Mediaboss Marketing

Twelve years from the third amendment of Chinas patent law, the fourth amendment was approved by the Standing Committee of the National People's Congress on October 17, 2020. The new amendment will take effect on June 1, 2021. This article provides a detailed review of the changes from the current patent law.

1. Enhanced Protection of Patent Rights

The first aspect of changes relates to enhanced protection of patent rights. Specifically, it includes punitive damages, increased statutory damage, reversed burden of proof, increased fine for passingoff, and extended time limit for initiating litigation.

(1) Punitive Damages and Increased Statutory Damage

Under the current patent law, the concepts of willful infringement and associated punitive damages are not available. These are included in Article 71 of the fourth amendment of the patent law. Specifically, for willful infringement on a patent right, if the circumstance is serious, the amount of damages may be increased up to five times of the calculated damages. The amount of damages for patent right infringement shall be determined by trying the following methods in the following order. First, the amount of damages may be determined according to the patentee's actual losses caused by the infringement or the benefits acquired by the infringer through the infringement. Where it is difficult to determine the losses of the patentee or the benefits acquired by the infringer, the amount of damages may be determined according to the reasonably multiples of the royalties of that patent. It is to be noted that compared with the current provisions, Article 71 slightly revised the order of the methods for calculating damages that should be used. Either the patentees actual losses or the benefits acquired by the infringer can be used first, whereas the current law requires that the actual losses must be tried first.

If it is difficult to determine the losses of the patentee, benefits of the infringer, or royalties of the patent, the people's court may, on the basis of the factors such as the type of patent right, nature of the infringement, and seriousness of the case, determine the amount of compensation within the range from RMB30,000 to RMB5,000,000 (US$4,500 to US$750,000). This is referred to as statutory damage and its lower and upper limits are respectively raised to 3 times and 5 times of the current ones.

(2) Reversed Burden of Proof

One of the biggest difficulties faced by a patent right holder in a patent infringement law suit in China is the lack of discovery. It is often the case that infringement is found but there is no good evidence to calculate damages as the evidence is in the possession of the defendant.

To deal with this problem, Article 71 of the fourth amendment of the patent law provides where the right holder has tried his best to provide evidence but the account book and materials related to the infringement are mainly in the possession of the infringer, in order to determine the amount of damages, the peoples court may order the infringer to provide the account book and materials related to the infringement acts.

Where the infringer fails to provide the account book or materials or provide fake account book or materials, the peoples court may determine the amount of damages based on the claim made and the evidence provided by the right holder. It follows that the plaintiff may want to claim high when launching an infringement law suit. However, one factor that needs to be considered is that the court fees are related to the amount at stake. Even if China does not have a loserpay system, i.e. the losing party does not need to cover the cost of the winning party in a law suit, overclaiming increases the risk of having to pay higher court fees if the plaintiff does not win the case.

The punitive damages and the increased statutory damages, together with the reversed burden of proof for calculating damages are likely to significantly increase the amount of damages awarded in future patent infringement cases in China, which will create greater deterrence to potential infringers.

(3) Increased Fine for PassingOff

Patent passingoff can be generally understood as fraud, such as false patent marking. Article 68 of the fourth amendment provides that when handling a patent passingoff case, a patent enforcement authority can confiscate the illegal gains of the party who passes off a patent and, in addition, impose a fine of not more than five times the illegal gain, which is increased from the current limit of four times of the illegal gain. In case there is no illegal gain or the illegal gain is less than RMB50,000 (US$7,500), a patent enforcement authority may impose a fine of up to RMB250,000 (US$37,500). It is to be noted that the fine is a type of punishment on the party who passes off a patent but the patent right holder will not gain any financial benefit from the fine. Of course, in addition to confiscation and fine, the party who passes off a patent also has to bear civil liability, e.g. compensation to the patent right holder.

According to the current patent law, when a patent enforcement authority investigates and handles the suspected passingoff of a patent, it may, based on evidence obtained, (1) inquire the parties concerned and investigate the circumstances related to the suspected illegal act; (2) conduct onsite inspection of the places where the suspected illegal act is committed; (3) review and duplicate the relevant contracts, invoices, account books and other related materials; (4) inspect the products related to the suspected illegal act; and (5) seal or confiscate the products which pass off the patent.

In China, a patent right holder can enforce a patent right through judicial route, i.e. peoples court or administrative route, e.g. local IP offices. However, local IP offices power to review and duplicate the relevant contracts, invoices, account books and other related materials and to seal or confiscate the products which pass off the patent, as mentioned above, is limited to patent passingoff cases only. The fourth amendment of the patent law still does not give local IP offices such power in handling patent infringement cases.

