Bootleggers & Baptists LXII: The Cartel Wants to Get in on Legal Weed

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The War on Drugs waged by the United States since the 1970s has created a myriad of Bootlegger and Baptists (1983) dynamics. Few people question who stands to benefit from the legalization of currently prohibited drugs. This question becomes more prominent as more jurisdictions globally legalize recreational Marijuana. What happens when the most evident Bootlegger of the illicit drug trade (the Sinaloa Cartel) works to legitimatize commercial Marijuana sales? Does this strategic move shift their position in the coalition to that of the Baptists

This essay will examine this point to determine if the bad boys of the illegal dope game have turned over a new leaf. The legal status of Marijuana in Mexico is not as loose as the laws of their northern neighbors,  California and Arizona. Medical cannabis has been legal in Mexico since 2017, but what about the recreational consumption of pot? Mexico has decriminalized possession of up to  28 grams of Marijuana; recreational cannabis is still not legal. The staunch competition from the United States has caught the attention of various cannabis vendors in Mexico.

American dispensaries have achieved immense success considering sales for recreational weed are projected to hit “.. $25.1 billion in sales in 2025, with an average yearly growth of %23.60 from 2019 to 2025…”. It is self-evident that the illicit drug cartels would want a piece of the action. Yes, the most infamous cartel in Mexico has been watching. In the city of Culiacan, those left in charge since the incarceration of “El Chapo” Guzman, the “Narcosjuniors”, have established quasi-legal dispensaries. Selling various products ranging from edibles to best-sellers (manufacturing around 1,200 to 1,500 a week); pre-rolled joints. However, the cartel creating formal business networks, does this mean they are making sincere inroads to legalizing a drug with relatively few societal externalities? The transparent motive profit, leading them to create a commercial channel transitioning to a legal market.

If Sinaloa is once again the proverbial Bootlegger, who are our Baptists? We need to look at whom the cartel is employing to ensure quality control. After all, the cartels do not have the best reputation; when it comes to producing primo Marijuana. El Chapo’s successors will not be the Baptists, but they have enough sense to enlist the help of the passionate pot aficionados to cultivate higher-quality weed. They have hired weed-loving growers who have previously lived in California. Their love for cannabis urges them to:

“..We only have the permit to produce. The organization is giving us their money, their trust, and the green light to make the best product. But we can only sell to one client: the organization. We get good pay for our job, not in the millions, but enough to live off well, but more than that, the opportunity to develop top-notch weed,” one of the producers said..”

As usual, the cartel is still chasing profits, but the growers they employ want to grow the best pot in the world. Because of their love for the product, they want to dominate the global market (Canada, United States, and the Netherlands being the current movers and shakers). Only time will tell; once legalization takes full effect, if Mexico can overtake the California market. It would be nice to see an aggressive resurgence of high-caliber Acapulco Gold as a result of market competition.

Bootleggers & Baptists: LX- Arizona Senate Race

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In recent Arizona election news, Libertarian senate candidate Marc Victor has withdrawn from the race and openly endorsed Republican Blake Masters. Much like other circumstances in politics, there is a moralizing rationale for Victor’s capitulation and an obvious beneficiary of his exiting the race. There is Bootlegger and Baptists (1983) dynamic in this development in the Arizona mid-term election.

Victor left the race and lent his support to Master to avoid a spoiler effect; a phenomenon where third-party siphons off votes from a major party candidate. This is an enduring problem for Arizona Republicans for a while, hence the passage of HB 2608 (2015). This has only been exacerbated; by the fact that the Democratic party made numerous donations to Marc Victor’s campaign. By any metric, Victor calling it quits to avoid a spoiler effect has the normative underpinning of moralistic reasoning [1].; he is a Baptist in this scenario.

The Bootlegger in this situation is indisputably clear, Blake Masters. One less candidate in the race means more votes for Blake. Masters has been after the Libertarian vote before Victor even dropped out of the race. He has been dog-whistling and pandering to certain Libertarian sensibilities that are still congruent with the new strain of right-wing populism (no one will accuse him of being soft for wanting to “End the Fed”). Even leaning on his ties to the Ron Paul movement back in college. His strategy to capture the voters of a right-wing leaning third-party is a shrewd move on his part; if the polls are accurate, this will be a tight race. Per Five-Thirty-Eight, Mark Kelly currently holds a meager lead over Masters, Kelly polling in at 48.4 % and Masters trailing behind at 46.8%.

Notes:

  1. Victor may have been concerned about the effect of his third-party campaign on the election results, he may only be a superficial Baptist. Why? Per Reason, Victor did receive threats from supporters of his opposition. This fact cannot be dispensed with when evaluating his decision to exit the Arizona senate race.

2. Data source Five-Thirty-Eight. Figure A.

3. Figure B. data was processed in Microsoft Excel.

Figure A

Figure B

Arizona 2022 Senate Race

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The contentious senate race in Arizona is a worthwhile mid-term election focal point as the Grand Canyon State drifts towards becoming a purple state. Now the senate race is down to a two-party showdown since Libertarian candidate Marc Victor pulled out and bent the knee to Republican Blake Masters. While the individual impact of a single vote may be minuscule; voters should still attempt to educate themselves, as voting provides an expressive function. A vote is a confirmation of consent for a candidate or bundle of policies on their platform.

Here are the purported platforms of both candidates:

Republican: Blake Masters (per his campaign website, a three-plank platform)

Make America Safe Again

Democrats are the party of lawlessness and anarchy. We have lawlessness at the border. We have lawlessness in our cities. And with weak leadership in the White House, our foreign adversaries are becoming ever more emboldened and dangerous.

 As a father of three young children, I am so sick of this crime and chaos. It’s time to turn this ship around. We need to get control of our border. We need to punish criminals severely. And we need to project strength and competence abroad.

 Without baseline safety and security, society cannot survive, let alone thrive. In the U.S. Senate, I’ll fight every day to make life in Arizona safe again

  • Secure the border and end illegal immigration.
  • Stop the Biden crime wave.
  • America First: Strong and smart national defense.

Make America Prosperous Again

In Arizona, you should be able to raise a family on one single income.

You used to be able to do that. After decades of government intervention stifling our growth, outsourcing our jobs, and devaluing our money, you can’t do it anymore. The Left likes it this way it makes us more controllable and undermines the nuclear family.

In the U.S. Senate, I’ll fight every day to make life in Arizona affordable again. And I’ll bring innovative thinking to Washington that builds an environment for greater economic opportunity and bigger paychecks.

  • Empower parents and stop woke teachers.
  • Stop Bideninflation.
  • More jobs and bigger paychecks.
  • Immigration that works for America.
  • Energy independence, low gas prices.

Make America Free Again

The Far Left is hell-bent on destroying your rights. They want to suppress any dissent from their agenda. And they want to impose their radically liberal ideology to transform our culture into something unrecognizable.

 As your U.S. Senator, I will fight to my last breath for our constitutional rights and for our way of life.

  • Save free speech and fight big tech.
  • Expand gun rights.
  • Protect babies, don’t let them be killed.
  • Protect religious freedoms.
  • Pro-Bitcoin.
  • Secure our elections.
  • Put an end to wokeness.

Democrat: Mark Kelly (per his campaign website, a twelve-plank platform)

 LOWERING COSTS

  • Since last November, Mark has called on the Biden Administration to take action to lower costs. His plan to lower prescription drug costs was recently signed into law. He’s also introduced legislation to temporarily suspend the federal gas tax, supported increasing domestic oil production, and has pushed corporations to stop price gouging.

 GETTING ARIZONA’S ECONOMY BACK ON TRACK

  • Mark has helped cut taxes for families, all while making sure corporations pay their fair share. He delivered direct support to Arizona families and small businesses as well. Since taking office he’s also returned over $17 million in owed benefits back to constituents and has used his office to help support local small businesses like Tres Leches Cafe in Phoenix.

CREATING JOBS

  • Through the bipartisan infrastructure law and his microchip manufacturing law, Mark is bringing thousands of good-paying jobs to the state of Arizona, many of which don’t require a four-year degree. By supporting community colleges and technical schools around the state, he’s making sure Arizonans have the tools they need to fill these jobs.

INFRASTRUCTURE & MICROCHIPS

  • Mark played a key role in shaping the bipartisan infrastructure law that will fix our roads and bridges, increase access to high-speed internet, and modernize our ports of entry. He also negotiated the bipartisan CHIPS law which will invest in microchip manufacturing here in Arizona, easing supply chain demands, creating jobs, and supporting our national security.

