and the people who do these jobs, as Mitchell said, are part of your community. They only want to do the job the right way. They want voters to trust the work that they're doing. They want their communities to trust the work that they're doing. Their message is not a partisan message.
How do we bolster the functionality of local offices?
Mitchell: In addition to getting involved — volunteering as a poll worker, for example — it is important to support local initiatives to increase the amount of money we are spending on the electoral system. We spend so little money on it, and people just don't think about it very often. Instead of insisting that your local tax base be as low as possible, we need to recognize that just a little bit of money would make a real difference in what these offices have the capacity to do. It affects who they can hire, how many people they can hire, what kind of training and support they can give people, and what kind of equipment they can purchase. There are also real disparities across election offices. What a local office in a small town is capable of supporting versus a big city offers is really different. The willingness to say, raise my taxes just a little bit to support this function is pretty important.
How would additional funds and resources need to be spent to support integrity, access, and finality?
Kathleen: Amongst the election community, the understanding is that you can have accuracy and speed and low cost, but you can't have all three at the same time. You can have two. In order to have all three, you need more money and more resources. General operating money at the local level is what is needed.
Mitchell: You need resources to build professionalism and capacity. That is a long-term process. It's not money for a specific function, it's money for a broader infusion of the things that we need to build capacity and professionalism.
What is the best way to fund local election offices?
Kathleen: There are two ways to do this. One is to increase the local allocation of existing local resources. I think it's important to recognize we're in a place right now where state and local resources are really challenged and stretched. The tax base for states and for localities, in particular, has been really challenged by the pandemic. That's real. The cake is kind of baked for the next couple of years with limited, limited resources. And so one of the questions would be whether there is a role for federal funding here -- perhaps a dollar, a voter or $2 a voter allocated across the country as permanent operating fund funding for local election offices.
Arnold Schwarzenegger and USC were in the news recently for trying to distribute money into certain areas — most of which seemed to be in the South — where people were complaining about polling places closing down or there not being enough PPE. Do you see that as a positive thing?
Mitchell: I think there's more than just Schwartzenegger doing this. There are other groups that are doing this. This is not something that I have studied in-depth, but what I hear anecdotally is that the groups that are trying to do this have met some real roadblocks in the places where they've been trying to distribute money. There is distrust about the political motivations behind the private money, and there is a fear about whether the outside money wants to change local practices. That has led to some pushback about receiving the money. I think this raises a bigger question about how government should be run and how the government should be resourced and about the role of private philanthropy.
We have dealt with these questions as a country before. If you look at the beginning of the country, services for widows and orphans were private. We didn't have any social service function. But, at some point, we decided that it creates further inequity when this function is left to charitable giving societies. We came to the conclusion that it would be more equitable if the government were to provide those functions.
Kathleen: Nationally and historically, as a nation, we have had a deep suspicion of the role of private money. And I say all of this being convinced that we need resources.
As a citizen, I'm embarrassed that this would even be the kind of thing that jurisdictions would need to consider.
I've seen some of the grant applications, I have seen the amounts of money these offices are asking for. These are not extreme asks. Elections are the way we measure democracy. All of us, regardless of political affiliation, should be invested in making sure that they are done right. We should be willing to fund this at a level that it needs in order to run effectively.
The difference between the way the government has to provide a service and the way a nonprofit can choose to provide service is exactly that — one is a choice and one is an imperative. The widows and orphans fund can choose who is eligible. The government takes all comers. The voting office takes all comers. The thresholds for eligibility are very clear — we are obligated to serve everybody. So while I applaud efforts like USC's, it raises a lot of questions. And in fact, I would be quite surprised if they were allowed to take the money.
Kathleen: There is also a question of what can be addressed without actual cash. What other resources do we have? What about the resources in the judicial system? We've defined a national role in this arena to balance out the competing constitutional claims of the national government and the states in running elections. The role of the federal courts here is important. The absence of judicial enforcement of long-standing, well-understood practices that protect voter access and voter participation has to be acknowledged. That has been a missing piece since 2013.
What happened in 2013?
Kathleen: In 2013, in Shelby v. Holder, The US Supreme Court made a portion of the Voting Rights Act essentially null and void. Since 1965, there was a formula that had been used that required particular states, and sometimes counties, to receive a prior review and federal approval of changes in their voting laws and voting practices. Things like redistricting and early voting periods had to be presented to the federal government. The Department of Justice would look at the changes states were making and decide if the changes were okay or not okay, if they were discriminatory or not discriminatory.
All change away from democracy seems to happen slowly, then all at once. I think Americans suffer from an inability to imagine that the version of democracy we grew up with could change drastically or disappear entirely.
