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PaperclipPerfector  11mo ago (text post)   28516 thread views

Culture War Roundup for the week of May 27, 2024

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Presidential Ballot Access: Ohio Edition

As of today, a state is currently set to only have one of the two major parties candidates for President on the ballot, but it's not the one you might expect.

Ohio law requires that presidential candidates be certified – that is, the state must be notified that presidential candidates have been officially nominated – 90 days before the general election in order to get on the ballot. That is the earliest deadline of any state.

But the Democratic National Convention that will formally nominate Biden won’t open until nearly two weeks after Ohio’s Aug. 7 deadline. The Republican National Convention will wrap up nearly three weeks before the deadline, so Donald Trump won’t have a problem getting on the ballot...

Ohio laws generally take effect 90 days after passage. So a change to the deadline had to pass by May 9, but the Legislature wound up doing nothing.

To be fair, this law has existed since 2010, albeit with a couple past temporary exceptions (probably a compromise number downstream of a 2006 court case over a third-party candidate 120-day deadline; see references to Blackwell and progeny here). and the Ohio legislature (majority Republican) has done nothing less out of explicit desire to screw over democracy and more because the Ohio GOP's House and Senate are fighting each other, and a GOP interest in getting some sort of Red Tribe value out of it (the closest bill, HB114, also bans some foreign contributions to ballot initiatives, for about the reasons you'd expect). DeWine, the (Republican) governor, is pressing pretty hard to find some sort of solution, whether that ends up an emergency legislative fix, hoping the courts can and will step in, or a more dubious executive branch intervention. And it's not like there's any plausible situation where Ohio would be the turning point for the 2024 election.

((There's some theories that Ohio Dems are trying to bolster Sherrod Brown's chances, though I don't think that's very likely or even particularly coherent.))

To be less charitable, nice motive, still excluding a major political party from the ballot. It's not going to be doing any wonders for society, and as we get closer to the election, the available options, whether taken or merely proposed, will only make the mess clearer. The current planned resolution looks to be a 'virtual Democratic National Convention call', officially nominating Biden before the actual Chicago disaster convention. Hopefully, that's enough of an excuse for the Ohio legislative special session to also clean things up, but more likely the virtual call gets counted as close enough for Ohio law (less optimistically, it leaves no one able to challenge it). But the whole thing has just been a parade of one group after another absolutely certain that someone else will fix the problem that they're rolling directly into, and 'it wasn't my fault' is an awful epitaph.

Fauci et All Foiling FOIA

One email refers to a “private gmail” supposedly used by Fauci. Morens also referred others to a “secret back channel” for communicating about certain issues. He also frequently directed others to message him on his personal Gmail account to avoid FOIA requests. Morens also noted he had “learned from our foia lady here how to make emails disappear after I am foia’d.” That individual, who he identified as Marg Moore, “also hates FOIAs.”

The emails also reveal Morens made a series of crude comments about women, female coworkers and his drinking habits which indicate he “is not qualified to hold a position of public trust,” the committee wrote. Morens testified to the subcommittee Wednesday that he didn't remember if he used a personal email to conduct government business, but conceded it was "wrong" if he did so.

None of this is particularly surprising, from a cynic's perspective -- government employees fucking with FOIA requirements is a day ending in Y. There's a steelman where certain scientists involved in climate change research were getting spammed with so many duplicative FOIA requests that it edged on harassment, though given neither Morens nor Fauci every worked in environmental stuff that that's leafspring-grade steel.

There's no serious chance of serious punishment, here: Morens was already investigated and found not guilty of anything that the NIH cared about, and if anyone has problems with him lying to Congress, well, there's some fun legal realism questions about whether the law is the statute or the enforcement, but the enforcement still comes from one place.

On the other hand, it does seem enough to have pissed off no small number of partisans aligned to that One Place, if, cynically, more in the sense that Morens et all got caught. HHS is at least moving against EcoHealth Alliance. If you were to ask what one would consider a good sign, well, there's certainly end results that could point to people taking this seriously.