HEALTH CARE

  • Mark passed a law to ban surprise medical billing. He also passed major prescription drug reform that will allow Medicare to negotiate lower drug prices with pharmaceutical companies and will cap out-of-pocket expenses for seniors. He will also always protect Social Security to make sure seniors have the benefits they’ve earned.

SECURITY

  • Mark has delivered increased technology and staffing to strengthen Arizona border security. Thanks to Mark, Customs and Border Protection will be closing border barrier gaps near the Morelos Dam outside Yuma. Mark will keep working to ensure that Arizona has the tools needed for a secure, orderly, and fair process at the border.

BAN CORPORATE PACS

  • Mark doesn’t take a dime of corporate PAC money and he has proposed legislation to ban corporate PACs entirely. Mark believes we need to reduce the corporate influence in Washington that so often stands in the way of getting results for Arizonans.

PUBLIC SENATE SCHEDULE

  • Mark publishes his official Senate schedule online so Arizonans can see whom he’s meeting with and how he’s working for our state — and he’s introduced legislation to require all senators to do the same.

END CONGRESSIONAL STOCK TRADING

  • Elected leaders have access to valuable information that impacts policy, the economy, and entire industries. Mark has introduced legislation to ban members of Congress from trading stocks, which would put an end to corrupt insider trading and ensure leaders in Congress focus on delivering results for their constituents — not their stock portfolios.

PROTECT ABORTION RIGHTS

  • Mark is a co-sponsor of the Women’s Health Protection Act which would write almost 50 years of precedent for abortion protections under Roe v. Wade into law. Mark will always defend and protect the right of Arizona women to make their own healthcare decisions.

FIGHT CLIMATE CHANGE

  • From the International Space Station, Mark has seen the impacts of climate change on our planet. He knows we have to use science, data, and facts to fight climate change and its impacts on Arizona, including drought, heat, and wildfires. He passed legislation to boost renewable energy, which will protect the climate and create more great-paying jobs in Arizona.

SUPPORT VETERANS

  • As a Navy combat veteran, Mark has great respect for Arizona’s military and veteran community. In office, Mark helped pass bipartisan legislation to expand VA healthcare eligibility for toxin-exposed veterans.

Both candidates are offering very different bundles of public goods, so it would be wise for voters to look a little deeper into the mechanics of each policy prescription. Once the results are in, a Shapley value should be calculated to determine the magnitude of the winner’s success. Will it be the Thiel-backed conservatarian or center-democratic astronaut?

Blockchain Voting Systems

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America’s faith in domestic elections is now buckling. Elections are now among the many enduring institutions; that the American people are losing trust in. Whether it was the investigation into meddling in the 2016 Election or the claims of voter fraud costing Donald Trump reelection, Americans have lost faith in elections. Voting, much like other segments of political life, perception carries more weight with the public than reality. An axiom keenly observed by Machiavelli centuries ago; appearance is everything.

63 % of adults polled indicated that they favor abolishing the electoral college. An NPR poll claims that 64 % of participants believed that democracy was in a state of crisis. One survey suggests that many Americans favor reforms to increase ballot access. US voters have concerns regarding the fairness and legitimacy of domestic elections. Both sides of the aisle are worried, but their distress is generally limited to situations of ideological interest. For example, 70 % of Republicans believed that the 2020 election, that ousted Trump out of office; was manipulated. A notable 72% of democrats suspected Russian interference in the 2016 Election was likely.

Could the faith be restored in American elections if we scrapped the current voting methods for one that made the process more transparent and accessible? A potential solution could be implementing a blockchain-based voting system. This would entail that each vote is permanently recorded on a publicly accessible ledger. Each voter “transaction” would then be confirmed by blockchain validators, in effect decentralizing the vote authentication procedure. Providing greater transparency, fewer barriers to the ballot box, and anonymous consensus on the majority vote. It would be possible for there to be a two-tiered blockchain system, one environment for voters and the other for the electoral college. This way, we do not have to restructure the legal framework of voting in our Democratic Republic. But also, this avoids the controversy of “faithless electoral” (the issue was adjudicated in Chiafalo v. Washington), as the electoral representative’s fidelity to the popular vote would be visible and immutable[1].

Some municipalities throughout the United States, such as Chandler, Arizona, have run pilot programs to identify problems before mapping this system to a local election. Taking precautions such as a trial run is a wise approach. It is imperative to conduct such experiments before implementation because such a cutting-edge voting system is largely untested. However, it is also advantageous to consider the hypothetical benefits and cost of blockchain voting; to be valid if even it is worthy of drafting a formal proposal to local policymakers [2].

Benefits of Blockchain Voting

  • Prevents tampering with votes; “…blockchains generate cryptographically secure voting records. Votes are recorded accurately, permanently, securely, and transparently. So, no one can modify or manipulate votes..” (p.3).
  • Blockchain voting would increase voter participation by eliminating some barriers and coordination costs associated with in-person voting and mail-in ballots (p.4).
  • This system could make the vote counting process more efficient (p.4); “… with an automatic tally that can be publicly disclosed after the fact, election officials will be able to simply add the digital votes to the votes cast otherwise…” (p.430).
  • Greater transparency because “… recording votes onto a blockchain allows for an easily accessible method for a voter to audit their respective vote..” (p.430).

Drawbacks of Blockchain Voting

  • There is potential for the blockchain validators to succumb to external interests (bribery, threats of violence, etc.) and collude to alter the election results. 
  • As with blockchain environments for cryptocurrency transactions, this system would only provide pseudo-anonymity. Ultimately, the validator would be the “key holder” and possess the ability to decrypt the voter’s identity. Utilizing a voting protocol that would have a two-step (having the voter “re-vote”) process may add a layer to ensure privacy, making the process more complex
  • Blockchains are still susceptible to the cybersecurity threat of attacks from hackers. “…If a user loses their private key, they can no longer vote, and if an attacker obtains a user’s private key they can now undetectably vote as that user… happened to cryptocurrency exchanges, which have lost hundreds of millions of dollars worth of cryptocurrency to attackers or through bad key management..” (p.14).
  • Decentralized ledgers are managed by multiple validators which can make “.. coordination difficult..” (p.15).

Conclusion:

It is impossible to develop a voting system with zero margins for error. Regardless of the format, the potential for mistakes and devious machinations will always lurk in the background. Most individuals in the political establishment and the academy are not receptive to blockchain voting. Below is a conclusion from a widely cited MIT paper on the topic:

“…A summary of this article’s takeaways follows. 1. Blockchain technology does not solve the fundamental security problems suffered by all electronic voting systems §3. Moreover, blockchains may introduce new problems that non-blockchain-based voting systems would not suffer from. 2. Electronic, online, and blockchain-based voting systems are more vulnerable to serious failures than available paper-ballot-based alternatives (§2). Moreover, given the state of the art in computer security, they will continue to be so for the foreseeable future. 3. Adding new technologies to systems may create new potential for attacks. Caution is appropriate in security-critical applications, especially where political pressures may favor an expedited approach. (§3.4). The article has also provided a collection of critical questions intended as a reference point for evaluating any new voting system proposal from a security perspective (§4) and provided references for further reading on this topic (§5). Blockchain-based voting methods fail to live up to their apparent promise. While they may appear to offer better security for voting, they do not help to solve the major security problems with online voting, and might well make security worse…”.

(p.19)

Although the conclusion in the above white paper may be reasonable objections, this does not mean that developers could not attempt to correct these shortcomings. For the ivory tower intellectuals, it is easy to dismiss this concept on technical grounds alone, but virtually no one is supplying any solutions. Even though numerically, a person’s vote has no chance of influencing the outcomes of an election, voting still operates as a form of political expression. Since there is a great deal of disillusionment with the current political system, it is critical to find a way to provide greater transparency in elections. Political strife and division have already taken their toll on American society for the past decade; no need to continue down this dark and fruitless path.

Footnotes:

  1. This observation is not commentary nor a critique on the institution of the Electoral College. The only aim of this statement is to address the popularly held misgivings about electoral voting systems.
  1. The detailed lists of the positive attributes and negative qualities of blockchain voting are not exhaustive.

