Article

Beyond “big nation/big names”; judicial elections and many other pivotal offices
Strategic use, and so preservation of, fundamental freedoms
Correct knowledge, electoral landscapes and self-government

To truly understand the scale of the “failure to keep it” it’s necessary to focus on the opportunities we miss and the mistakes we continually make.

Misdiagnosis’ and wasted resources abound as we see our general population accept, and elite circles of advocacy time and again propound, conventional wisdom(s) not subject to much critical analysis.

Despite having advantages born from centuries of history, experience, and the reflection of great minds devoted to these questions, we seem to make no serious attempt to methodically search for lessons; particularly those that might identify the crucial attributes necessary to any genuine public solution.

For example, can any successful change be contemplated absent a people’s express grant or deny power over elected politicians; or a media component capable of channeling that reality?

Such absences in any remedy being advocated needs to be identified and explained before allowing it to be considered worthy of any support. However, with no genuine hub of civic enterprise in existence, it is not possible to generate traction on such discussion and analysis. Accordingly, the deficiencies consistently go unchallenged.

As a result, naturally, we are constantly offered the same failed options - barely reheated. Mostly grounded in flawed concepts of protest, laws, lawsuits, leadership from above, the slicing and dicing of mass methodologies among other usual suspects; a lot of damage is done in the non-process.

An example of the continuing epic failure http://justice4michigan.org/files/hfp_nestle_case.pdf and missed opportunity can be seen here with a simple (and simplified) illustration; one of countless cases, but a very telling one:

In 2001 a long and winding case began wending its way through the Michigan courts that involved Swiss food giant Nestlé and their drawing fresh water from the Great Lakes region for the purposes of bottling and reselling that natural resource.

Nestle, typically, promising some jobs would be created, was typically welcomed with open arms by then-Michigan Gov. John Engler, who allowed the company to open up a plant for a licensing fee of less than $100 per year and offered millions in tax breaks to boot.

In the fall of 2001 the group Michigan Citizens for Water Conservation (MCWC) and four individual local residents filed suit in Mecosta County Circuit Court seeking to stop this as “not a legally defined” “reasonable use” of water violating state and federal regulations.

At the trial level the judge hearing the case ruled in favor of the plaintiffs. He found that Nestlé’s pumping “would adversely affect the water resources that the plaintiffs fought to protect and that it would harm the ecosystems that those resources were a part of”. As a result, Nestlé was ordered to stop pumping water from the aquifer.

Nestlé however appealed the trial court’s decision.

Many years, and many courts were involved but as is often the case these days, when heard by the Michigan Supreme Court a tortured decision was rendered that narrowly decided the case on standing.

The only issue that the Supreme Court considered was whether Nestlé’s actions were appropriately challenged in the first place i.e. if the plaintiffs had “standing” to bring a claim under MEPA.

This made the substance of the case not about whether Nestlé should or should not pump water from the aquifer. “It made it about whether, if someone believes this action to be harmful, they are able do something about it. If the plaintiffs have “standing,” then they have access to the courts to challenge the action that they believe is harmful. If the plaintiffs do not have standing, then they cannot legally challenge that action.

With its decision, the Supreme Court’s majority changed the Michigan Environmental Protection Act at its core. It changed the way that thirty years of case law interpreted the Act and took away the right of a citizen to protect the state’s natural resources.”

The verdict was Nestlé could continue and even expand its operations in violation of previous agreements. Finally in 2009 the case was settled.

Throughout, the response of the people of Michigan was typical; Extensive research revealed no effort by citizens or citizen groups to organize a response around their electoral powers. lawsuits were filed, protest signs were held, boycotts threatened, and blame pointed; then everyone went home.

Of course what did endure was the litigation and interestingly, serious water related problems have persisted in the state; as they have in many parts of the country.

Poor, victimized citizens, right? Well, seemingly, what was totally ignored by the people, media, and the advocacy-activists was that Supreme Court justices of the state of Michigan must go through the people before their be-robed authority can have consequence.