(4) Extended Time limit for Initiating Litigation

According to Article 74 of the fourth amendment of the patent law, the time limit for taking legal action against patent right infringement was extended from two years to three years, commencing from the date when the patentee or interested party knows or should have known of the infringing activity and the infringer. Similarly, if a patentee wants to sue another party for compensation during the period from the publication of the invention patent application to the grant of the patent right, the time limit for taking legal action is also extended from two years to three years, commencing from the date when the patentee knows or should have known of the use of the patent by that other party. However, the time limit shall commence from the date when the patent right is granted, if the patentee knows or should have known of the use before the patent right is granted.

2. A More Friendly Design Practice

In the fourth amendment, the second aspect of changes from the current patent law relates to design patent practice. Specifically, it includes extended patent term for design, allowance of partial design and possibility of claiming domestic priority for design applications.

According to Article 42 of the fourth amendment of the patent law, the term of a design patent shall be 15 years, extended from 10 years as prescribed in the current patent law. It is believed that this change is part of Chinas effort to join the Hague Agreement.

Article 2 of the fourth amendment redefines design as any new design of the shape, the pattern or their combination, or the combination of the color with shape or pattern, of the whole or a part of a product, which creates an aesthetic feeling and is fit for industrial application. This makes it possible to protect a portion of a product, often referred to as partial design. Under the current law, a design patent can only protects a complete product but not a portion of a product which cannot be separated or cannot be sold and used independently. Allowance of partial design makes design practice in China more similar to that in many other jurisdictions and offers broader protection of design patents. Without having to limit their design patent to specific complete products even though the design points are only related to certain part of such products, design patent right holders will be in a better position to protect themselves from infringers who may be able to avoid the risk of infringement by only copying their design points and using them in a different shaped product.

The allowance of partial design also renders design patent protection for graphic user interface (GUI) more useful. Applicants do not have to protect the product, i.e. the display screen panel, with the GUI, in their design patents, as under the current practice. Instead, a design patent may be used to protect the design of the GUI itself, with the other parts of the product disclaimed and presented by dotted lines. Even in the GUI itself, some parts may be disclaimed through the use of dotted lines. It will be interesting to see what standard will be used in the examination of partial design application.

Article 29 of the fourth amendment of the patent law includes domestic priority for design applications, which is not available under the current patent law. Specifically, if within 6 months from the date an applicant first files an application for a design patent in China, he files another design application in China for the same subject matter, the applicant may enjoy the right of priority. Under the current domestic priority practice for invention and utility model applications, when domestic priority is claimed, the first filed Chinese application will be deemed to be withdrawn. Therefore, it is not possible to keep both applications. It is reasonable to believe that this also applies to design applications.

3. Drug Patent Related Provisions

In the fourth amendment, the third aspect of changes from the current patent law relates to drug patents. Specifically, it includes patent term extension and patent linkage system.

(1) Patent Term Extension

Article 42 of the fourth amendment provides that in order to compensate for the time spent in the review and marketing approval of new drugs, at the request of the patentee, CNIPA (China National Intellectual Property Administration) may grant compensation for the term of the invention patent related to the new drug which has been approved for marketing in China. The compensation period shall not exceed five years, and the total effective period of patent right after the new drug is approved for marketing shall not exceed 14 years.

It is to be noted that Bolar exemption is available under the current patent law, i.e. use of a drug patent for the purpose of application for drug approval is not considered a patent infringing activity, but extension of patent term is not available. The inclusion of patent term extension in the fourth amendment of the patent law better balances the interest of innovative drug companies and the generic companies. There are no detailed provisions available yet regarding how the extension will be calculated. However, it can be expected that this new provision encourages innovative drug companies, especially foreign drug originators to bring their new drugs to the Chinese market as early as possible and hence make new drugs more accessible to the Chinese people.

(2) Patent Linkage System

Article 76 of the fourth amendment of the patent law provides that in the process of review and marketing approval of a drug, if a dispute arises between the applicant for the marketing approval of the drug and the relevant patentee or interested party due to the patent right related to the drug applying for registration, the relevant party may bring a suit in the peoples court and request a judgment be made on whether the related technical solution of the drug applying for registration falls within the scope of protection of others drug patent. The drug regulatory department of the State Council may, within the prescribed time limit, make a decision on whether to suspend the marketing approval of the relevant drug based on the effective judgment of the people's court.

The applicant for marketing approval of a drug and the relevant patentee or interested party may also request an administrative ruling from CNIPA for the dispute over the patent right related to the drug applying for registration.

