Jonathan P. Baird

So far this football season, there has been remarkably little coverage of the ongoing story of football brain injuries. I would have to say that the story has been backburnered.

Possibly that is because there has not been a new brain injury story featuring a former big star like Junior Seau or Frank Gifford. Or it might also be that the pending NFL concussion lawsuit settlement has sucked up all the oxygen.

It has certainly not been the greatest time for the NFL. TV ratings are down. Compared to last season, overall viewing has dropped 11%. Possibly football has reached a saturation point.

The domestic violence story of New York Giants kicker Josh Brown cannot help. Brown had abused his wife Molly over 20 times in the last few years. In a letter he had written his family in March 2014, he acknowledged the abuse.

“I became an abuser and hurt Molly physically, emotionally and verbally…I have physically, mentally, emotionally and mentally been a repulsive man. I viewed myself as God basically and she was my slave.”

The response of the Giants and the NFL has been less than inspiring. Brown got a one game suspension, no fine, and verbal support from his coach. It is not clear how much the Giants knew about Brown’s abuse of his wife but it appears they knew plenty. Brown’s arrests for domestic violence happened in May and July 2015. Still he was allowed to play the whole 2015 season. Then there was an incident at the 2016 Pro Bowl. NFL Security had to move Brown’s wife and kids to another hotel for protection. Yet the Giants rewarded Brown with a 2 year, $4 million contract

The situation prompted the highly respected Baltimore Ravens wide receiver Steve Smith Sr. to tweet:

“You know what if your ex-wife was my daughter yo ASS would be on IR…what a shame NFL acts like it cares.”

The NFL is now in damage control mode as there is a further investigation. I expect penalties will be upped as happened with Ray Rice but it is hard to imagine that domestic violence allegations or brain injuries will have much effect on the game’s popularity. For millions, these issues are flies, swatted away.

The League remains a relentless money machine.

This season, when Carolina Panthers quarterback Cam Newton took four big hits to the head in his first game, there was criticism that the referees were failing to protect him but almost nothing came of that. Two players got fined for the hits. The League decided that the referees correctly followed the brain injury protocol. Newton stayed in the game. In early October, Newton did sustain a concussion in a game against the Falcons.

At the least, penalties for helmet to helmet hits should be strictly enforced. If there were heavy fines and suspensions for intentional helmet to helmet hits, that would have an effect. Coaches could delineate how that is an absolute no-no and players would likely be more careful because it would impact both their pocketbook and the game outcome. No player wants to be suspended.

The NFL had previously reported that concussions in 2015 had risen 32% over the previous year. The League identified 271 concussions in 2015. That number includes preseason, regular season games, as well as all practices. 234 concussions occurred during games and 37 in practice. This increase happened at a time when sensitivity to the harm of brain injury has allegedly heightened.

Of the concussions in 2015, 92 came from contact with another helmet, 29 from contact with the playing surface and 23 from contact with a shoulder.

It needs to be noted that these are the reported concussions. It is impossible to know how many concussions do not get reported. Serious players at all levels, high school, college and pro, want playing time and reporting concussions is a good way to be benched.

The saddest concussion story I have seen in the last two years is not a pro football story. It is the story of Kosta Karageorge, an Ohio State football player and wrestler. In June, the New York Times reporter Tim Rohan wrote a powerful piece about Karageorge’s concussion history which preceded his suicide.

Karageorge had gone missing before the Ohio State-Michigan football game. He was found dead in a dumpster with a gun in his right hand and dried blood dripping from his mouth. The coroner ruled the death was a suicide.

Karageorge had started contact sports at age 10 and weight lifting at 14. From an early age he obsessed about getting bigger. He gained over 100 pounds in high school, transforming himself into a bulked-up athlete. He grew to be 6 foot 6 inches tall and he weighed 285 pounds.

At the same time as he became a heavyweight athlete, he started developing small bald spots. His doctor diagnosed stress-related alopecia.

One of Karageorge’s first known concussions was an incident in high school when he accidentally headbutted an opponent. The Times article said that he sustained more blows to the head when he wrestled. He and other high school friends started a fight club modeled after the movie. They would fight bare knuckles until someone quit or was knocked out.