The people of Michigan have the right to vote for their Supreme Court judges; as well as many other lower court judges who had been hearing this case; not to mention the governor of the state et al!

The most powerful citizenry on the planet, the people of the United States, in most states, can reach out and “touch” their judges through our very democratic electoral processes; JUDGES; who decide about our water; and almost everything else.

Judicial elections are a unique aspect of American republican-democracy and, as we can see from this example, the decisions of courts make law no less than do legislatures with their legislation or executives with their executive orders.

Elections of such granular offices are a big part of our ideal of self-government and have been marveled at by many; including Alexis de Tocqueville in his classic work “democracy in America”. With over 3,000 counties in the United States it is difficult to know with certainty how many judges stand for office nationally, but the number is in the many, many thousands. Trial, Appellate and Supreme Court justices must face the voters - from the township, municipal and county, right up to the state level.

However, no elected office represents the hodgepodge http://judicialselection.com/uploads/documents/Berkson_1196091951709.pdf of the American electoral system better than this one as the states can approach these elections in many different ways. Some judges are elected through the two-tier system of nomination by direct primary and general election. In other cases the nominations are made by conventions (which then may be subject to a primary) with the candidates then facing the electorate in a general election. In some cases these races are conducted with party labels attached to the candidates (partisan) and other cases they are not (non- partisan).

There are also retention elections https://www.americanbar.org/content/dam/aba/migrated/leadership/fact_sheet.authcheckdam.pdf where the judge “stands before” the people and a simple vote will either affirm or remove them with a yes or no tallied. In some cases there are lifetime appointments - or reappointment - as well.

In Michigan there is a ‘hybrid’ approach Wheat -

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2172007 that is unusual (only Ohio does it this way). For Michigan’s Supreme Court, https://ballotpedia.org/Judicial_selection_in_Michigan the political parties will nominate the candidate in a convention who will then stand for office in the general election. However, at the district level there are primaries (non-partisan). That fact may well have made a difference in the way the district court judge ruled in the Nestle case as opposed to the Supreme Court decision as proximity had its effect.

Whatever difficulties the varying methods of the hodgepodge may present, what should not be lost is the power Americans have to regulate their lawmaking industry with their vote.

Given the incredible potential this authority offers the American to control their destiny it should come as no surprise that judicial elections have become very controversial, and in many cases are under attack.

Thus, arguments are invented and distributed by the complex and their network:

Partisan races might attract more money – and politics - than those that are run without a party label and that is one aspect of the controversy.
The money such elections attract; https://www.brennancenter.org/sites/default/files/publications/New%20Politics%20of%20Judicial%20Elections%202012.pdf regardless of the electoral approach is another
Judges and judicial decisions - the law – cannot be made subject to our petty and corrupt electoral practices is yet another; and quite humorous one
There is also much complaint that judicial elections are simply below the radar of voters https://www.thenation.com/article/why-judicial-elections-are-bad-thing/ who cannot make considered decisions about such offices; therefore they should not have that right.

Though some of these arguments point to legitimate issues, any advocacy for ending popular judicial elections should be looked at with very great skepticism indeed. The problems they identify are issues of citizenship and the lack of a hub: proximity, information/media, organization and fellowship; the same ones that threaten the entirety of our electoral and constitutional system.

These problems get solved under the roof of the Citizens Access Network.

Moreover, the dysfunctions the Nestle case typifies transcends weak advocacy or corporate greed. They are essentially problems of great imbalances of power. The decentralized architecture of the country (the hodgepodge) cannot help but create opportunities for the motivated and, as this case shows, these imbalances very much play out in the courts and cannot be neglected.

For example, citizens at the local level of a township or municipality may self-govern through elections, representation, ballot initiatives etc., but, find that the laws and regulations at the state or federal level favor special interests and circumvent their efforts to protect their rights. Given the specificity of a law, in some cases a judges hands may be tied while in other, less specific instances, they will “interpret” according to power and allegiance. Either way, in the absence of a visible, powerful, coherent citizenry an uphill battle would be the best one could hope for.