Prisoner’s Dilemmas- XX: City Council Cartels

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Anyone who has observed the chaos of local politics has seen the Machiavellian dynamics of a municipal committee elected by the town. The best example is seated on the town council. The incentive structure of the council members; is driven by the fact that their position is secured or eliminated by the will of the people. Setting up the classical variables for any Public Choice analysis, as the council members tailor their platforms and rhetoric to the voter preferences. If the same council members are either reelected or run unopposed, there is the incentive to form a coalition with the other recurring council men, formulating an informal agreement to have each other’s back. Effectively creating a cartelization since the other sitting council members have consented to support your policy prescriptions and justify your controversies. Per Katz and Mair (2018):

“…The mainstream parties, and most minor parties as well, have effectively formed a cartel, through which they protect their interests in ways that sap the capacity of their erstwhile principal—the electorate—actually to control the parties that are supposed to be the agents of the electorate. While the appearance of competition is preserved, in terms of political substance it has become spectacle (p.7)…”

By forming tight bonds and backing the rest of the elected officials on the council, each works to consolidate the power within this single unit of governance. Forming an impermeable oligarchy that the voters cannot vote out office due to a lack of policy competition. Analogous to an economic cartel, where consenting producers all fix prices in unison, all politicians “fix policy” to conform to the rest of the representatives on the council. This keeps external influences out of the fold, enabling all to retain their seats if they play ball. Much like all participants in an economic cartel enjoy larger profit margins, if no one reneges.

Hypothetically, let’s say there are four council members; one of the incumbents decides to resign mid-term. The replacement candidate is an insurgent candidate, breaking the unanimity among the colluding council members. This loosens the relational foundation among the incumbents; we start to see instances of defection among them. What was once complete accord among the old boys club quickly devolves into a prisoner’s dilemma. It is important to remember that cartels seldom are sustainable indefinitely. Eventually, the temptation of one party to undercut the rest of the colluding companies will cause them to defect (Tullock, 1985, p. 1076). For example, one particularly narcissistic council member may claim responsibility for policy reforms that his other cohorts co-sponsored. This type of behavior only undercuts the contributions of the others, leading them to undermine this arrogant council member. The cadre of incumbents suffer from the eroded trust. The newer member with innovative policy prescriptions; only proceeds to dimmish the creditability of the old boys club.

More on Torres v. JAI

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In a previous blog entry, I did mentioned that the Arizona Supreme Court made the right call on Torres v. JAI (2021). The case regarding the assignment of liability when bars over-serve customers. The AZ Supreme Court ruling is only valid because the decision conforms to previous case precedence. For example, in the logic of Patterson v. Thunder Pass (2007), the court waved liability the bar made a notable effort to ensure that the inebriated patron arrived home safely.

However, Torres may adhere to the contemporary reasoning of the state court, which is only a natural corollary of a distributing trend in adjudication beginning in the early 1980s. The modern jurisprudence in Arizona addressing over-serving liability dates to Ontiveros v. Borak (1983). Ontiveros marks a distinct departure from  Common Law immunity:

“….At common law a liquor vendor was not in any way liable to an intoxicated customer who injured himself because of his condition, nor was he responsible for injuries to innocent third parties resulting from his inebriated patron’s negligent acts. (King, 1966,p.252)…”

The position before Ontiveros upheld by the Arizona courts affirmed the traditional Common Law interpretation. As evident in Pratt V. Daly (1940), were “… it was recognized both within and without Arizona that Pratt v. Daly had approved and adopted the common law rule of nonliability..” (para 9). Ontiveros effectively gutted the Common Law logic of protecting tavern owners from undue liability instances of over-serving intoxicated patrons. Although, the verdict in Ontiveros is easy to accept on purely rationalistic grounds; because the bar served the patron 30 beers!

A law professor at the University of Central Florida.,  F.E. Guerra-Pujol, brought it to my attention that we need the legal doctrine of proximate cause. In the absence of clearly defined limits on assessing liability, the chain of liability could stretch out infinitely. Unfortunately, unjustly assigning blame to distant actors in the “alcohol supply chain”. Under this logic, Torres might conflict with the proximate cause doctrine. After all, once the customer arrives home safely, why would the bar still hold any responsibility? In Torres, the intoxicated customer caused the accident after arriving at his residence. It may be fair to suggest that there was enough distance between the events to absolve JAI of liability from the stance of this doctrine. But this does not consider existing state statutes and previous in-state case law.

Op-Ed Piece: Torres v. JAI Dining Services

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Published by Pinal Central (Click Here)

Editor, Casa Grande Dispatch:

The Arizona Supreme Court’s recent decision Torres v. JAI Dining Services examines the issue of liability in the case of restaurants and bars over-serving alcoholic beverages. A patron of the Jaguar Club in Phoenix got ejected from the club after drinking for hours. He subsequently drove to his brother’s house to sober up and then was dropped off at his home. The intoxicated patron slept for approximately an hour before agreeing to drive his girlfriend home. Unfortunately, he was still inebriated when bringing his girlfriend home, striking a car, killing both occupants inside the vehicle. A jury rendered a verdict that the club and the driver were both liable for damages. JAI was able to get this ruling reversed by the Court of Appeals before the case reached the Arizona Supreme Court.

However, JAI attempted to challenge this ruling since the intoxicated patron arrived safely at his home and still decided to drive. JAI argued that it was similar to driving drunk after drinking at home. In an analogous case, Patterson v. Thunder Pass, the staff made adequate arrangements to ensure the drunk customer got home safely. JAI made no such arrangement; since the ruling Ontiveros v. Borak, state courts no longer recognize immunity from over-serving. Overall, the Supreme Court’s decision to overturn the Court of Appeals reversal on JAI’s liability was a good call.

Op-Ed Published: Water District Rates Arizona

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(Click here)

Editor, Casa Grande Dispatch:

The Arizona Supreme Court has finally settled the controversy regarding the legality of setting uniform rates for consolidated water districts in the October 2021 ruling Sun City Home Owners Ass’n v. Arizona Corp. Commission. The Sun City HOA claimed that the setting of uniform rate was an act of discriminatory pricing, violating Article 15, Section 12 of the Arizona Constitution. After being compared to the other communities serviced by EPCOR for municipal water services, Sun City has historically had some of the lowest operational costs. Most municipalities experienced a decrease in rates, while Sun City was the exception. The increase in the price of water service offsetting the cost to other communities functions as cross-subsidy.

The state Supreme Court did not rule in favor of the HOA, but there are further ethical and economic concerns to evaluate. For one, the rate-setting power conferred by the state Constitution (Article 15, Section 3) to the ACC mirrors the congressionally allotted privilege of chevron deference at the federal level. This judicial doctrine does differ from the powers allocated in the Arizona Constitution; chevron provides judicial power to bureaucratic agencies; in contrast, the state permits quasi-legislative authority, a rule-making power that is inappropriate for a bureaucratic agency to wield. Hence why we have a legislature. Economic exchange determines prices (the law of supply and demand) and not the edicts of lawmakers or bureaucratic agencies. Town governments and EPCOR need to negotiate the rates, not state agencies.

Prisoner’s Dilemmas- I: Gun Control in Arizona

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There is a battle brewing in Arizona. The municipal government of Tucson is looking to enact gun control ordinances that are contrary to Arizona state law. The city passed a resolution requiring federal gun laws to be followed within Tucson’s city limits.  From a superficial standpoint, this does not sound so radical. As any careful observer of the Arizona political scene can tell you this outright rebellion. Arizona has always been a very 2nd Amendment friendlily state. Back in April, Governor Doug Ducey signed HB 2111. The bill prevents any institutions from utilizing state resources or promulgating rules that violate state gun laws.

“…Specifies that pursuant to the sovereign authority of this state and Article II, Section 3, Constitution of Arizona, the state of Arizona and its political subdivisions are prohibited from utilizing any financial resources or state personnel to administer, cooperate with or enforce any law, act, order, rule, treaty or regulation of the federal government that is inconsistent with any law of this state regarding the regulation of firearms…”  (HB 2111).

Many outside spectators may view this measure by Arizona lawmakers a superfluous or even paranoid. Objectively, there has been a precipitous erosion of gun rights over the decades. Generally resulting from a tightening of federal gun regulations. One only needs to look towards the  Brady Handgun Violence Prevention Act (1994) and subsequent laws to see this pattern emerging. Although, most gun enthusiasts would most likely reason that this pattern emerged before 1994. However, this legislative game of red rover isn’t an illusion caused by the slippery-slope fallacy. It is also important to not frame the legislative encroachment of the 2nd Amendment as devolving into a frenzied conspiracy climaxing to a dystopian gun grab campaign.  