Mitchell: Yeah. The other thing we talk about is how the parties are gearing up for this, the bevy of lawyers on both sides for court challenges.
We politicize the practice so much that election results will be the results of courts, as opposed to the voice of the people.
That’s something we should think more about — whether we really want to do that.
Kathleen: The default to litigation feeds mistrust. If everything has gone so far to hell that only the courts can resolve this, it feeds into cynicism on the part of voters. Voters should feel that they have some agency. I dread this election going to the courts, not because of any particular decision, but because of the impact that may have on the perspectives of institutions as a whole.
Mitchell: It changes the quality of our democracy. Imagine the courts become the final arbiter of all actions that are important at the federal level. That has to lead to a decrease in political ethicacy at the individual level. That has to lead to more voter apathy. That can't be good for American democracy.
Kathleen: No, it's on the path to wholesale disengagement. It will become self-evident that it doesn't matter how I participate because a court will decide anyway. Following the crazy train down the track, let's just not have elections — other countries don't, let's just not have elections. Let's just ask the courts to decide. In fact, let's not even ask them, they'll just tell us. It is disheartening to think that only 20 years ago it was almost unthinkable that the Supreme Court would become involved in the results of a state election process. Bush V Gore changed everything.
Are you hopeful moving forward?
Kathleen: In the profession, we are known as the optimists and the people who aren’t political hysterics. We are very much on the side of wanting things to work.
We think local elections are a good government story — a good government story every time. We see local elections surmount amazing challenges. We conducted local elections in New York City on 9/11, we began the process and then rescheduled them for another day. We conducted elections in Texas and Louisiana after Hurricane Katrina, when hundreds of thousands of people were relocated or dislocated. It comes down to the people who run the elections. They know how to do hard work, under really challenging conditions, with a smile. Their message is not a political message. There's not a political way to vote, there's only participating in democracy.
interviews
Systems Built on Good Intentions are the Most Dangerous: Pt. 1
by Emma Ketteringham on how ACS surveils and controls pop
August 19, 2020
This interview with Emma Ketteringham, managing director of the family defense practice at the Bronx Defenders, was conducted and condensed by franknews. The second half of this conversation on the child welfare system can be found here.
Emma | The Bronx Defenders is a public defense nonprofit located in the South Bronx. It was founded in 1997 by a group of public defenders who were committed to really redefining how people in criminal legal proceedings were represented. They were some of the thought leaders in a practice called holistic defense.
Is it affecting their employment? Is it affecting their housing? It also asks, why was there this contact with the criminal legal system in the first place? Is there a way to address whatever drove a person into the system?
frank | How did you get involved with the family practice specifically?
When I started, I began to talk to my clients about the impact contact with the criminal system had affected their families and I learned some pretty harrowing facts. Even if I was able to resolve someone’s criminal case favorably, without a criminal record or without jail time, I would learn that as a result of that arrest, the family had come to the attention of the so-called child protection system - and I say so-called because I think whether they actually protect children deserves interrogation, but just to use a more recognizable title. Every state has such an agency charged with investigating families for abuse or neglect of their children. In New York City it's the Administration for Children’s Services or ACS. I began to learn that the arrest, although that had been resolved quickly, had ignited an absolute nightmare in family court with ACS. It had led to intrusive surveillance of their family and for many, the removal of their children from their care. So I started representing my clients in family court.
We found a broken system. We found parents there who were not being advised of their rights or given the necessary information to get their children back. We found children who were languishing in foster care unnecessarily as a result. The city itself was looking at family courts at the same time and finding some of the same things. In 2007, New York City created family defense providers - institutional public defender offices to represent parents in family court proceedings. The Bronx Defenders then expanded to also represent parents in these cases, and since then I have been involved in the practice.
How many people are you working with at one time?
Today we have a practice that consists of about 50 lawyers, and about 25 social workers and parent advocates. One key facet of holistic defense is that our clients don't just get a lawyer assigned to their case. They also work with a parent advocate or a social worker who does a lot of the advocacy and work with the family outside of the court system. We work in those holistic teams and we represent about 2,300 parents at any given time. We pick up about a thousand new parents each year - there are cases that resolve and cases that come in.
It is up to the states whether or not you have the right to a lawyer when the custody of your children is at stake. Most states do have that right, but New York City is really one of the rare places that has an institutional holistic model of representation for parents. The implementation of institutional holistic defense providers has had an incredible impact. Children are spending fewer months in foster care in the cases where we represent the parents, as compared to cases that don't have us as their lawyers.
Can you help me understand how ACS works?