Karageorge hid his concussion symptoms from his parents and coaches because he felt that was most manly. He had headaches, vomiting and he had episodes where he broke down crying for no apparent reason. He told friends that he heard a buzzing noise in his head. He believed he was being followed. He was showing signs of mental instability before he died.

In college, he challenged his roommates to outweightlift him, to outeat him and to beat him in the video game Call of Duty. He used to surprise his roommates with wrestling moves, breaking furniture in the living room. Rohan wrote that Karageorge kept a running score of everyone’s Man Points. He earned the title “alpha male of the house”.

Karageorge had toxic notions of masculinity. His tattoos spoke volumes. Rohan wrote:

“On his back he had Atlas holding up the globe because, he said, he had the weight of the world on his shoulders. He had an image of Zeus, and of Hades next to his three-headed dog, Cerberus. Down the back of his arm, he had “Pain is temporary”. On the other: “Pride is forever”. On the inside of his lower lip he tattooed the word “Brutal”. ”

Karageorge did not play college football until his senior year. He sustained his last known concussion during football practice two months before he died. It had kept him out of practice for three weeks. His parents believed that he had sustained about 15 concussions in his life but they were not sure because Kosta did not share details.

About a year after he died, Kostageorge’s parents received a report from Dr. Ann McKee, a neuropathologist, who posthumously examined Kosta’s brain. She found traces of past microhemorrhaging in the prefrontal cortex. Dr. McKee stated that damage in that area usually leads to cognitive issues involving “impulsivity, dis-inhibition, poor judgment, and maybe even suicidal ideation”.

Dr. McKee found a single focus of Tau, the protein associated with chronic traumatic encephalopathy (CTE). She diagnosed Stage 1 CTE. There are 4 stages on the scale. For those unfamiliar with the diagnosis of CTE, it is the degenerative brain disease which researchers have linked to many former football players. It is caused by repeated blows to the head.

At present, CTE can only be diagnosed after death,

On the last night of his life, Karageorge sent a steady stream of text messages to his girl friend. They had had an argument earlier in the evening and Kosta believed the relationship was over. He texted:

“I never felt this dark”

“man im broken my head isn’t right”

He texted his mother apologizing that he had been an embarrassment to the family and blaming the concussions for messing with his head.

Not surprisingly, CTE remains the biggest stumbling block in the NFL concussion lawsuit settlement. It is the signature injury of football but the settlement is a model of unfairness. In the settlement, those individuals with CTE who die after April 22, 2015 get no compensation. Those who died with the diagnosis of CTE before April 22, 2015 will receive up to $4 million.

You do not have to be a great prognosticator to know that CTE will become a health issue for thousands of football players after their playing days are finished. Where is the justice in this settlement? How can the door be slammed on the post-April 2015 CTE sufferers?

The case is not yet over though. While the Third Circuit Court of Appeals approved the settlement agreement, objectors to the settlement filed a petition asking the U.S. Supreme Court to take up the case and address deficiencies.

It is admittedly a long shot this will happen. Every year 7000 to 8000 petitions for a writ of certiorari are filed and the Court grants less than 80 of them. Four justices must agree to hear the case.

The Court is left in a tough spot. The settlement does significantly help some players who are absolutely deserving. At the same time, so many equally deserving are left out. Maybe it is adult to recognize unfairness in life but is this the best that can be done?

Whether it is brain injuries or domestic violence, football can do so much better. Football should not require the sidelining of conscience.

As the nation contemplates the latest round of police shootings of Black men, insightful analysis of racism is at a minimum. There is a dishonesty and shallowness in how race issues are typically covered in the United States.

Racism is often superficially defined as some spoken bad words – not institutional structures.

I was struck by this when I saw the recent comments by Governor Mike Pence, the Republican vice-presidential nominee, in reaction to the shootings in Tulsa and Charlotte. Pence felt there should be less focus on institutional racism and institutional bias.

These comments are quite in line with the dominant paradigm of colorblindness. Even though racism is our national plague, we will pretend it is a thing of the past. Understanding is replaced by a desire that we ignore the history of white supremacy and its current outgrowths.

The absence of explicit racism in the law and some genuine progress on race matters allow for the fraudulent argument that there is no more racial harm going on.