Article 76 further provides that the drug regulatory department of the State Council, in conjunction with CNIPA, shall formulate specific measures for the connection between the marketing approval of drugs and the resolution of patent disputes in the stage of application for marketing approval of drugs, which shall be implemented after the approval of the State Council.

The newly added article introduces the socalled "patent linkage system" into the patent law, which provides an early resolution mechanism for drug patent disputes, aiming to resolve potential patent disputes before relevant drugs are marketed. However, by the completion of this article, detailed rules in this area still need to be formulated, such as availability of experimental data protection period for drugs, and the establishment of Chinas Patent Information Registration Platform for Approved Drugs, equivalent to the corresponding content in Approved Drug Products with Therapeutic Equivalence Evaluations in the US, commonly known as the Orange Book. Other drug related measures may also need to be updated to reflect the changes in this regard, such as an updated application process for drug approval, or a revised Catalog of Approved Drugs.

As a matter of fact, on September 11, 2020, the National Medical Products Administration and CNIPA jointly issued "Implementation Measures for the Early Resolution Mechanism for Drug Patent Disputes (Trial Version) (Draft for Comment)" for public comments. On April 25, 2018, the National Medical Products Administration issued "Implementation Measures for the Protection of Drug Experimental Data (Trial Version)" for public comments. Neither one has been finalized and implemented yet. However, it is reasonable to expect that a full system similar to that established by HatchWaxman Act in the US will be available in China soon.

4. Open License System

Articles 50 to 52 of the fourth amendment of the patent law provide an Open License system. Specifically, a patentee may express in writing to CNIPA its willingness to license their patents to anyone and specify relevant royalties and method of payment. CNIPA will announce the patentees statement and offer the open license. Patent right evaluation report should be provided with the offer of an open license for utility model or design patent. If a patentee withdraws its offer of open license, it must do so in writing and CNIPA will announce the withdrawal statement. In this case, any previously granted open license shall not be affected.

According to Article 51, anyone that is willing to exploit the patent which is open licensed gets the license to exploit the patent after it informs the patentee in writing, and pay the license fee according to the open license announcement. In other words, anyone that complies with the above provision automatically gets a license. In addition, the same article specifies that the patentee that offers the open license and potential licensees can still negotiate on license fees. However, the patentee that offers the open license may only grant ordinary licenses and shall not grant a sole or exclusive license for the patent concerned. Moreover, if any dispute arises with respect to the open license, the relevant parties may either request mediation from CNIPA or launch a law suit in peoples court.

Interestingly, in order to encourage patentees to offer open licenses, the fourth amendment of the patent law provides that during the implementation period of the open license, the annuities paid by the patentee shall be reduced or exempted.

5. Other Important Changes

(1) Patent Term Adjustment

Patent term adjustment is made available in Article 42 of the fourth amendment of the patent law. It is believed that this change was made in line with the ChinaUS phase 1 trade agreement. Specifically, where an invention patent right was granted after four years from the filing date of the invention patent application and after three years from the date of the substantive examination request, CNIPA shall, at the request of the patentee, provide compensation for the term of the patent with respect to the unreasonable delay in the examination stage of the invention patent. Not detailed calculation method is available yet.

(2) A New Grace Period Provision

Article 24 of the fourth amendment includes a new provision that relates to grace period. Specifically, disclosure of an invention for public interest in case of national emergency can enjoy the grace period of 6 month.

(3) Patent Right Evaluation Report

Under the current patent law, if a dispute over patent infringement involves a utility model patent or a design patent, the people's court or the administration office may require the patentee or the interested parties to present a patent right evaluation report prepared by the CNIPA through searching, analyzing, and assessing the relevant utility model or design, which shall serve as evidence for trying or handling the patent infringement dispute. Currently only patentees or the licensees that have the right to launch law suits have the right to request patent right evaluation reports. In the fourth amendment of the patent law, it is provided that relevant parties from both sides of the law suit may request the patent right evaluation report produced by CNIPA. This means that not only the patentee can request the CNIPA to produce the patent right evaluation report but the defendant is also able to do so. It provides a new vehicle for alleged infringers to defend themselves.

However, for a party that is not involved in an infringement law suit but is concerned with potentially infringement on a utility model or a design patent, it is still not possible to request a patent right evaluation report from CNIPA.

(4) Extended Deadline to Submit Priority Documents

According to Article 30 of the fourth amendment, an applicant who claims priority from an invention or a utility model patent application shall submit a written declaration at the time of filing an application and submit copies of the patent application documents filed for the first time, within 16 months from the date on which the invention or utility model patent application was filed for the first time. In other words, for invention or utility model applications, the deadline for submitting priority documents is extended from 3 months from claiming priority to 16 months from the priority date.