Arizona lawmakers not being quite so sanguine about the Biden administration’s respect for gun rights is understandable. Especially when you consider his platform regarding gun safety, which seeks to impose more restrictions. It is well known that the City of Tucson has been at odds with state gun laws for a while, being an uncharacteristically left-wing city in a conservative state. The state legislator fearing that Biden would tighten up federal gun regulations they drafted HB 2111, effectively making Arizona a “2nd Amendment Haven”. The state of Arizona is not alone in drafting us preemptive measures as several other states have drafted similar bills.

The officials of the City of Tucson have stated that if the state government intervened they would take it up with the federal courts.

“….Steve Kozachik, the councilman who introduced the resolution last month, said he believes the state’s sanctuary law to be unconstitutional. 

“Let them challenge us,” he told The Arizona Daily Star….” (Business Insider).

Insinuating that under the Supremacy Clause of the U.S. Constitution the city would have the higher ground from a legal standpoint. Because the Supremacy Clause states that federal law supersedes state law. Even the causal jurist knows that U.S. Law is complex and riddled with a plethora of loopholes. Holding such an axiom as unwavering is at best an overly simplistic interpretation of the law. It should be noted that the Supremacy Clause was intended to apply to the promulgation of laws in the scope of congress’s enumerated powers. After re-reading Article I, Section 8 several times, I simply could not find a sentence, never mind a paragraph conferring the power of formulating gun control laws to the federal government! Nevertheless, when Tucson petitions their complaint to the SCOTUS it will make for an entertaining case, to say the least.

It is important to remember that the state government does have a very compelling bargaining chip for negotiations. That is state tax dollars. The city of Tucson does receive a portion of tax revenue from the state (like most municipalities do), the state of Arizona could very well withhold these funds as a condition of noncompliance. It is estimated by going rogue on the gun issue, the city stands to lose “… half of its state shared revenue..”. The conflict here is the typical example of conflicting political interests at various layers of the political hierarchy. Mirroring the conflicts between the federal and state governments. Because both factions have divergent interests, rather than compromise both groups prefer fighting to the bitter death. Gun control like most wedge issues has a winner-take-all payoff. Primarily due to political polarization. However, losing ground policy-wise does turn into a slippery slope quickly. Incrementally evolving into long-term losses.  

Since the incentives structure is skewed towards winner-take-all payoffs, neither party can trust the other in the event of a compromise. Completely dispensing with any good faith bargaining; leaving logrolling off the table. This lack of good faith between the state government and the city of Tucson creates fertile ground for a Prisoner’s Dilemma. A Prisoner’s Dilemma is a concept in game theory where individuals working together could produce better results than working against one another. In certain situations, if both parties lack trust, they will defect and work against the other individual. Paradoxically, both actors would be better off if they worked in unison. If both Tucson and the state government brokered a deal with some carefully considered concessions, everyone would be happier. Instead, they both would rather hardball a gluttonous attempt to have all of their policy preferences fulfilled. Does nothing more than waste resources and generate more drama.

Bootleggers & Baptists-XVII: Dual-Licensing In Arizona

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Recreational Marijuana and Dual-Licensing

The legalization of recreational Marijuana has resulted in the proliferation of regulations and bureaus tasked with enforcing compliance with state laws. This promulgation of new rules has created new opportunities for “odd couple” political alliances to form. This has been seen in the myriad of grassroots initiatives for legalization and the street-level efforts to thwart the establishment of a legal recreational Cannabis market Now coalitions are being synthesized to debate the granular details of how Marijuana should be regulated. In many states where recreational Marijuana measures have passed, there is a notable amount of discretion giving to municipal governments. For example, the state of Alaska taxes Cannabis by the weight and maturity of the plant. State law even allows municipalities to apply their excise taxes on retail sales.

In the state of Arizona, Proposition 207 was passed in November 2020. Permitting the sales and use of Marijuana for recreational purposes. The parameters of the law gave lawmakers until April 5th, 2021 to formulate the rules governing the sales and use of recreational cannabis. Despite the state’s past hostility to Marijuana (1997 reversal of medical Marijuana), lawmakers ended getting everything squared away before the deadline. Legislators hostile to the bill could have easily dragged their feet in an attempt to sabotage the legalization effort. Perhaps the incentive of additional tax revenue in the form of a 16 % excise tax eased their concerns?

Proposition 207 also allows for cities and towns to create and enforce their regulations for the sales of recreational marijuana. As one could except not every community is thrilled by the idea of having a Marijuana dispensary in their town. Devising ordinances to either limit or outright prohibit recreational Cannabis sales within the city limits. One popular means of placing such restrictions on Marijuana sales is dual-licensing requirements. This entails that the establishment possesses a nonprofit medical Marijuana license and a “Marijuana establishment” license. Municipalities that do not want a dispensary in their town will simply generate an ordinance that reinforces the dual-licensing mandate. One prime example of this is ORDINANCE NO. 4949 in the city of Chandler (drafted by the city attorney’s office and the police department). See below from Ordinance #:4949:

11-17.3. Recreational marijuana retail establishments are prohibited. The operation of a recreational marijuana retail establishment is prohibited in Chandler. This prohibition does not apply to a dual licensee who is permitted by the State of Arizona to operate both a nonprofit medical marijuana dispensary and a recreational marijuana retail establishment at a single shared location. (P.3. Section I, 11-17.3).

However, it should be noted that Chandler already medical Marijuana dispensaries operating within the city limits before Prop. 207. This measure only serves to limit the volume of recreational sales rather than act as an outright prohibition. Whereas communities such as Maricopa, Arizona codifying mandates that limiting recreational sales of Marijuana to dual-license establishments is a circuitous form of prohibition. This is since Maricopa does not have any medical dispensaries within the boundaries of the town.

The Dual-Licensing Bootleggers and Baptists

As economist Bruce Yandle points out, in his seminal 1983 paper, interest groups may come together for a common goal even when they seem to have opposing interests. Solidifying the contingency for a Bootleggers and Baptist dynamic of political action. The Baptists provide the moral argument for the policy prescription. The Bootleggers support the initiative because they stand to benefit. The Baptists in the dual-licensing debate are quite salient. The Baptists are all of the individuals who want to impose regulations to restrict the sale of Marijuana in their hometown. Assigning the role of Baptist to actors that oppose recreational Marijuana sales is not a value judgment against cannabis. Rather they assume this role from their arguments stemming from a normative concern diverging from the direct promotion of self-interest. Their rhetoric typically mirrors the arguments used against the regulation of other forms of vice. Notable examples being casino gambling and prostitution. Arising from a concern of the “negative externalities” generated from legally permitting such establishments to exist (p.2). Moral opponents have long cited that casino gambling brings a criminal element to communities. This same argument is being revived for the Marijuana debate. As many pundits cite examples of criminal activity connected to the legal cannabis industry. The jury is still out on the veracity of this correlation. The typical appeals for maintaining social stability remain a mainstay in the Baptists’ anti-pot arsenal.

The policy of requiring recreational dispensaries to have two forms of licensing benefits an unlikely interest group, current Medical dispensaries. They already have an advantage to market entry through having one of the two required licenses. All these storefronts need to do is comply with the criterion to obtain one more permit and they can easily transition to selling both medical and recreational cannabis products. Another advantage they possess is familiarity with the licensing process in the state of Arizona. Where a new prospective business would have to jump through all these hoops to obtain both licenses and navigate the intricacies of Arizona’s licensing process with no prior experience. This can operate as a deterrent for potential entrepreneurs from entering the recreational market. Securing more business for the existing medical dispensaries.

Alternative Business Structures- Steps Towards a Stratified Market

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It appears as if the concept of a stratified market for legal services, may have a future in the state of Arizona. Well… sort of. Back in October 2020, the state legislature passed a measure that allows nonlawyers to own law firms and on a limited basis represent clients. This alteration to Arizona state law came in the form of ACJA 7-209 (Alternative Business Structures). It could be argued that the loosen of these restrictions have more benefits than drawbacks. Like most forms of occupational licensing, it does more to inhibit the interests of the consumer than it does advocate for it. Concerns linger about legal services being commodified, resulting in perverse incentives driving law firms rather than acting in accordance with the best interests of the clients. It has been cited that a firm owned by business interests would be ignorant of the “culture” encompassing legal services. Such as law firms heavy on investor input may not take up pro bono cases. Are these concerns of twisted incentives guiding investor founded law firm legitimate or merely perceptions facilitate by many of the fallacies implicit in anti-market bias. 