Possibly older readers will remember the Kerner Commission report. President Lyndon Johnson established the Kerner Commission to investigate race riots that happened in the 1960’s. The report concluded:

“We have visited the riot cities; we have heard many witnesses…This is our basic conclusion: Our nation is moving toward two societies, one black, one white – separate and unequal. Segregation and poverty have created …a destructive environment totally unknown to most white Americans. What white Americans have never fully understood – but what the Negro can never forget – is that white society is deeply implicated in the ghetto. White institutions created it. White institutions maintain it and white society condones it. Social and economic conditions in the riot cities constituted a clear pattern of severe disadvantage for Negroes compared with whites, whether the Negroes lived in the area where the riots took place or outside it.”

While Governor Pence wants to discourage looking more into institutional racism, I would suggest that is key to understanding how racism operates in the United States now. Almost 50 years ago, we produced the Kerner Commission report but then we went on to ignore its findings. At the time Martin Luther King Jr. pronounced the report “a physician’s warning of approaching death, with a prescription for life”.

Although we have an African American president, an important symbolic accomplishment, the legacies of slavery and segregation run deep. Our efforts to eradicate structural racism have been grossly inadequate.

Ghettoes continue to exist in all our major cities. In public education, contrary to the spirit of Brown v Board of Education, we have re-segregated. Black unemployment remains disproportionately high. Unpunished, unjustified killings by police of young black men are all too common and seem almost routine. Since the 1990’s mass incarceration of black people for non-violent drug offenses has been huge. Honest efforts, however flawed, to address racism, like affirmative action, have withered. The racism behind all the items I cited is not accidental. It is systemic and deeply rooted.

Part of the dishonesty around race is the failure to connect current problems to the history of slavery and segregation. There is an underestimation of the impact slavery and segregation still has. As a society, we remain unwilling to look at it honestly. Slavery remains a distant abstraction, disconnected from our present.

After the Civil War, although slavery was outlawed by the13th Amendment to the Constitution, black people continued to face rampant discrimination in employment, housing, health care, and every area of life. This was true in the whole United States, not just the South. The forms of racial oppression changed but racial inequality remained a major fact of life.

When federal troops were removed from the South in 1877, Reconstruction ended and so did hopes for racial justice. Jim Crow ruled. Hate groups like the Ku Klux Klan enforced the dominant white supremacy through lynchings and terror.

After Reconstruction, it was not until the Civil Rights Movement of the 1950’s and 1960’s that white supremacy was massively challenged. I would be wrong not to acknowledge the gains made since the 1960’s but those gains have to be ultimately recognized as very modest.

Coming out of the1960’s there was a recognition that there needed to be enormous infrastructural investment to revive cities. Such a tremendous investment would benefit workers of all races but it had the potential to strike a significant blow against racism. There is no doubt that dismantling ghettoes will not come cheap.

To date, we have refused to make such a public investment. As far as attacking institutional racism, as a society, we have been in retreat since at least the Reagan era.

In our current historical period, Black Lives Matter is an essential social movement expressing the legitimate feelings, needs and aspirations of African Americans. We have all experienced Michael Brown, Tamir Rice, Walter Scott and Laquan McDonald , to name a few. Then there are the non-shooting situations like Eric Garner and Sandra Bland. The reactions of African Americans, expressed in a movement like Black Lives Matter are totally understandable.

To say black lives matter does not mean that white lives are not equally important too. However, because of the history of unjustified killings perpetrated by poorly trained and likely racist law enforcement officers, it is necessary to put emphasis on protecting black lives. The police have an extremely difficult job but that cannot be an excuse for the “shoot first, ask questions later” behavior which is too common.

Those opposed to racial justice have put forward many excuses and explanations for our racial disparities. Usually the explanation blames the victim. Think code words like states’ rights, culture of poverty and personal responsibility. It is tragic that some white working people buy into the fear, ignorance and hate promoted by white nationalists. They are being snookered.

Love of justice is a mighty force. The struggle for equality and against white supremacy is a just struggle. Down through American history there have always been white people who courageously sided with African Americans. Some 19th century names come to mind: William Lloyd Garrison, Wendell Phillips, Lucretia Mott, Harriet Beecher Stowe, Thaddeus Stevens, and Charles Sumner. More recently, Viola Liuzzo, Anne Braden, Andrew Goodman and Michael Schwerner.