Title VII Religious Freedom in California

Another day, another VanDyke dissent:

In its stubborn insistence on ruling against Chief Hittle, the panel has twisted the record into knots and badly misstated Title VII law. Its decision (1) abdicates its responsibility to read the record in the light most favorable to Hittle at the summary judgment stage; (2) allows employers to escape liability for repeating discriminatory remarks simply by hiding behind those who say them first; and (3) mangles Title VII’s “motivating factor” analysis.

Perhaps most glaringly, its original opinion also incorrectly heightened the showing a plaintiff is required to make to demonstrate disparate treatment. In the panel’s view, Hittle bore the burden of showing that the City’s discriminatory conduct was “motivated by religious hostility,” notwithstanding the Supreme Court’s admonition that such a plaintiff need only show he was “intentionally treat[ed] … worse because of” a protected characteristic, Bostock v. Clayton County.

Recognizing at least this last mistake, the panel’s amended opinion retires its former use of the word “hostility,” replacing it with the more accurate (but less specific) “discriminatory animus.” Not only do those changes not fully fix the original opinion’s legal errors, but they also put the panel, which apparently remains as determined as ever to rule against Hittle, in a pickle.

Notwithstanding its many other errors, the original opinion correctly acknowledged that the “gravamen” of the “notice terminating Hittle was the religious nature of the leadership event.” But if attendance at a religious event was the “gravamen” of the firing and Hittle need only show that he was “intentionally treat[ed] … worse because of” religion, Bostock, 590 U.S. at 658, it would seem the panel would have no choice but to reverse its previous decision in favor of the City.

But it won’t.

We've had discussions here about a more expansive framework for discrimination, but this seems the punchline. Title VII has prohibited religious discrimination in hiring and firing of employees for sixty years, and while the exact borders of the doctrine have ebbed and flowed from one jurisdiction to the next, or as courts have pushed at the very edges, trying to bring them to these style of cases has been an expensive shitshow, where even the lucky winners spend decades for minimal defenses. Even defining this class of cases is a mess: I want to say discrimination against the 'majority' (but anti-woman discrimination is clearly covered!), or 'non-subaltern' (but trite agnosticism is protected, he says as a trite agnostic), rather than just Groups Progressives Want To Discriminate Against, and that's kinda the problem.

However, that punchline's also a bit of a repeat: not just that VanDyke is writing his dissent at an en banc appeal that had no chance of victory, or that the original opinion had to be edited to not be hilariously wrong, but that Kennedy went to and was decided by SCOTUS almost a year before the original appeal decision came from the 9th Circuit. The facts in Hittle are different, sure -- Stockton alleges, not very credibly, that they 'really' fired Hittle for endorsing a consulting business and for not disclosing closeness to a union president -- but the courts were (supposedly) not yet deciding facts, but merely the motion for summary judgement.

Instead of motions for summary judgement focusing on questions of law, various balancing tests and excuses can fall into play where judges don't like the plaintiff's perspective. Instead of protecting Hittle against employers that were outraged by his place in a complaint-named 'Christian coalition', the law in California now holds that there is a "legitimate concern that the City could violate constitutional prohibitions and face liability if it is seen to engage in favoritism with certain employees because they happen to be members of a particular religion." Sure, that anti-endorsement test had been explicitly rejected contemporaneously to and previously by SCOTUS, but SCOTUS "can't catch 'em all", and increasingly doesn't seem interested in trying.

That failure mode isn't and wasn't inevitable: despite my expectations, Fulton hasn't come back to the courts (yet). But it's a problem that haunts any attempt at legislative or executive branch 'fixes'.