Copies of priority documents for claiming priority from a design application should be submitted within 3 months from filing an application for design patent.

(5) AntiMonopoly Provision

The fourth amendment of the patent law includes a new Article 20 which is a very broad antimonopoly provision. Specifically, it provides that the application for and the use of patent rights should follow the principle of good faith. Patent right should not be abused to damage public interest and others legitimate rights. Abuse of patent rights to exclude or restrict competition, which constitutes monopolistic behavior, shall be dealt with in accordance with the AntiMonopoly Law of China. Currently, there are several laws, regulations or judicial interpretations in place to address the abuse of intellectual property right. However, it will be interesting to see how this provision is applied in litigation in the future.

See the original post here:
Review of the 4th Amendment of China's Patent Law - Lexology

AUBURN, Ala (EETV) - The Alabama Election and the amendment voting has ended, here is a more in depth analysis of the election and an explanation of each amendment.

There are two newcomers to the Alabama House of Representatives lineup, Jerry Carl in the First Congressional District and Barry Moore in the Second Congressional District. They take the spots of Bradley Byrne and Martha Roby.

Winners:

Robert Aderholt, he won a 13th term in Congress in the Fourth District which includes Gadsden, Albertville, Cullman, Jasper and parts of Tuscaloosa.

Mo Brooks, he won his sixth term in Congress in the Fifth District which includes Huntsvile, Decatur, and Florence.

Jerry Carl, he defeated the incumbent James Averhart for the First District which includes Mobile, Daphne, Fairhope and Gulf Shores.

Barry Moore, he defeated the incumbent Phyllis Harvey-Hall in the Second District which includes Montgomery, Dothan and Troy.

Gary Palmer, he ran unopposed in the Sixth District which includes parts of Birmingham, Vestavia Hills, Clanton and Oneonta.

Mike Rogers, he defeated Aida Winfrey for a 10th term in Congress. He represents the Third District which includes Anniston, Talladega, and the Auburn-Opelika Area.

Terri Sewell, the lone democrat who ran unopposed won her sixth term in Congress. She represents the Seventh District which includes parts of Birmingham, Tuscaloosa, Demopolis and Thomasville.

The winner of the Senate race is Tommy Tuberville who defeated the incumbent, Doug Jones. Tuberville was a coach for the Auburn Tigers from 1999 to 2008.

The First Amendment which states limiting Alabama voting to U.S. Citizens passed. The Second Amendment which states that there will be changes to the state's judicial article has passed. The Third Amendment which appoints judges for longer term passed. The Fourth Amendment which removes racist, outdated, duplicative language from the Alabama Constitution has passed. The Fifth and Sixth Amendment states that in Florence and Lauderdale counties would allow the use of deadly force to protect church attendees and employees has passed.

More here:
Alabama Election Results and Amendments - Eagle Eye TV

Supporters of local high school sports can breathe a sigh of relief.

Next months winter sports season was cleared for liftoff last week when Virginia Governor Ralph G. Northam signed the fourth amendment to Executive Order 67, removing the 10 feet of social distancing required in Phase 3 guidelines for recreational activities.

With that stipulation removed, contact sports now are permitted. Basketball and sideline cheerleading will start Dec. 7, with wrestling, indoor track and swimming commencing Dec. 14.

Other sports previously banned by Phase 3 restrictions included football, field hockey, volleyball, soccer and lacrosse, and are now set to resume as well.

Fall sports practices will start Feb. 4 for football and competition cheerleading and Feb. 15 for the remaining sports. The first football game date is Feb. 22. All spring sports begin practice on April 12 and will be finished by June 26.

High school sports competitions in Virginia have been shut down since March 13 due to COVID-19. Teams are currently permitted to hold offseason workouts.

Keeping our student athletes safe is critical during this pandemic, Northam said in a press release. I know I join many parents in looking forward to the safe return of school sports. [The Virginia High School League] has been a tremendous partner throughout the COVID crisis, and I appreciate the thoughtfulness and diligence they have put in development of these guidelines for returning to play.

VHSL executive director Billy Haun acknowledged the importance of the news.

This amendment by the Governor clears the way for all of our sports to play, Haun said. We appreciate the time, effort and input staff received while preparing this document. Adherence to these guidelines will offer a safe reopening for our students, coaches, staff, officials and communities once we start playing in December."