More white people need to support Black Lives Matter now.

In recent years, gun control advocates have had precious little to cheer about. Victories have been exceedingly rare.

So it is important to acknowledge a real win when it happens. Back in June, at the end of the U.S. Supreme Court’s term, the Court issued a decision which limited domestic violence abusers’ access to guns.

In the case of Voisine v U.S., the Court held that misdemeanor assault convictions for reckless conduct do trigger the ban on abusers’ owning or possessing firearms. The Court ruled on the case on the same day it delivered a big abortion rights decision. As a result, Voisine got buried in the news and the case did not receive the publicity it deserved.

The facts of the Voisine case demonstrate its significance as this is a domestic violence situation that has been and will be replayed many times. In 2004 Stephen Voisine, a logger from Maine, pled guilty to assaulting his girl friend and violating a restraining order. This was a misdemeanor domestic violence conviction. A few years later, Voisine got into trouble again by shooting and killing a baby bald eagle. That is also a crime as bald eagles are protected under federal law.

When law enforcement officers investigated the killing of the bald eagle, they found out that Voisine owned a rifle. A background check turned up the prior misdemeanor conviction. The Government then charged Voisine under federal law.

There was also a second defendant in Voisine’s case when it reached the Supreme Court as the cases were consolidated. William Armstrong, also from Maine, had pled guilty in 2002 and 2008 to beating his wife. A few years back, law enforcement searched Armstrong’s home as part of a narcotics investigation. They found six guns plus a large quantity of ammunition. The Government also charged Armstrong under federal law.

Under a 1996 amendment to the federal Gun Control Act, anyone convicted of a misdemeanor domestic violence offense is barred from owning forearms. The ban is lifetime. Of course, the existence of a federal ban on firearm possession for misdemeanors does not mean that law will necessarily be enforced.

Voisine and Armstrong both challenged their convictions. They argued that they were not subject to the federal law because their crimes were reckless – not intentional. Essentially they were saying that they never meant to hurt their intimate partners.

The Supreme Court did not buy that argument. By a 6-2 vote, the Court, in an opinion from Justice Kagan, upheld Voisine and Armstrong’s convictions.

On its face, the idea that the defendants in this case did not commit intentional acts seems very weak. Although they were charged with reckless conduct, was it mere accident they beat up their partners? Supposedly they lost it so much that their violence was unintended. Such an argument does not square with what we know about domestic violence.

Domestic violence is almost never a one-off incident. The pattern typically includes long-term psychological, sexual and physical abuse. I believe abusers usually act deliberately not by accident or by losing control. For the abuser it is about power and control. The abuser gets pleasure out of feeling he rules.

The idea that domestic violence is reckless, not intentional, misses the context in which the abuse occurs. If the pattern is long-standing, defining a beating as “reckless” wrongly sees that episode as an aberration.

Abusers specialize in denying personal responsibility for their bad acts. The argument that abuse was reckless not intentional fits perfectly into abusers’ common game plan. It is never their fault.

Interestingly, only one group filed an amicus brief at the Supreme Court on the side of Voisine and Armstrong. That group was the Gun Owners of America. They did not think a misdemeanor conviction for domestic violence was a sufficient ground to deprive an American citizen of the right to possess a gun. That was also the position argued by Justice Thomas in his dissenting opinion.

The term “misdemeanor” can be misleading. In a New Yorker piece, Rachel Louise Snyder explains:

“To many ears, a misdemeanor, reckless or intentional, sounds like no big deal. But it’s important to point out that when it comes to domestic violence, the seriousness of misdemeanors is markedly downplayed. Most domestic violence incidents across the United States are charged as misdemeanors, though they are often part of a larger pattern of violence.”

Snyder goes on to show that very serious crimes can be charged as misdemeanors. She uses the example of non-fatal strangulation. In 12 states, this is a misdemeanor charge, not a felony. Unfortunately, somewhat misleading legal language can, in effect, play into an abuser’s hand because the term “misdemeanor” could be construed as something minor.

The statistics about guns and domestic violence remain sobering. For at least the past 25 years, more intimate partner homicides have been committed with guns than with all other weapons combined. Statistics also show that women are more likely to be killed by an intimate partner than by any other offender group. When a gun is present in a domestic violence situation, the risk of homicide skyrockets.