((At a more concrete level, Hittle was fired in October 2011, at a time where he was nearing age 50. The unusual length of the court case here reflects Stockton's bankruptcy rather than overt malfeasance specific to him, but it still means he's in his mid-60s today. Even should, SCOTUS hear this case, overturn it, remand with direct instructions, no further interlocutory appeals or weirdness occur, and the trial occur speedily, he might see a court room on the facts before he self-moots by old age, but probably not before he sees his 70th birthday.))

An Appeal to Heaven

Compare February and to May. Diff, context. Also see here, and here.

The Cloud is Someone Else's (Broken) Computer

Unisuper is an Australian superannuation fund, which is close enough to a psuedo-mandatory version of American retirement funds. AshLael might know the more specific differences. It has 600k members, about one in fifty Australians, with over 125 billion AUD (~88 billion USD) funds under management. It also fell off the internet on May 5th, only restoring full functionality May 20th, allegedly as a result of a 'one-in-a-million' bug in Google Cloud services dropping both the main Unisuper database and all Google Cloud backups.

UniSuper had duplication in two geographies as a protection against outages and loss. However, when the deletion of UniSuper’s Private Cloud subscription occurred, it caused deletion across both of these geographies.

Restoring UniSuper’s Private Cloud instance has called for an incredible amount of focus, effort, and partnership between our teams to enable an extensive recovery of all the core systems. The dedication and collaboration between UniSuper and Google Cloud has led to an extensive recovery of our Private Cloud which includes hundreds of virtual machines, databases and applications.

UniSuper had backups in place with an additional service provider. These backups have minimised data loss, and significantly improved the ability of UniSuper and Google Cloud to complete the restoration.

This is a little weird, and not just for having an actual benefit from multicloud. Google Cloud Platform doesn't have the best reputation, but 'keeping multiple copies of long-standing data' is one of those things cloud providers are supposed to excel at, and having first disclosure come through the client rather than the cloud provider is a decision that Google Cloud didn't have to make. There are even arguments, a la Patio11-style, that part of what a client Unisuper's size is buying from a cloud provider is to have a name to fall on a sword. This has lead to no small number of people reading tea leaves to conclude that the fault 'really' reflected an error by Unisuper (or a separate smaller contractor) making a configuration mistake. Unisuper was migrating from VMWare, which has its own mess, and is exactly the sort of situation you would see greater vulnerability to client developer error. That still wouldn't be great for Google, since most cloud providers at that scale claim a lot of safety checks and emergency backups, but I could understand if they just failed to idiot-proof every service.

Nope :

During the initial deployment of a Google Cloud VMware Engine (GCVE) Private Cloud for the customer using an internal tool, there was an inadvertent misconfiguration of the GCVE service by Google operators due to leaving a parameter blank. This had the unintended and then unknown consequence of defaulting the customer’s GCVE Private Cloud to a fixed term, with automatic deletion at the end of that period. The incident trigger and the downstream system behavior have both been corrected to ensure that this cannot happen again.

We probably won't get a full breakdown until the Aussie regulatory agency finishes an investigation (if then), so there may always be more to the story, and a lot of fun questions about what, if any, data was out-of-date or lost from the backup. But this is pretty damning for Google, as things stand.

On one hand, this probably is a one-in-a-million bug, and readily closed. On the other hand, as anyone with network engineering or statistics or X-Com background can tell you, one-in-a-million means a lot less than the naive expectation, and Google Cloud Platform has an estimated just under a half-million business customers, and this is an embarrassing bug.

Does that mean that they're got it out of their system for another million customers? Or that this is just the first time it happened and was big enough a deal to make the news?

((Okay, the real answer is I'm being pedantic and reading too much out of a turn of phrase.))

The bigger problem is that Cloud has long been sold as The Professionals Doing It Right. That was always a little more true at the margins than the center. As bad as rando small businesses trying to maintain a Gitlab instance can get (and it can get bad: even by web software standards, it's a masochist's tool), no small number of seemingly-legit smaller cloud providers have gone belly up, wildly revised their offerings, or just plain disappeared. It's quite possible that Unisuper moved to Google Cloud in part because the Broadcom buyout of VMWare (only finalized in December 2023, but after 18 months of regulatory review) raised concerns that they'd start lopping down product offerings.