The VHSL also released a 39-page paper outlining general guidelines and extensive sport-specific regulations to mitigate possible COVID-19 transmission among athletes,coaches, officials, administrators and spectators.

The VHSL staff received input from VHSL and NFHS Sports Medicine Advisory Committees (SMAC), the NCAA, the Virginia Department of Health, USAFootball, USAField Hockey, US Lacrosse, USAWrestling, the National Wrestling Coaches Association, VHSL school administrators and VHSL coaches advisory committees while preparing the extensive protocols.

While the VHSLs plans may proceed, it's hardly business as usual.

The VHSL's Executive Committee previously had voted to limit teams to 60 percent of the normal number of contests due to the compressed time frame following the postponement of fall sports. Now, the schools will have to deal with strict guidelines that will be small issues for some sports while causing major impacts on others.

"There are going to be a lot of things that are very, very different. Lots of changes coaches are going to have to make...to play the game under these regulations," Fauquier High activities director Mark Ott said.

"There are a lot of these we have to discuss in a short amount of time to make this work," he added.

Needless to say, the news has activities directors scrambling to get organized since there has never been a sports calendar like this.

We are definitely preparing schedules and discussing strategies for safe implementation of athletic events, said Unity Reed AD Kevin Turner.

To Kettle Run AD Paul Frye, the inconveniences involved in restarting are worth the effort.

"It's going to be a burden," he said. "[But] it's necessary for the kids to play, so we are going to do it. Hopefully in the next six weeks we will be able to pull it off."

Boys lacrosse, for example, is facing major modifications in play, including a ban on all body contact/checks. Only stick checks will be permitted.

Faceoffs will be eliminated for the season, and a coin toss will determine which team is awarded the ball at midfield to begin the game. After each goal, the team scored upon will be awarded the ball at midfield with no player within five yards.

Scheduling also will be affected. Schools may not compete in events involving five or more schools or competitions hosted by anyone but a member school. No team can face out-of-state teams.

Fauquier wrestling, and more recently Liberty, have wrestled in the prestigious Beast of the East event. That tournament has been canceled, and many basketball, cross country, track and field, swimming and competition cheerleading invitationals are off the table.

Ott, a former head coach, emphasized that coaches are being asked to do a lot more now.

"How hard is it going to be for a coach?" he asked. "Obviously, they want to focus on the game plan and the fundamentals. Now, they have to worry about all this other stuff behind the scenes.

"You also have to think about this: our coaches don't get paid enough to do all that," Ott said, stressing Fauquier County continues to fall further behind in the area of compensation. If our coaching stipends were on par with other counties around us, you might be able to justify it. It's hard for a coach to do all the extra.

"There are so many questions that can't be answered (now), and I completely understand that," Ott said. "None of us have ever been through this before, so every policy we create, every mitigation plan, is brand new.

"It's not as if we have something to copy."

Read more:
Thanks to governor's go-ahead, winter sports will debut in December - Fauquier Times

Predicting elections is a fools errand, but the errand becomes much simpler when a candidate has little to no opposition.

In elections for the Texas House of Representatives this year, 47 candidates nearly a third of the chamber are running without any opposition on the ballot. Seven more have no opponent from the other major party, but face a third-party opponent.

While the vast majority of those are current representatives, five are sure to be new faces on the House floor in the next legislative session.

Heres a quick look at each.

House District 10: Jake Ellzey (R)

With Rep. John Wray (R-Waxahachie) not seeking reelection in the solidly Republican district south of Dallas, three Republicans vied for the seat in the primary.

Jake Ellzey, a retired Navy pilot, won the primary outright in March with 65 percent of the vote.

In 2018, Ellzey ran for Texas 6th Congressional District after the incumbent, Rep. Joe Barton, decided against seeking reelection amidst a sexting scandal.

Ellzey secured enough votes for a primary runoff election in 2018, but lost the race to Rep. Ron Wright (R-TX-06) by four points.

Of the five new candidates expected to serve in the next legislature, Ellzey is the only one with an opponent on the November ballot.

Libertarian Matt Savino is also in the running.

House District 59: Shelby Slawson (R)

In one of the few primary races this year that resulted in an incumbent losing a reelection bid, Rep. J.D. Sheffield (R-Gatesville) lost to Shelby Slawson by a wide margin of 23 points.

Slawson graduated with a law degree from the University of Texas in 2003 and practices law in Stephensville.

During her primary campaign, Slawson was endorsed by a number of conservative organizations in the state, including Texas Right to Life, Young Conservatives of Texas, Texas Values Action, and Gun Owners of America.