Voisine points to the need for an improved background check system. We should not be making it easy for prohibited batterers to have access to guns. Background checks should be required for sales from all private gun sellers. The domestic violence example highlights this need possibly more than any scenario.

Guns and domestic violence are a lethal mix. In my earlier life when I did some representation of domestic violence victims, I saw how just the presence of guns in a household could act as a visible threat and source of intimidation. Guns and their showing are used to keep the woman in line and under subjugation.

The Supreme Court’s decision in Voisine offers some much needed protection for domestic violence victims.

In a little noticed story on July 14, the Periodic Review Board of the Guantanamo Bay detention camp approved the release of Mohamedou Ould Slahi, a Mauritanian citizen and author. The Periodic Review Board, which must assess the threat posed by the remaining 61 Guantanamo detainees found that Slahi represented “no continuing significant threat to the security of the United States”.

The Board noted Slahi’s “highly compliant behavior in detention” and also felt there were “clear indications of a change in the detainee’s mind-set”.

What is unique about Slahi is that he is a best-selling author. In his book, Guantanamo Diary, he described his ordeal. Slahi spent nearly 14 years at Guantanamo. He was never charged with any crime. Before he landed in Guantanamo, he was held in Mauritania, experienced rendition to Jordan with 8 months interrogation there and he then had another rendition to Bagram Air Force Base in Afghanistan. The book begins with Slahi being stripped, blindfolded, diapered, shackled and flown to Bagram.

All these events are what Slahi humorously referred to as “my endless world tour”.

Slahi wrote the book back in 2005 but it took more than 6 years of legal fights to have the manuscript cleared for public release. Slahi wrote the book from his segregation cell in Guantanamo. The book is still heavily redacted by government censors.

Slahi’s account presents the best picture we have of what went on at Guantanamo in the years after 9/11. Probably for most all of us, torture remains an abstraction. It is something you read about or see a story about on TV. Slahi takes you inside the experience.

The famous writer, John le Carre described Slahi’s book as “a vision of hell, beyond Orwell, beyond Kafka..” It is hard to disagree. We don’t have a clue what has gone on at Guantanamo. Sadly, it is a very sick, sadistic form of torture that is absolutely contrary to our constitutional values as well as international law.

I feel what sets Slahi’s book apart from other books or articles about Guantanamo is the human dimension. You are not reading about a list of torture techniques he experienced. Slahi describes the torture experience but the book presents a much deeper view that includes humor, wit, his relationships with his guards and interrogators, his political and religious observations and his subjective feelings about his suffering.

The book is, not surprisingly, an indictment of the view that torture works. Slahi made up stories to get the torture to stop. I think just about any human being who went through what he did would do the same. The crazy thing is that the wilder Slahi’s statements about his terrorist activities, the happier the torturers got.

Slahi was so broken by the torture that he would tell the torturers whatever they wanted to hear. “I don’t care as long as you are pleased. So if you want to buy, I am selling.”

The book is a window into a form of organized madness. You might think some of the torture is spontaneous and random. In a way, it would be nice to think that because that would seem less malevolent. Many of the torture techniques are based on years of study into the best way to break people down without leaving physical evidence of the torture. They were part of the “special plan” personally approved by former Defense Secretary Donald Rumsfeld.

Slahi was subject to extensive sleep deprivation, prolonged isolation, stress positions, restricted diet, extreme cold temperatures, sensory bombardment (noise), a simulated kidnapping, a mock execution on a boat, sexual assault, threats to kidnap his mother, beatings, cold water dousings that left him shaking, and ice cube stuffing under his clothes. He was chained constantly and hooded. For years, all his guards and interrogators wore masks during the torture. It is hard to imagine how you would not lose your mind under these circumstances. From Slahi’s account, many detainees did lose it.

In describing the torture methods, I am not doing justice to the extent of the harm. For example, regarding Slahi’s diet, his captors would serve him a meal and take it away one minute later or they would force him to drink so much water he felt his stomach would burst. Food and the quality of food he received were integrated into the torture routine. When the captors became happier with Slahi’s responses to the same questions they asked him for years, his diet would be improved.