Does a founder of a tech firm needs a degree in Computer Science? Not necessarily. So why should be incredulous of the fact that a law firm is founded by a businessman? Yes, legal services do entail a lengthy array of ethical obligations that may not be required in other service professions. State law does mandate that at least one lawyer works at the firm for it to be legally recognized. That lawyer would be the influence guiding how to the legal philosophy of the business. The operative phrase in this sentence is business. Making it kind of absurd to preclude a seasoned entrepreneur with some insight into legal services from engaging in forming such an enterprise. Due to merely not having a degree and having based a state-sanctioned exam. Any shrewd businessman regardless of the law would hire on a consultant a knowledgeable consultant to help fine-tune operations. In the case of a law firm, it would probably be a veteran attorney. 

The qualms regarding a nonlawyer owned law firm not being privy to the “culture” of legal services is another perplexing criticism. Any proprietor in any service industry worth their weight in salt will “learn the rules of the game”. If you want to stay in business, you are going to have to become acclimated to the customs and norms of the industry. If not, under entrepreneurial natural selection, the business will fail. The successful law firms will be

self-selected through a process of consumer sovereignty. Those firms completely driven by an ethos of profit-above-all will crumble and be victims of their avarice. If the customer does not come first you cannot possibly succeed. Part of that would be adhering to customs such as pro bono cases for low-income clients. One only needs to briefly walk down the aisles of Costco to see that the concept of pro bono services hasn’t been lost on private industry. The mundane example of the omnipresent free samples of food. Some may argue that the scale of a free sample of salsa cannot compare to that of free legal services. They are both predicated on the same principle, reciprocity. Money comes and goes. Your pro bono bankruptcy today may be keeping you on retainer tomorrow once they hit the lottery. It makes business sense to sometimes give out free services. 

Some of the most puzzling critiques of this legislation revolve around allowing nonlawyers to represent clients in legal matters. Creating the potential of a subclass of legal work, paralegals can presents clients for “simple civil and criminal cases”. Hypothetically, creating a tiered market for legal services. Those who cannot afford to hire a bar accredited lawyer would have to settle for the more limited expertise of paralegal. Forming the foundation for an archetypical socio-economic objection to this policy. This ignores the fact that this greatly benefits economically disadvantaged defendants and paralegals. If an individual is accused of a crime and cannot afford a reputable lawyer they either must represent themselves or be provided a bottom-rung public defender. Hiring the paralegal at a rate lower than that of an accredited lawyer is a far superior option than the public defender or self-representation. A well-trained and diligent paralegal is vastly superior to self-representation. Odds are the paralegal has a much stronger command of the law than the defendant. The paralegal also is a better option than the public defender. Public defenders have a  reputation for providing low-quality legal services. They are often overworked and earn significantly less than the average lawyer. Given the incentive structure of a public defender, enlisting their help in legal matters is a recipe for subpar results. No one who is underpaid and overworked is going to have the drive to overachieve. A wide-eyed and quixotic recent law school graduate may be eager to join the fight to represent the economically dispossessed. After years of stress, low pay, and disenchantment with bureaucratic institutions and humanity could make even the most bleeding-heart crusader jaded. In contrast, a paralegal providing legal representation would most likely do so as a side-job. Undertaking such a “gig” to supplement their regular income could be viewed as advantageous. Versus the public defender drowning in law school debt and disillusionment.

Placing tight restrictions on who can provide legal services is nothing more than a broad form of occupational licensing. Occupational licensing gives the initial impression of protecting the best interests of the consumer. In theory, limiting who can practice law is intended to shield the customer from the consequences of malfeasance. It limits the pool of representatives the poor can hire for legal defense. It also reduces opportunities for paralegals to earn some side cash. It outright eliminates the potential to gain some hands-on experience if they one day aspire to become a lawyer.

Do We Need Laws to Force Us to Wear Masks?

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Ever since the number of COVID-19 cases began to grow in the United States the debate over whether to mandate wearing masks in public has raged on. Frequently devolving into a debate over political ideology rather than a discourse based on hard science. Naturally, those who believe mask-wearing to be an effective precaution against spreading the virus favor compulsory laws enforcing this practice in public. However, could it be possible that people still opt to take precautionary measures even in the absence of fine or other penalties? Better yet, couldn’t owners of private institutions such as stores, restaurants, and entertainment venues implement their preventive measures as conditions of patronizing their establishment? After all, the incentives are present to want to avoid any unnecessary risks and to keep their customers healthy to ensure a steady stream of business in these uncertain times.

In the state of Arizona, the issue of mask-wearing mandates has been left up to the local governments.  Most municipalities have opted to require masks while occupying indoor venues at the risk of facing a hefty fine. Back in June the city of Phoenix purposed a $250.00 for individuals repeatedly refusing to wear a mask. The suburb of Chandler, Arizona imposes a fine of $100.00 or 30 days in jail for mask-related infractions. Residents and visitors in the towns and cities located in Pinal County are not subject to mask requirements but are strongly encouraged to wear masks. One would assume that in these communities that are immune from such restrictions that the image of bare-faced shoppers must be a ubiquitous scene in the local grocery store. Such an assumption would be incorrect.

Even in the absence of formal constraints, most stores require that all customers wear masks. Generally, posting a sign on the front door forewarning prospective patrons of this precondition. Not only are the stores and eateries of the communities of towns such as Maricopa, Casa Grande, and so on filled with mask-wearing customers, but many establishments are taking measures not required by any municipality in the state. Employees are constantly cleaning. The local grocery store has never looked more pristine. Frankly, many of these changes in the cleaning and sanitizing schedules of the local business are long overdue. These shrewd business owners are proactively responding to the potential concerns of their clients. Anticipating that customers may avoid doing business if masks are at their brick-and-mortar location they have elected to require masks. In addition to urging patrons to wear masks, they also are making concentrated efforts to increase sanitation efforts. Even placing markers indicating the presence of six-foot gaps to maintain social distancing. The smell of bleach and other disinfectant products fill the entryway of the grocery stores. The local Walmart is even wiping down and sanitizing the carts! A sight that few would have ever predicted a year ago. All these preventive steps are taken without any laws, penalties, or ordinances. Completely implemented through apolitical channels.  

This micro-level self-governance on the part of local business propitiators and franchisees demonstrates the power of profit and loss mechanisms. Due to the business owners having a stake in the company they own and operate it is in their best interest to put the customers first. If the customers are comfortable, happy, and healthy it will be mutually beneficial for both parties. The customer will continue to obtain the goods and services they need and want. Simultaneously, the stores and restaurants will continue to receive business which will keep them afloat. Establishments that are insensitive to the needs of their customers will invariably see a dip in sales. This would hold even if we were not amid a pandemic. The entrepreneur must adapt to the present climate. That may mean investing in more cleaning supplies and sanctioning mask-wearing requirements for their establishment. Business proprietors who do not respond to customer concerns about the virus will be effectively punished by market forces. Through a sullied reputation, lackluster sales, and even insolvency. While constrained by federal, state, and local laws business owners by their possession of the enterprise still retain an immense amount of authority to create the rules governing their store. Having the ability to formulate the policies that govern the direction of the business enables them to better serve their customers. Displaying how to profit loss mechanisms can direct precautionary measures even in the absence of laws.

Business proprietors responding to these market pressures is an example of polycentric decision-making.  A system where multiple “decision-making units” with some degree of independent action subscribing to the same set of rules. Filtering the development of safety measures through the government attempts to use a one-size-fits-all approach to the pandemic. Whereas, individual shop owners can tailor their precautions to the specific concerns of their regular customers. Versus obtusely applying rules that may not even be effective or pertinent to how COVID-19 is impacting the region. Direct customer input about the absurdity of funneling customer traffic through two entries instead of three, can be an example of ground-level adjustments that can be made through business owner governed safety procedures when compared to those that are government-sanctioned. Avoiding the red tape and lethargic process of passing legislation or town ordinances provides fluidity that is necessary in dynamic times. A fluidity that is lost in the typical overarching and top-down approaches that are generally favored in regulations.  