She was also endorsed by state Sen. Pat Fallon (R-Prosper) and has returned the favor by supporting Fallon in his bid for Texas 4th Congressional District.

House District 60: Glenn Rogers (R)

An analysis of the partisan leanings of each state House district found that HD 60 is currently the most Republican-leaning district in the state.

With Rep. Mike Lang (R-Granbury) not seeking reelection, the primary race for his seat became one of the most contentious in the state.

Jon Francis led in the primary race with 46 percent of the vote, while Glenn Rogers trailed behind at 44 points.

Throughout the primary runoff race, Francis backed by Sen. Ted Cruz (R-TX) and Rogers backed by Gov. Greg Abbott poured over a million dollars into the race.

At the end of the heated race, Rogers came out on top by fewer than a thousand votes.

House District 76: Claudia Ordaz Perez (D)

With Rep. Csar Blanco (D-El Paso) resigning to run for the open seat of Texas Senate District 29, his House seat was open for a new member to succeed him.

El Paso City Council member Claudia Ordaz Perez won the Democratic primary nomination outright against Elisa Tamayo with 56.4 percent of the vote.

Policy priorities listed by Ordaz Perez on her campaign website include parental leave reform, stronger animal welfare policies, improving public schools, and expanding Medicaid.

House District 100: Jasmine Crockett (D)

After then-Rep. Eric Johnson resigned from the district to run for Dallas mayor last year, Rep. Lorraine Birabil (D-Dallas) won the special election in January.

But while Birabil won the election to finish Johnsons unexpired term, she lost the election to serve in the upcoming legislative session.

Jasmine Crockett, a civil rights attorney, won the Democratic primary runoff election in July by a narrow margin just under 100 votes.

Crockett has emphasized her focus on criminal justice reform.

As I enter my first session in the midst of a pandemic, budget shortfall, and redistricting year, my top priority is going to be a balanced budget that includes our greatest necessities, Crockett told The Texan in a statement.

She said those necessities include, reforming our outdated and inefficient criminal justice system into one that is effective in delivering justice and doesnt waste taxpayer money on approaches that dont improve public safety, and, reducing the burden of property taxes for homeowners in my district.

Crockett says that she intends to file legislation to legalize the use of marijuana in order to increase our tax revenue, removing frivolous regulations hindering small businesses, and protecting our Fourth Amendment right.

I look forward to working with members from both parties to advance an economically-centered, Texas-style, legislative agenda, said Crockett. With my experience as an attorney, and my business background, I hope to be placed on committees which will benefit from my business acumen as a small business owner, my ability to be fiscally astute, and my litigation skill set and knowledge obtained over the last 14 years.

Disclosure: Unlike almost every other media outlet, The Texan is not beholden to any special interests, does not apply for any type of state or federal funding, and relies exclusively on its readers for financial support. If youd like to become one of the people were financially accountable to, click here to subscribe.

A free bi-weekly commentary on current events by Konni Burton.

Here is the original post:
Five New Texas House Candidates Who Won't Be Waiting on Election Results - The Texan

On the night of July 6, 1988, Mexico was on the verge of the unthinkable. After six decades in power, the ruling Institutional Revolutionary Party (PRI) appeared to be going down to a crushing electoral defeat. Cuauhtmoc Crdenas, leader of the left-wing opposition, had taken a strong lead in early returns over the PRIs candidate, the colorless technocrat Carlos Salinas de Gortari.

As vote totals flowed in from around the country to the Ministry of the Interior in Mexico City, the leaders of the PRI began to panic. The electoral upset was a political earthquake for us, PRIs incumbent President, Miguel de la Madrid, later recalled. As in any emergency, we had to act because the problems were rising fast.

The screens at the Ministry of Interior suddenly went blank. The electoral authorities would variously blame a crash of the computer system tabulating the ballots and an overload of the telephone lines. In any event, they said, it was a total breakdown of the system. For hours, no further results were reported across the country.

As midnight approached, with no satisfactory numbers yet concocted, the ruling authorities simply cut to the chase: they declared Salinas the winner. You have to proclaim the triumph of the PRI, President de la Madrid later recalled being told by his partys leader. It is a tradition that we cannot break without causing great alarm among the citizens. Several days later, the compliant vote totals were finally announced: Salinas had won 50.3% of the vote, the lowest percentage ever achieved by a PRI candidate, but still 3.6 million votes ahead of Crdenas, his nearest challenger.

The PRIs fraud was transparent at the time, and would be frankly acknowledged by the perpetrators in the years to come. Crdenas and his supporters held months of public protests, but beyond that there was little could do to challenge the official results. The PRI controlled every significant lever of power in the country. To cover their tracks, Salinas and the PRI would later order the burning of the ballots from the 1988 election. The glimmer of hope for multiparty democracy in Mexico seemed to have been snuffed out with them.