Unfortunately for Slahi, he fit a possible terrorist profile. He had fought against the Russians in Afghanistan with Al Qaeda when the United States was allied with Al Qaeda. He had a relative who was an advisor to Osama bin Laden. Like the 9/11 co-conspirators, he had studied in Germany. He was an electrical engineer. He had also spent some time in Canada. With that profile, there was no presumption of innocence. Although he could not be told what crime he committed, his captors told him he met all the criteria of a top terrorist.

While they lacked evidence, the captors believed Slahi was mastermind of the so-called “millenium plot”, a 1999 attempt by Ahmed Ressam to smuggle explosives over the Canadian border to blow up the Los Angeles International Airport. The facts did not fit this theory at all because Ressam had left Montreal before Slahi moved to Canada. Because that plot made no sense, the interrogators creatively tried out the theory that Slahi recruited the 9/11 hijackers.

The assumption remained that Slahi was a big fish terrorist, among the worst of the worst. Because of his profile, guilt was assumed. Forgotten was the fact that on November 20, 2001, Slahi drove himself to the police station in Noakchott, Mauritania and turned himself in voluntarily for what he thought would be some further questioning. Before his rendition, Slahi never tried to run.

In March 2005, Slahi handwrote a petition for a writ of habeas corpus. Because of the U.S. Supreme Court decision in 2008 in the case of Boumediane v. Bush, Slahi and other Guantanamo detainees obtained the right to challenge their detention through habeas corpus.

U.S. District Court Judge James Robertson heard Slahi’s habeas petition in 2009. In March 2010, Judge Robertson granted Slahi’s habeas petition and ordered his release. The Obama administration appealed Judge Robertson’s decision. At the time of Slahi’s release, the case was still pending. The DC Circuit Court of Appeals had sent the case back for rehearing at the Federal District Court.

Slahi’s experience is an example of what happens when hate, fear, and paranoia replace rules of evidence, due process and a speedy trial. The victim faces the absurd situation where, regardless of the facts, there is no way to establish innocence.

No doubt there are many who will not care about command-sanctioned torture of a prisoner in custody. Numerous polls show a majority of Americans support torture against terror suspects. We even have a presidential candidate, Mr. Trump, who favors “a lot worse than waterboarding”.

Slahi’s story shows the danger in normalizing torture. Innocent people can be swept up in dragnets and get subjected to the sickest abuse.

I think Guantanamo has done enormous damage to the moral authority of the United States. Torture leaves an indelible stain. We need to never forget that torture remains a crime. The United States needs to stand up for a firm commitment to international standards for human rights.

As we head toward the general election, voters on both sides of the political divide bring their own sense of paranoia to the process. Each side is worried about the other side cheating. The Republicans concern has been voter fraud. On the Democratic side, the concern has been voter suppression.

John Lennon once described paranoia as a heightened sense of awareness. So you have to ask: whose paranoia is more justified?

I don’t think the answer is close. Concerns about voter suppression have a substantial basis in fact. The same cannot be said about voter fraud. In our historical period, in the United States, almost all allegations of voter fraud have turned out to be baseless.

While Donald Trump has said that you have people fraudulently voting many times, there is zero evidence that is true. In 2014, Justin Levitt, a law professor and now an assistant attorney general at the Department of Justice, surveyed more than a billion votes cast in general, primary, special and municipal elections across the United States from 2000 through 2014. He found only 31 credible instances of voter impersonation. Statistically, that is an infinitesimally small number.

Levitt has written that voter impersonation is rarer than being struck by lightning.

Other types of voting fraud – voting in the name of dead people and voting by foreign nationals – have not been substantiated. Saying there is fraud does not make it so. Those concerned about voting fraud have not made a case based on evidence.

On the other hand, concerns about voter suppression do have a basis in fact and that can be easily demonstrated. Seventeen states have new voting restrictions in place for this upcoming presidential election. This is the first presidential election without the full protection of the Voting Rights Act. Also, this is one of the first elections in the aftermath of the Citizens United decision from the U.S. Supreme Court where the full power of Big Money can weigh in. And that only scratches the surface.

I would begin with voter ID laws. They are now in place in 33 states. Although they are justified as a way to insure election integrity, there is evidence that the photo ID requirement discriminates against groups that are less likely to possess photo IDs. Typically these voters are poor, Black, other minority, elderly or disabled.