Sure. So, a call is made to the state central registry to report a family for child abuse and neglect. You have probably heard the term “mandated reporter” - the folks who, by law, have to report suspected abuse or maltreatment - doctors, teachers, social workers, nurses. But you don't have to be a mandated reporter to call in a report. In New York City, neighbors can call and report, exes can call and report, reports can even be anonymous. Then, if the report is accepted by the state central registry, it is dispatched to the child protective agency in the area where you live. In New York City, that's ACS. They are then mandated to go out and investigate.
ACS does not get to pick and choose which families they investigate. If they get a report that was accepted by the SCR, they must go out and investigate. Once they go out and investigate, however, they have a range of responses and they have very broad discretion. Investigations are very intrusive.
Essentially, these cases begin with a knock on your door at any time of day or night. The ACS case planner can go accompanied by a police officer, they don't always go accompanied by a police officer. They gain entry to the home and then they start their investigation. They do not have to disclose to the parent who made the report. In fact, some reports can be anonymously made to ACS. They do an extensive investigation, which varies a bit depending on what the allegations are, but those investigations will involve speaking to the parent, doing a house inspection, asking to see all the rooms of the house, asking to see if there's sufficient food in the cupboards and in the refrigerator - and that's regardless of what the allegations are, an analysis of food. Then they will also ask to speak with the children, and they will speak to the children alone and separate from the parents. The people speaking to children are not social workers, because they are not required to be.
And the investigation can also include body checks. And the way it's written about in ACS training manuals is, "observe the parts of the body that are normally covered by clothes." So these can be extensively intrusive investigations.
What happens next? What happens if they find evidence of abuse or neglect?
They can do one of four things.
One, they can find no evidence and close the case and say, I'm very sorry. I just completely traumatized your family, but now I'm going to close the case. That would mean that you're not listed anywhere on any sort of state registry as a child abuser, you are not brought to court, and you do not have to engage in services.
The second thing that they could do is say there's some evidence here of abuse or neglect and we do have “concerns” - “concerns” is a big word in the family surveillance system. And then they might say, we'd like to send you to treatment. Maybe we'd like you to go to a drug treatment program. Maybe we'd like to connect you with mental health services, but we're not going to file a case against you in court. We would just like to surveil you outside of court - they say “supervise” - but basically what they're saying is, if you do what we say, this won't get worse. And many parents opt for that. They comply because they're so fearful of what might come if they don't. And so often all this surveillance and additional services just burdens families and utterly fails to actually strengthen them.
The third thing that ACS could do is say, we're not going to take your children away from you, but we are going to file a case against you in court, and that's because we think we need an extra layer of supervision over your family. This involves a more intense level of surveillance, and if you don't do what the agency says, the court is there to enforce the agency demands by either ordering you to do it or taking your children away from you if you fail to do it.
And then finally, the most powerful and harshest thing that can happen is that ACS can remove your children from your care right then and there when they investigate. Every child protective agency in every state has what are called emergency child removal powers. They can take your children out of your home, place them with strangers if you have no relative to take them, and then give you a date to appear in court.
And remember, the vast majority of parents don't have access to a lawyer until they're brought to court. People who hear about this process for the first time and perhaps have never had to deal with this agency themselves will say, "Oh my gosh, I would call a lawyer right away." And it's like, right, because you can afford to, and you might have one that you know to call. But if you have to rely on the system to assign you a lawyer, because you can't afford to retain one privately, you're not going to get that lawyer until your first appearance in court.
One of the major innovations that we made in our practice over the last couple of years was to create a hotline so that parents could call us at that moment. I think this has been the most effective in changing the trajectory for these families. When I first started doing this work, I was meeting parents whose children had been taken and they hadn't seen them in weeks. Now, when they file against you in court, if you're assigned to our office, the first thing we are going to do is figure out if we can ask for a hearing to get the children either immediately returned or returned soon. I think that's where we have had the most impact – we litigate those hearings often and we often win them.
Most people assume that if a child has been taken away by the government from their parents, that they must be experiencing incredible abuse at the hand of that parent. But what we have found is that about 24% of children who are taken, go right back home once the judge reviews that decision and almost all children go home eventually. And that's because that is when the parent finally has a lawyer and the case is heard by a judge and the parent can put forth their side of the story.
I wonder what sorts of things they look for when they decide to remove children - and how poverty plays a role in determinants.
I think that when we look at drugs, we can see what the system is truly about. We know that if all the children were taken away from all the parents who use drugs, there'd be a lot more white, wealthy children living in the foster system than there are right now. So there's something else going on here than keeping children safe.
When it comes to who is investigated and for what reasons, what we see is that the vast majority of the parents of children in the foster system have not abused or abandoned their children. They are often not even charged with abusing or abandoning their children.