As Election Day turns into Election Night, do you worry about a similar scenario playing out in the United States?

If so, I have good news. You can scratch this particular horror from your inventory of nightmares. While there is no shortage of things that can go wrong with Americas complex electoral system, this isnt one of them.

Its not because the Republican Party is less addicted to power than the PRI. And its certainly not because Donald Trump is any more reluctant to defraud the public than his Mexican counterparts were, or that he lacks compliant minions to help him do it.

Its simply because Donald Trump doesnt get to count the votes. And neither does any part of the federal government that answers to him. For better and for worse, the U.S. Constitution has always entrusted the administration of our electionseven for federal officesto the states. As a result, there is no central computer system to crash, no national vote tally to manipulate. Instead, we have 51 distinct elections, in each of the 50 states and the District of Columbia, each of which counts and reports its own votes. So Donald Trump could yank the power cord on every computer and disconnect every telephone owned by the federal government on Election Night and it wouldnt slow the count by even a minute. The results of the election are simply out of his hands.

Lets not kid ourselves, though. A decentralized election system like ours has massive costs. The various state election laws are confusing, inconsistent and constantly changing. This year has already seen over 300 election-related lawsuits in 44 states, a number than can be expected to substantially increase before the results are final.

Throughout our history, the states have not exactly covered themselves in glory when it comes to voting rights. If they had, it would not have been necessary to amend the U.S. Constitution so many times to prevent states from denying the right to votewhether on the basis of race (the Fifteenth Amendment), sex (the Nineteenth Amendment), ability to pay a poll tax (the Twenty-Fourth Amendment), or age (for those over 18, the Twenty-Sixth Amendment). It took almost a hundred years, and the 1965 Voting Rights Act, before the federal government finally began pushing states to live up to the Fifteenth Amendment. Many states still engage in shameful voter suppression tactics, a trend encouraged by the U.S. Supreme Courts lamentable decision in Shelby County v. Holder (2013).

Even when states manage their elections properly, they feed their results into an Electoral College system that is arbitrary and convoluted at bestand an anti-democratic monstrosity at worst.

All these flaws were evident in the epic election meltdown of 2000, which came down to a disputed margin of 537 votes separating Republican George W. Bush and Democrat Al Gore in Florida. The recount struggle revealed long-standing problems in state election administration that most Americans had previously taken little note of: partisan election officials, arbitrary purges of voter rolls, inequitable lines at polling places, poor ballot designs, a mishmash of often unreliable technologies for voting and tabulating results, and a lack of clear standards for determining voter intent on disputed ballots, to name but a few. A majority of the U.S. Supreme Court seized upon the last of these problems as an excuse to halt the recount in Florida while Bush was ahead, on the grounds of the Equal Protection Clause of the Fourteenth Amendment, in effect handing him the presidency. (The majority preemptively disavowed any interest in the equal protection of voting rights in any other context.)

The U.S. electoral system, as revealed by the 2000 election, was hardly exemplary. How could it be explained to a visitor from Mars, or even France? Why, when Gore had won a clear plurality of a half-million votes nationwide, did the outcome depend on a few hundred disputed ballots in Florida? How did that single states three-ring political circus manage to hold the fate of the entire nation in suspense for over a month? The U.S. Supreme Courts 11th-hour intervention, as poorly reasoned and cynical as it surely was, at least put a decision of national importance in the hands of a national authority, instead of the overworked clerks of obscure county courthouses. After Bush v. Gore, it was as hard to defend state control of federal elections as it was to defend the Courts arbitrary intervention in a matter of state election law.

All this was true in 2000 and remains true today. The American system of decentralized elections is a ramshackle contraption inherited from our ancestors, to which we have added the security vulnerabilities of electronic voting machines and computer networks. Any election could have a Florida, or many Floridas. It is not just an accident waiting to happen. It is an accident that has happened to us, repeatedly, for years.

With that background, it might seem difficult to imagine a worse way to run our elections.

But you can. Close your eyes. Think of an efficient, centralized national election administration, with full power to set uniform election rules for all federal offices, collect the votes, determine the results, and announce them to the world.

Then think of that administration in the hands of Donald J. Trump.

President Trump has made no secret of his beliefs that voter fraud is rampant (though always on behalf of his adversaries), that no one should vote by mail (except his supporters), that the election should be postponable at his will, that ballot counting should stop on Election Night (as long as he is ahead), and that theres no way he can lose his re-election (unless it is rigged by his opponents).