On July 20, this argument received powerful validation from an unexpected place. The full United States Court of Appeals for the Fifth Circuit, widely seen as a very conservative court, ruled that Texas’ voter ID act had a discriminatory impact on minorities and did violate the Voting Rights Act.

A 2011 study from the New York University’s Brennan Center had previously shown that 6-11% of the U.S. population that is voting age lack a government issued photo ID. A more recent 2014 study by the Government Accountability Office found that voter ID laws in Kansas and Tennessee reduced turnout by 1.9 and 2.2 percent respectively compared to four states that did not pass voter ID laws – Alabama, Arkansas, Delaware and Maine. The report found that young people, black people and newly registered voters were most likely to see reduction in turnout.

A second cause of concern is early voting cutbacks. States vary dramatically as to when and how much early voting can go on. For example, in 2012, Florida cut early voting from 14 to 8 days. In 2013, North Carolina cut early voting from 17 to 10 days. It seems to me there should be some national standard so there is uniformity among the states. In the absence of a national standard, cutting voting days seems both arbitrary and destined to deflate voting numbers.

States also vary on same day registration which allows any qualified resident of a state to go to the polls on election day, register that same day and then vote. States with election day registration have 5-7% higher turnout. At present 13 states plus the District of Columbia offer same day registration. New Hampshire, to its credit, does. Procrastinators and those who wait until the eleventh hour benefit from same day registration.

We have witnessed the repeated embarrassing spectacle of voters standing in line for many hours waiting to vote. In March, during the Arizona primary, people waited five hours to vote. Many disgusted voters left without casting a ballot. The cause: election officials reduced the number of polling places by 70% from 2012 to 2016. The officials said they wanted to save money.

In Florida, in the 2012 general election, people waited up to seven hours to vote. In this instance, the lines disproportionately affected African American voters and other minorities. The question arises: how could this be happening in Florida, the state of Bush v Gore ? And how many more times is this going to happen? The track record of too many states, especially Southern states, is not reassuring.

While many may not remember or may not want to remember, in 2000 then-Florida Secretary of State Katherine Harris had ordered the removal of over 57,700 “ineligible” voters from the voter rolls. Harris had claimed the voters were ex-felons and ineligible to vote. It turned out, after the election, that the scrub list distributed by Harris was full of errors. She disenfranchised up to 12,000 legally registered voters, 41% of whom were African-American. That was an election Bush won by 537 votes. That was the margin in Florida.

That election remains the classic example of how small manipulations in the electoral process can make a huge difference.

I would be remiss if I did not mention both voter purges and felon disenfranchisement. While states have an interest in accurate and correct voter rolls, too often legitimate voters disappear from the rolls, show up election day, and can’t vote. As for felon disenfranchisement, even though many states have moved forward and removed archaic state statutes, it remains a big deal. One in every thirteen Black adults cannot vote as a result of a felony conviction. Nationally, an estimated 5.85 million voters are banned from the polls. States vary significantly in their rules about when the voting ban is invoked but, bottom line, these rules still affect millions.

To appreciate the historical background of voting suppression, all the restrictions I have mentioned must be understood inside the context of the struggle over the Voting Rights Act. In his book, Give Us the Ballot, the writer Ari Berman shows how these issues have played out since 1965. We have moved from poll taxes and literacy tests to voter ID and subtler ways to discourage the vote.

I am struck by how much more attention gets paid to the question of who people are going to vote for rather than the question of whether every eligible voter will be able to cast a ballot. Just considering the experience of Bush v Gore, we appear to be sleepwalking.

With voter turnout so low in the United States (only 57.5% of eligible citizens voted in 2012) it is past time to work to increase voter participation and to modernize voter registration. Many states still rely on outdated paper records.

I would make the case for universal automatic voter registration at age 18. Unless the potential voter chooses not to be on the rolls, the government would automatically register eligible citizens. If this vision was fully implemented it would add 50 million voters to the rolls. There is something wrong with the perspective that hopes to win by minimizing the vote.

If the election this fall is close, voter suppression could be quite consequential. We should not have elections decided by a concerted effort to keep the turnout down.

I saw this quote from James Madison which seems especially apropos now:

“Who are to be the electors? Not the rich, more than the poor, not the learned, more than the ignorant, not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune. The electors are to be the great body of the people of the United States.”