In New York, it's defined as the failure to provide your child with the minimum degree of care. Well, what's the minimum degree of care? To one judge, strict parenting with a spanking does not fall beneath the minimum degree of care. To another judge, it might. To one judge, using marijuana, might not fall beneath the minimum degree of care. To another judge, that might. The problem is that it is such a subjective standard. It's not like the criminal legal system where you have crimes that are defined by a penal code - these child protective cases leave much more room for discretion. It often comes down to the subjective child-rearing views of the observer - first the caseworker, then the prosecuting attorney, and then the judge. That's one problem.
The cases we see are mostly about food insecurity, housing insecurity, not having safe, and adequate childcare- all the things that we've decided, as a country, to not provide to struggling families. This reflects our country’s unwillingness to provide true support to struggling families- the support they need to raise healthy children and to rectify past and present racism in how certain families have been supported while others have not.
Right now, our country is calling to defund the police. That is because we understand how they are hurting and harming people who live in poor communities and who are predominantly Black and brown. The so-called child protection system can be understood as delivering the same harm. The same communities that are overly surveilled by the police, that experience higher rates of arrest, are the same communities that experience disproportionately concentrated surveillance by the so-called child protective system and experience harmful family separation at the hand of the government.
You can take maps of neighborhoods and where you will see higher arrest rates, you will also see greater child protective case concentration.
Both systems are used to surveil and control classes of people.
Do you think there's part of ACS operating in good faith?
I think that ACS is full of people with very good intentions.
What is the disconnect between ACS’s stated mission and what happens in practice?
When we start to find answers to why we have a system of mass incarceration, we uncover the same reasons that we have a foster system that looks the way it does. To say "Oh, but there are children who are abused. So this system is necessary” is the same thing as saying that, well, there are folks who commit crimes, so the industrial prison complex is necessary. I don't think that's true. I think we can reimagine a completely different response to families that are struggling with caring for their children. And we have never done that. While I think that ACS and other child protective systems across the country might be made up of many highly motivated people to do right by children, they are still playing a role in a system that is the product of racism in this country. It is a system that keeps certain populations controlled and down.
The reason why I think people have a much harder time understanding this system that way is because they don't really understand exactly how it operates. We're waking up to the fact that putting someone in prison for the third time, caught with marijuana in their pocket, is not the response of a civilized community. Well, why then is separating children from their mother because she needs treatment for a mental health issue imaginable? It would be unimaginable for families of privilege to be separated from their children and to have that relationship legally severed forever because the parents are experiencing an issue.
It is unimaginable. I keep coming back, thematically, to paternalism, and this weird game of morality – which immorally devastates children in this case.
And then you have it left up to individual subjective discretion to determine whether the situation before them falls within it, that leaves an incredible amount of room for one's own bias, and one's own prejudice to seep into those decisions.
The kinds of allegations they bring against, predominantly mothers, mind you, are infused with judgment, and infused with ideas of what is suitable and what is not. One of the challenges that our lawyers, social workers, and advocates have while doing these cases is trying to address that before a judge - like, are you really raising the fact that she uses marijuana? We know that the parents in these other higher-income neighborhoods are also using marijuana and no one would dream of knocking on their door and dragging their child out of the house. It just would not happen. So how do you justify this as to why?
We know that abuse and neglect are equally likely in all income brackets, among all races. Yet this system has profound race and income disproportionality issues. Part of the reason for it is that our country has always equated being poor with individual failure or personal deficit, rather than the failure of our government to support all people equally.
Poverty has always been viewed as an individual fault. That gets us to another piece of the system that is so irrational when you actually interrogate it. You meet a family and you learn that the mother doesn't have childcare, so she's going out to her back to work welfare appointments, and leaving her children home alone in the apartment. And she's doing that because if she doesn't make those appointments, she will lose her benefits, which then would hurt her entire family. So she's taking a calculated risk. The response then to her is not to get her the childcare, it is to send her to a parenting class, to teach her not to leave her children at home, which guess what? I think she knew that. Second of all, she'll probably end up, because her children have been removed from her, losing the very benefits she was working so hard to preserve because now her household has been reduced, so she no longer has the children in her care. And then we then give the money to the foster parent so that the foster parent has money for childcare. That's why it is a punitive system, even though it claims not to be. It claims to be a therapeutic system. It claims to be a system that's helping families take care of their children. But how? How is that response therapeutic? The trauma to those children who then have to go live with a stranger, maybe transfer out of their schools, maybe only see their mother once a week at a foster care agency in a room under the watchful eye of a case planner, where she can't naturally parent them and love them, that digs a wound that never heals.
And yet we're talking about a situation where someone needed a babysitter. They need to believe there's something so fundamentally flawed about this woman for not having the resources for childcare that that's the response. And it's so infused throughout the entire system from case planner right up to judge that it's hard to understand quite frankly, how it still exists.