(But to move to Google?)

It's increasingly tenuous, here, though. Unisuper are not fresh college grads confused by the difference between a RAID and a backup, but a massive company that maintains many sites as a matter of course. Google is one of the Big Three when it comes to cloud provisioning. One can imagine counterfactuals where a self-run or classically-hosted Unisuper herped the derp, but the factual here makes them look like the competent ones. And that's not alone.

Which would be one thing if Unisuper were the only people pressed into cloud services.

How's everyone feel about OneDrive integration in Windows, or Google and Apple cloud in their phones?

Ballot Access - I said this back when Trump was potentially gonna get kicked off Colorado ballots. Neither of the two major parties will be off of a state ballot in any state. It does not matter what rules or procedures they fail to follow they will be on the ballot. I am 95% certain on this. In this 5% chance that it happens, I would like a followup bet that some portion of the US breaks off into its own country. Those are the consequences if you don't maintain the illusion of democracy.

The opposite is true of 3rd party candidates. A single failure to follow a single rule, or a single failure to get a triple the number of required signatures will result in them being off the ballot.

edit- went and did some research.

The most recent example of a major Democratic or Republican presidential candidate not appearing on a state ballot was in 1964. Lyndon B. Johnson, the incumbent president and Democratic candidate, was not on the ballot in Alabama. Instead, Alabama had former Governor John Malcolm Patterson as a stand-in candidate for the Democratic Party. This situation stemmed from complex political dynamics and disagreements within the party related to civil rights issues and other national policies at the time.

Before the 1964 instance involving Lyndon B. Johnson, another notable case occurred in the 1956 presidential election. That year, Dwight D. Eisenhower, the Republican incumbent, was not on the ballot in Alabama either. In his place, a slate of unpledged electors was listed instead. This was due to internal disputes within the state's Democratic Party, which was deeply divided over issues such as civil rights. These unpledged electors were intended to be free to vote for a different candidate other than the official party nominees if they were elected.

So aside from Alabama being weird chatgpt could only give me two other examples:

  • 1860 Presidential Election: As mentioned earlier, Republican candidate Abraham Lincoln was not on the ballot in several Southern states due to his anti-slavery platform. This exclusion was not limited to Alabama but included states like Georgia, Mississippi, and South Carolina.
  • 1912 Presidential Election: In this election, Theodore Roosevelt, who had previously been a Republican president, ran as a candidate for the Progressive Party (also known as the Bull Moose Party) after failing to secure the Republican nomination against incumbent President William Howard Taft. In some states, such as California, the situation led to a split in which both Taft and Roosevelt were competing for Republican votes, effectively making Roosevelt a major candidate running outside the traditional two-party system, impacting ballot dynamics.

So in one instance we had a literal civil war. And in the other three instances we had major party realignments happening.

I am 95% certain on this. In this 5% chance that it happens, I would like a followup bet that some portion of the US breaks off into its own country.

I could see some portion of the US attempting to split off, but what makes you think they'd be any more successful than the last time it was tried?

I'm not sure the US public has the stomach to force a recalcitrant state back into the fold.

I don’t know about that. I’m not sure how representative they are of the general public, but I’ve met Democrats in real life whose Civil War II fantasies would make even the standard “boogaloo”-poster blush. Expanding our scope to the general public, don’t you remember the mass celebrations on social media whenever an anti-vaxxer died during the COVID lockdowns? This leads me to believe that if the “Cathedral” (for lack of a better term) wants the US public to harden their hearts, then they’ll be able to do so just fine.

It’s easy to celebrate your enemies dying. It’s hard to live go through nuclear bombardment drills while your currency hyper inflates, you live under rationing, and there’s a draft on.

And more to the point, the Twitter democrats are not representative of the average American.

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