Those cynical of the arguments that favor market pressure over formal regulation underestimates the power of the invisible hand. In jurisdictions where there are no regulations in forcing mask-wearing store owners not only require masks but are going the extra mile to ensure sanitary conditions for their customers. Most skeptical of the market being able to push such strives towards private solutions to the COVID-19 outbreak tend to cite avarice on the part of business owners. Without formal regulations, most will skimp on investing in extra precautionary measures due to the additional cost of enacting such changes. The willingness to make such changes is what separates a prudent businessperson from a fool.  The long-run profits from investing more in meeting alleviating the concerns of your customers will quickly outpace the minor cost.  Making a refusal to independently adjust to these changes shortsighted.

How to Quantify Indian Water Entitlements: A Lesson From the Ak-Chin Tribe

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One controversy that continues to afflict Indian water rights is that the Winters Doctrine does not provide clear quantifiable limits of water usage entitled to Native tribes.  Typically, legally define water usage limitations by survey and legal recognition is an extremely costly route to take for the tribes (p.286).  The most economical route tends to be through negotiations, administrative action, or legislation (p.286). One such example of this was the Ak-Chin tribe located approximately an hour south of Phoenix, Arizona. Ultimately, resulting in the development of the Public Law 95-328 (1978).

This law was spurred by the drastic decrease in the water table for the Ak-Chin reservation. This being something a substantial blow to the community as at the time they were primarily an agricultural-based economy. It was found that this decline in the water table was the result of the federal government failing to “prevent the mining of groundwater”. Due to this abdication of duty on the part of the U.S. Government, it was held liable to build a spring well and delivery apparatus from federal lands to meet the required amount of water entitled to the tribe through Winters Rights. The law set in motion that an interim supply of water is provided by 1984. That a permanent supply is allocated by no later than 2003 (p.6). The provision of water would be supplied through the Central Arizona Project Aqueduct (p.6). This has resulted in the Ak-Chin tribe expanding their” irrigated agriculture by 10,000 acres” resulting in an improvement in economic conditions on the reservation by 1991 (p.13). Because of the 1978 act and 1984 amendment. By 1993, the tribe had next to no unemployment and no social services expenditures (p.3).

The 1984 amendment provided more than just the interim supply of water needed for cultivation purposes. $15 million was provided for purposes of obtaining usable water. $ 28.7 million was also transferred to the tribe for economic development. The date for the permanent supply of water shifted to 1988 (p. 7).  The amendment expanded water consumption entitlement to “75,000 and 85,000 acre-feet, depending on precipitation levels each year (p.8). This amendment was deemed controversial at the time because it reallocated unused water from the Gila River Project to tribe versus “other state appropriators ” (p.8).

Then came the 1992 amendment to the water activities for the Ak-Chin Tribe. This amendment allowed off-reservation leasing of the Ak-Chin water supply. Considering the ever-evolving nature of American Indian Law there was then the 2000 amendment. Designed to provide great clarity on leasing requirements for Ak-Chin water. Manifesting itself in S. 1913- Ak-Chin Water Use Amendment Act of 1999.

SEC. 2. TECHNICAL AMENDMENTS TO AK-CHIN WATER USE ACT OF 1984.

    (a) Short Title.–This section may be cited as the “Ak-Chin Water

Use Amendments Act of 1999”.

    (b) Authorization of Use of Water.–Section 2(j) of the Act of

October 19, 1984 (Public Law 98-530; 98 Stat. 2698) is amended to read

as follows:

    “(j)(1) The Ak-Chin Indian Community (hereafter in this subsection

referred to as the `Community’) shall have the right to devote the

permanent water supply provided for by this Act to any use, including

agricultural, municipal, industrial, commercial, mining, recreational,

or other beneficial use, in the areas initially designated as the

Pinal, Phoenix, and Tucson Active Management Areas pursuant to the

Arizona Groundwater Management Act of 1980, laws 1980, fourth special

session, chapter 1. The Community is authorized to lease or enter into

options to lease, to renew options to lease, to extend the initial

terms of leases for the same or a lesser term as the initial term of

the lease, to renew leases for the same or a lesser term as the initial

term of the lease, to exchange or temporarily dispose of water to which

it is entitled for the beneficial use in the areas initially designated

as the Pinal, Phoenix, and Tucson Active Management Areas pursuant to

the Arizona Groundwater Management Act of 1980, laws 1980, fourth

special session, chapter 1.

    “(2) Notwithstanding paragraph (1), the initial term of any lease

entered into under this subsection shall not exceed 100 years and the

Community may not permanently alienate any water right. In the event

the Community leases, enters into an option to lease, renews an option

to lease, extends a lease, renews a lease, or exchanges or temporarily

disposes of water, such action shall only be valid pursuant to a

contract that has been accepted and ratified by a resolution of the Ak-

Chin Indian Community Council and approved and executed by the

Secretary.”.

    (c) Approval of Lease and Amendment of Lease.–The option and lease

agreement among the Ak-Chin Indian Community, the United States, and

Del Webb Corporation, dated as of December 14, 1996, and the Amendment

Number One thereto among the Ak-Chin Indian Community, the United

States, and Del Webb Corporation, dated as of January 7, 1999, are

hereby ratified and approved. The Secretary of the Interior is hereby

authorized and directed to execute Amendment Number One, and the

restated agreement as provided for in Amendment Number One, not later

than 60 days after the date of the enactment of this Act.

                                

Ballot Access Laws in Arizona Are Too Strict

 

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Authors Note: This a Draft for An Op-Ed piece. Please feel free to provide candid feedback.

 

 

Many Americans are displeased with the present state of American politics. Much of this dissatisfaction is spurred by being limited to the narrow choice between two parties. Per a 2017  Gallup poll, 61 % of participants surveyed expressed that a third-party is a much-needed alternative to the present Republican/Democrat paradigm. While the idea of promising contender to the DNC/GOP establishment may receive quite a bit of fanfare from average voters that does not mean that such political force will be a reality. Unfortunately, countless third-party and independent candidates have been kept off the ballot by stringent ballot access requirements. Historically, as ballot access laws have become more rigorous the number of minor party candidates has decreased.  Effectively confining the number of choices available to the American voter.

The bulk of the prohibitive ballot access requirements that third-party candidates are subjected to are passed at the state level. Over the past couple of years, Arizona has consistently ranked among the states with the most onerous requirements. Especially after passing Bill HB 2608 back in 2015 which expanded signature requirements for a candidate to appear on the ballot, under ARS 16-322. This revision has been particularly burdensome to the Libertarian Party, which is arguably the strongest third-party contender in the state. Even when the Libertarian Party attempted to challenge the law in 2019 the Supreme  Court sided with the state. Concluding:

 

“… state’s signature   requirements   are   reasonable   restrictions   that   impose, at most, a modest burden on the Libertarian Party’s First and Fourteenth Amendment rights, while directly advancing Arizona’s  important  regulatory  interest…”

 

The Supreme Court also rejected the Libertarian Party’s 2020 appeal to contest the law. Leaving Arizona’s hopes of breaking up the present duopoly on politics in shambles. The prime culprit appears to be the 2015 revision to ballot access requirements which solidifies the current two-party dynamic. These restrictions should be eliminated because they fail to protect the voter, designed to target prevalent minor parties and impose direct violations on the First Amendment rights of voters and candidates.

 

Ballot Access Laws Fails to Protect the Voter:

 

The main arguments for stricter ballot access requirements tend to be shielding voters from confusion, ballot overcrowding, frivolous candidacies, and political stability. Historically, ballot overcrowding has never been cited as a direct reason for increasing signature requirements. Before the 1930s minor parties had very “lenient” access to the ballot in the majority of states. Even with lower barriers to entry the calamities of voter confusion and rampant frivolous candidacies seemed to be virtually nonexistent. Typically are issues that will be invariably sorted out by voter preferences. In the unlikely event of confusion, voters will levitate towards parties and policies they are familiar with. Candidates lacking strong convictions and direction will generally have potential votes re-direct towards another candidate. It is quite clear that these concerns are not pitfalls that the government must insulate the average citizen from. Especially, when most ballot access restrictions imposed by the state government tend to also exclude legitimate candidates.  These problematic quirks of liberal ballot access can easily be resolved by the voters themselves.