This clearly demonstrates that the architecture of the nation can only be made to work based on methods that understand the relationship of the various levels of government to each other; and our relationship to all of them. The focus on one at the expense of the other is a certain dead-end; a common mistake of our public sphere and concerned public.

This is why the mapping and connecting of local districts and offices to the state and federal level is essential. Making those connections allows correct knowledge and citizenship first principles to be easily attained, as:

Very important but much less easily observable offices and officeholders are documented
Their record is on the record
The immediacy of a visible constituency is present
The knowledge sharing of that constituency makes known pivotal issues (and positions) that might otherwise have flown under the radar
The electoral landscape awaits those who cannot explain their reasoning; and those who can

Elected officials, whether they are executives, representatives, judges, what have you, are subject to the people through powerful electoral processes. But, to meet the brilliant organization and near limitless resources of vested interests - which use this architecture for their ends - these processes must be understood and coordinated through the network advocated for here.

With its own propriety media that will be quite difficult to spin, the challenge is much more than met:

Now, where necessary laws can be changed
Now, bad laws will not be written in the first place
Now judicial interpretation will be made with the coherent will of the people known and there will be no ability to hide behind tortured decisions that are narrow of law and mind

This is something that Americans concerned with other inequities might like to keep in mind; say those who believe that the United States has far too many of its citizens imprisoned, and that a for-profit industry devoted to incarcerating them is un-American.

These concerned citizens might want to ask why a lawsuit would be filed to protest such behavior when we can select and elect the legislators that pass, and the governors that sign the laws that make this possible. They might also want to inquire as to why these are the favored, default actions of thought leaders and activists who seem to forget that we can also vote for the attorney generals and many prosecutors who bring these cases, and (of course) the judges who hear them, and, in over 3000 counties, the law enforcement officials that enforce them. https://en.wikipedia.org/wiki/Sheriffs_in_the_United_States

Though the details of the process that will elect such officials will vary from state to state, the important mechanics mainly don’t. Typically, ballot access is open to all who qualify; direct nominating authority mostly belongs to the people, and can be managed or changed where it doesn’t. And finally, a general election will decide the matter. With a proper understanding and approach, these elements can combine and help us to reimagine and reinvent our idea of elections; their purpose and results.

From Election Day to an Electoral Landscape

Organization - cost-free, citizen-supporters assist those who qualify to meet ballot access/ballot petition requirements.
- An opportunity to create unfiltered media-learning and community throughout that crucial process

Preparation - for the nominating-primary election or caucus
- An opportunity to create unfiltered media-learning and community derived from that broad electoral competition

Planning - for the general election
- An opportunity to create unfiltered media-learning now focused on the principled differences of the truly chosen

However, if we continue as we have our elected constitutional agents will act with impunity as it suits them, and the complex behind them.

Confident that they (all) operate well below the radar of the population and are not likely to suffer punishment - for even the most outrageous outcomes - this will continue; or bring the predictable end such circumstances repeatedly do.

But, perhaps, it doesn’t have to come to that.

Under the reality of an “electoral landscape” these things would simply never happen in the first place; the watchful eye of the visible constituency would ensure that. Further, judges - and officials at whatever level with whatever responsibilities - would and could not act as they did here and live (politically) to tell the tale; it would not be possible.

Therefore, it is certain this would not happen a second time and so such behavior would cease to define relations between those who govern and are governed. An electoral landscape scenario will necessarily and unquestionably produce an entirely new model of relations within our political system and with that an entirely new kind of elected official.

But, if no considered action is taken and the status quo remains; if the vacant - but perhaps emotionally satisfying - reactions of victimhood are preferred to the simple, powerful recourse available to all Americans, it’ll be clear where the blame should point.