The second category of the aspiring purposes of ballot access laws is to protect voters from political instability. Preventing “unconstrained factionalism” from eroding the political stability of the country. Undermining the steady nature of a two-party system which interrupts the proliferation of splinter factions. The more probable side of the political stability argument suggests that it would help prevent indecisive elections. Through directing votes to one of two prominent parties it will help reduce the odds of a stalemate. Whereas dividing votes between three or more parties would increase the probability of this issue be prevalent. This argument is flimsy at best because indecisive elections were not a common problem before the restrictive ballot access laws of the 1930s. Beyond the evidence of history, Public choice theory also demonstrates how accessible ballot access will not compromise political stability. The country being splintered into a multitude of quarreling factions is unlikely, per the Median voter theorem to win an election you need to aim for the center. There are only so many unique ideologies that can be formulated that are not so extreme that it philosophically alienates moderate voters. Putting an informal constraint on the speculated “electoral chaos” that would ensue from looser ballot access restrictions.

 

Ballot Access Laws Are Designed for the Benefit of the Major Parties

 

There is also some evidence to suggest that ballot access laws are catered to benefit the existing mainstay parties.  The United States has had ballot access laws since 1888. The proliferation of strict ballot access requirements did occur until the 1930s and was generally perceived as a means of prohibiting members of the Communist Party from running for elected office.  These tactics over the years have been applied to other minor parties once state governments realized that manipulating signature requirements proved to be an effective means of keeping third-party candidates off of the ballot. For example, back in 1995, the state of Alabama tripled the signature requirements to appear on the ballot. This was a direct result of the Patriot Party diverting votes that would have otherwise gone to a Democratic candidate. Third-parties have achieved some modest victories in court against unjust ballot access laws. Such as in Burdick v. Takushi (1992) where Hawaii’s ban on write-in candidates on elections ballots was ruled as unconstitutional. However, generally, the courts rule against the complaints of third-party candidates. Simultaneously the courts tend to minimize the Constitutional concerns of third-party candidates. Demonstrating that the institutional barriers to the ballot box are sealed with the blessing of the Supreme Court. As evident in the  2019 ruling of  Arizona Libertarian Party v. Hobbes.

One glaring fact that often gets ignored is that the majority of ballot access laws have been formulated by legislators who are affiliated with one of the major parties.  This presents an unfortunate conflict of interest, as this brings into question the motives of passing such laws.  Therefore, making it difficult to determine whether these laws are being passed for the benefit of the voter or the callous self-interest of those involved in politics. Creating an internal lever for our elected lawmakers to preserve their influence in state politics. Solidifying this potential rationale for passing  HB 2608 (2015) has been the commentary of a publicly known affiliate of the Republican party. Insinuating that the Libertarian Party has been siphoning votes away from the GOP.  This individual stated quote: “I can’t believe we wouldn’t see the benefit of this”.

 

This statement implies that increasing the signature requirements was not done to foster political stability or reduce ballot overcrowding. Rather, it was passed to aid Republicans in retaining political influence in Arizona.

 

 

Strict Ballot Access Requirements Encroach Upon the First Amendment:

 

               

Strict ballot access requirements present some unique challenges to the First Amendment that often are unscored in many of the Supreme Court decisions. Per the revised signature requirements in Arizona, the Libertarian Party would require to obtain petition signatures from nonparty members. Viewed by the party’s attorney in their 2019 case as a violation of free association protected under the First Amendment. While the free association argument is a valid concern, it is an only peripheral concern. Above all, voting is a form of free expression.  The courts typically ignore the expressive function of voting, however, it is a form of speech that should be protected.  A vote can serve as a form of protest, a vote can reflect a certain philosophical point-of-view.  The market-place of ideas may lack tangible currency; however, the value of ideas can always be quantified by the will of the voters.  A mere vote can convey so much more than a constituent preferred candidate. It is generally a representation of a set of ideas, which can be symbolic or literal. Keeping third-party candidates off the ballot effectively limits the variety of forms of self-expression allotted to the voter. Operating as a circuitous form of censorship.

Imposing burdensome ballot access requirements not only limits the free speech of voters, but also the First Amendment rights of candidates. Campaign platforms present specific positions on issues that undoubtedly serves as an expressive function. Lending itself to be interpreted as a protected form of speech.  Third-parties have been invaluable for presenting novel perspectives on policy issues.  For instance, the  Liberty Party that formed in the 1840s brought the abolition movement to the table when most major parties refused to entertain ending slavery. Even in the modern era, the candidacy of Ross Perot for the Reform Party back in the 1990s presented alternative views that were invaluable to public discourse. Such as Perot being one of the few aspiring presidential candidates critical of the NAFTA agreement.  Perot reminding us of the virtue of balanced budgets. Through keeping minor party candidates off the ballot, we are in-turn we are limiting the variety of opinions in public discourse. This is nothing more than a legally sanctioned form of de-platforming.

 

Conclusion:

 

                A significant number of voters may be frustrated with the current two-party duopoly on American politics. Little can be done if prohibitive ballot access laws work to keep third-party candidates off the ballot.  These laws do not protect voters, nor do they secure our political institutions. Seemingly existing to keep the status quo intact with few substantive arguments soundly justifying such measures. Until the Supreme Court starts taking the constitutional concerns of minor parties seriously, the two-party system will remain.  It would foolish to expect the Republican and Democratic state legislators to repeal laws that serve their interests.

Bill HB 2608- Third Party Ballot Access in Arizona

 

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Bill HB 2608 is nothing more than a thinly veiled ploy to keep third-party candidates off the ballot. The bill passed back in 2015 greatly increased the required of signatures for nomination. Meeting the qualifying numbers would surely be a breeze for Republican and even Democratic contenders. What about Libertarians or even aspiring candidates in the Green Party? This measure effectively narrows the scope of options to the two main parties.

 

The greater of two evils is still evil. Overall, this bill was a calculated move by the Republican party. Some pundits have even pointed to this piece legislation as a countermeasure addressing Libertarians siphoning votes from the GOP. Clearly demonstrating the incentives behind passing HB 2608, retaining power. The Republicans have their tentacles firmly wrapped around the populated central region of the state. Democrats have their strongholds in Flagstaff and Tucson. Apparently, there isn’t any room in Arizona for a third option. Not necessarily by choice by rather by design. Making the whole notion of “democracy” questionable at best. For the Republican party to feel threatened by Libertarians is absurd and bordering on paranoia.

 

For an effective democracy to exist we need more than two questionable choices on the ballot.  Granted, most political parties on the fringes are about as organized a clown car traffic accident. Let these candidates fail on their own merits versus being stopped by institutional barriers. Especially when the motives for erecting these barriers are shamelessly opportunistic.

Writing to Local Politicians- Qualified Immunity

 

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Author’s Note: This will be the last blog entry concerning Qualified Immunity for awhile. I don’t want my blog to become too stagnate so I will reconvene on this topic at a later date.  If you wish to learn more about  Qualified Immunity or stay on top of the latest developments I would recommend visiting the Unjust Shield blog.  This essay was a letter sent to several Arizona representatives requesting that they assist in the effort to abolish QI. This political luminaries included: Mark Finchem, Vince Leach, Martha McSally, and Kyrsten Sinema.

 

June 25th, 2020

Peter Clark

peterclark7979@gmail.com

The Honorable (Insert name here).

 

 

Dear Representative (Insert name here)

 

 

The death of George Floyd has ignited a renewed interest in policing reform.  Purposed reform measures have ranged from increasing training requirements to dissolving police departments. I would personally suggest eliminating one of the institutional protections that shield negligent police officers from accountability, Qualified Immunity. A legal doctrine originally intended to protect government employees from being sued for performing essential job functions, providing their actions do not violate any well-established rights. Unfortunately, this protection is slowly starting to become a form of absolute immunity. Per the 2018 paper by the University of Chicago legal professor William Baude the Supreme Court general overturns instances where the lower courts deny Qualified Immunity to police officers. Demonstrating the failure of the checks-and-balances on this legal privilege. This matter is only exasperated by the Supreme Court’s decision last week to refuse to reconsider this legal doctrine.

 

 

The innumerable examples of officers that have clearly violated the rights of American citizens and are still granted Qualified Immunity are horrifying. In the case of Baxter V. Bracey (2014) a suspect was attacked by a police dog after having surrendered to the arresting officers. There was the case of Jessop v. Fresno where officers stole rare coins and cash totaling over $225,000.00 during a search of a private residence.  In the case of Mullenix v. Luna (2010) where the officer performed a dangerous maneuver that he had no previous training to stop a high-speed chase. In any other occupation not only would the employee be fired, but in most cases be held liable for damages in the event of a lawsuit. If arresting officers were cognizant of the fact that they could be sued, wouldn’t they be less inclined to take risks? To adequately tackle such examples of negligence incentives, need to be realigned.  Qualified Immunity creates such a sturdy safety net for police officers that either consciously or subconsciously take this legal protection for granted. This leads to the above-described examples of malfeasance.

 

As any reasonable person can tell you defunding the police or dissolving police departments is not a realistic solution. It is practically infeasible and tantamount to political suicide. Instead of abolishing the institution, it is best to implement checks-and-balances. Rather than construct bureaucratic and legal safeguards that insulate civil servants from the consequences of gross ineptitude. Whether that be through criminal prosecution or Tort law. The best way to start would be by eliminating Qualified Immunity. I respectfully ask that you support any initiative on the state level to help abolish this problematic legal privilege. Qualified Immunity is recognized in Arizona law under ARS 36-738.

 

Sincerely,

 

Peter Clark

 

 

 

 

Bootleggers and Baptists Part V: Occupational Licensing- Arizona Edition

 

therapist giving advice
Photo by Polina Zimmerman on Pexels.com

 

 

Introduction:

 

The policy of requiring occupational licensing for various jobs is billed by consumer protection advocates as a matter of health and safety. This perspective ignores the economic consequence of occupational licensing. The fact that in most cases such a restriction does not improve consumer safety, but merely operates as a barrier to entry in the market. Too often disproportionately impacting employees of lower socioeconomic status. Even preventing start-up businesses from laying any roots in industries that have licensing requirements that favor established enterprises. It is estimated that approximately 25 %of all jobs require some form of licensing. Is it really necessary to require barbers to obtain licensing to competently do their jobs?

 

It is always important to question who stands to benefit from the consequences of a specific policy.  This imperative inquiry illustrated in Bruce Yandle’s economic theory of  Bootleggers and Baptists. This conceptualization demonstrates the contrarian dynamics of advocacy for regulation. Frequently unlikely alliances are forged for the sake of regulation advocacy. Generally, one interest group has a moral or ethical agenda (the baptists). The other half of this coalition tends to utilize the moral agenda as a smoke-screen to obscure how the policy benefits them (the bootleggers). Detailing the irony of how seemingly opposing forces can often come together on a single issue.

 

Occupational licensing much like other issues that bring together unlike factions creates a similar dynamic. The moral advocates are concerned about protecting the average consumer from dangerous products and services. As well as the self-interested bootleggers who strive to reduce competition.

 

The Story of Dr. Carol Gandolfo:

 

Psychologist Carol Gandolfo moved to Arizona from California back in 2007. Due to her lack of in-state licensing, she continued to manage her California-based practice remotely.  She also served as an expert volunteer for various in-state organizations, such as the Northern Arizona Critical Incident Stress Management team. The same organization that provided therapeutic services for the surviving first-responders present at the 2013 Yarnell Hill Fire.  Dr. Gandolfo was a 20-year veteran of the field of psychology and had extensive training and experience working with prisoners, homeless shelters, private practice, and even those with developmental challenges. The only obstacle preventing her from practicing in Arizona was the state’s psychology licensing board.

 

In 2019, there appeared to be light at the end of the tunnel. Governor Doug Ducey working with the Goldwater Institute developed a bill that would universally recognize out-of-state licensing. The bill that went into effect August of 2019 was HB2569. While the bill does not automatically recognize out-of-state licensing, it still eliminates many of the steps required to start the process from scratch. HB2569 makes Arizona the first state to recognize out of state licensing. Anyone familiar with Arizona’s demographics can see why licensing reciprocity is crucial for the state economy. The population of Arizona is primarily comprised of out-of-state transplants. Most of the domestic migrants coming from western coastal states or the economically depressed Midwestern rust-belt. It was estimated back in 2014, that only 38% of Arizona residents were born in-state. That 15 % of all Arizona residents were born in foreign countries. Considering the number of people moving to Arizona, a universal recognition bill would be sensible.

 

However, even after the bill passed Dr. Gandolfo still was struggling with the licensing board. In November 2019, the board rejected Gandolfo’s application for licensing. The board cited two reasons for this 5 to 1 vote to deny Gandolfo the right to practice in Arizona. The first reason was she had lived in the state for too long. Even though no such constraints were specified in HB2569. Governor Ducey even criticized the board’s decision to reject her application on these grounds.

This gamesmanship by some Board members falls far below the standard expected of Board members,” Ducey wrote.

 

The second issue was the institution from which Gandolfo earned her PsyD back in 1998. Ryokan College which was determined by the board to not be regionally accredited. The board even suggested that it would be reasonable to investigate whether her volunteer work and practice in California violated state law.

 

Bootleggers  and Baptists:

 

The bootleggers in this scenario would be the psychologists who were certified in-state. Advocacy by these individuals for rejecting measures such as HB2569 is nothing more than domestic protectionism. Attempting to keep the flood of psychologists coming from states such as California out of the Arizona market. Any attempt to claim that Arizona has higher standards for licensing is flimsy at best. Arizona has licensing procedures that mirror the standards held in California. The only rational explanation for psychologists in Arizona to pose opposition to HB2569 would be fear of an increase in competition.

 

It is difficult to say who the baptists are in advocating for rejecting universal recognition of out-of-state licensing. Please keep in mind the members of the licensing board are licensed, psychologist. For the sake of argument,  I will assign the role of baptists to the licensing board members. There does seem to be a prevalent argument on their end about the quality of mental health services. To quote one of the board members:

“Arizona has now said that the standards to become a psychologist in this state are now equivalent to the lowest common denominator in the jurisdictions across the country,”

 

This premise is only valid if the practitioner is indeed coming from a state with lower standards. Also, this statement alone provides a moral justification for keeping out-of-state psychologists out of the Arizona market. The residents of Arizona need to be protected from subpar mental health services. At least in the view of the quoted board member. This moral repudiation of  HB2569 does not convey any facts or figures. Nor any search suggesting that the standards of states outside of Arizona lead to inferior results. Making these claims suspect.

 

 

The Unpublished Letter to the Editor (QI)

 

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Author’s Note: I submitted this piece to several local newspaper outlets. It appears as if none of these establishments have elected to publish my brief essay. It is possible that the my writing is a little weak. Even the topic is too technical or controversial.

I still applaud myself for attempting to take this on this issue in only 200-250 words ( Pinal Central: limit of 250 worded. AZCentral: limit of 200 words). This maybe a lesson to avoid issues that are overly complex when writing a letter to the local newspaper. Qualified Immunity requires more than 250 words to be properly addressed. I even had to cut references to William Baude’s 2018 paper on the subject.

That doesn’t  mean I have given up, there is another local publication that publishes longer form editorials.  After that I might give QI a rest, as I don’t want the content on  this blog to become to stagnant.

The top photo has nothing to do with the topic at hand. The free photo application   on WordPress was giving me some issues. So I decided to upload this photo I took back in April. I was walking my dogs around the neighborhood and thought the painted rock was interesting.

 

Editorial:

 

Dear Editor,

The death of George Floyd has left Americans with many questions. How did the police officer that killed Mr. Floyd still have a job after 17 previous complaints? How do we as a country combat police brutality? One potential solution may come from Representative Amash’s proposal to abolish Qualified Immunity. What is Qualified Immunity? It is a legal doctrine that protects government employees from being sued for performing essential job functions. Providing their actions do not violate any well-established rights.

 

The modern application of this legal status was defined by Harlow v. Fitzgerald (1982). Establishing the need for clear “statutory” evidence that the plaintiff’s rights have been violated. Eventually evolving into the requirement for a previous case in which the details of the violation are identical. Leading to instances of constitutional violations with no restitution. One glaring example, Baxter V. Bracey (2014), where the suspect was attacked by a police dog after surrendering. These strict requirements make it nearly impossible to seek proper recourse when our civil rights have been infringed upon.

 

Most police officers are decent and law-abiding. Few would ever dream of using cruel or unnecessary tactics to subdue a suspect. The minority of bad cops need to be held fully accountable for their actions. The best way to do so would be eliminating institutional barriers to punishment.