For anyone committed to democracy, these are deeply alarming statements. But consider how much more terrifying they would be if Trump actually had the power to carry them out. Imagine if Trump were the person primarily entrusted to faithfully execute the electoral laws for the entire nation. Imagine if his hand-picked appointees were responsible for culling the voter rolls, deciding who could vote how and when, determining the location and staffing of polling places, selecting the voting software and hardware, and (most ominously) securing and counting the ballots.

The resulting fraud might be subtle, or it might be as obvious as in 1988 in Mexico. But either way, there would be little that Trumps opponents could do to stop theft of a centrally administered election, short of a general insurrection.

In contrast to this scenario, the Founders decision to leave federal election administration in the hands of the states begins to seem less archaicand more inspired. The framers of the Constitution did not foresee hanging chads or hacked voting machines, but they did spend a lot of time thinking about the damage a would-be despot could do in the office of the presidency. By giving the president no role whatsoever in running the election or counting the votes, they took away some of the most dangerous powers an incumbent could use to stay in power.

Postmaster General Louis DeJoy, a Trump donor and appointee, began taking steps to hobble the U.S. Postal Service over the summer of 2020: cutting overtime pay, raising rates for ballot delivery, and removing mail-sorting machines from postal facilities around the country. The apparent goal: to create delivery backlogs and to sow doubt about the reliability of mail-in voting. To some extent, the campaign succeededpiles of mail began to accumulate, and public anxiety increased. However, the moves also triggered a strong backlash. The Postal Service is a popular institution, whose degradation was an appalling price to pay to give Trump a fleeting, marginal advantage in one election. Journalists cast sunlight on DeJoys nefarious moves, and lawyers secured court orders to limit their damage. Many states increased the number of official drop-off boxes available for mail-in ballots, reducing dependence on the USPS. Voters adjusted their habits to get ballots returned sooner. Others took the opportunity to cast early in-person votes instead.

The sabotage of the Post Office demonstrates Trumps willingness to use any available tool, no matter how destructive, to keep his grip on power. But it is also a sign of how little power he has over the voting process. If Trump had a more direct way to block mail-in voting, he would have used it. It is the states, however, that set those rules. Trumps bluster could do little to dissuade them from expanding mail-in voting in response to the COVID-19 pandemic.

Besides the Post Office, Trump has abused other tools of federal power under his control. Trump was impeached for attempting to leverage aid to Ukraine into an investigation of his prospective opponent, Joe Biden. Despite this experience, he has continued to push the Justice Department to launch bogus prosecutions of Bidens family and other political enemies, while using his pardon powers to protect his allies (and co-conspirators). He has unlawfully used federal properties for campaign purposes, starting with the White House. He has encouraged his appointees to engage in repeated violations of the Hatch Act while on the government payroll. And, of course, Trump has used the authority of his office to direct a firehose of misinformation and outright lies into the public ear. Yet none of these abuses of power, however serious, comes close to the ability to stop or manipulate the vote count itself.

What about Trumps vaunted 6-3 conservative majority on the U.S. Supreme Court? After all, Trumps appointment of Amy Coney Barrett was rushed through the Senate for the express purpose of putting her on the Court in time to rule on election disputes, presumably in Trumps favor. Wont a stacked SCOTUS simply intervene to stop the vote count (or otherwise manipulate the results) as it did in Bush v. Gore?

Its a legitimate concern. Bush v. Gore remains a dangerous weapon that can be deployed against the autonomy of states to process their own election results. Justice Brett Kavanaughs concurring opinion in last weeks Democratic National Committee vs. Wisconsin State Legislature case took the dusty gun out of the drawer and loaded it. Kavanaugh, who worked on the Bush legal team in 2000 alongside his future SCOTUS colleagues Roberts and Barrett, approvingly cited some of the more extreme statements in Chief Justice Rehnquists Bush v. Gore concurrence. He also seemed to channel Trumpian rhetoric in warning of the chaos and suspicions of impropriety that can ensure if thousands of absentee ballots flow in after election day and potentially flip the results of an election. (As Justice Kagan retorted in her dissent, [T]here are no results to flip until all valid votes are counted.)

Even the most mercenary and unprincipled U.S. Supreme Court would not find it easy to flip the election in Trumps favor, however. Here the Electoral College offers at least one unalloyed virtue among its many flaws: manipulating the results in one state cannot affect the outcome in any other state. That is no help in an election that comes down to the electoral votes of a single state (like Florida in 2000). But if the margin of victory is built on the results in several states, it will be harder for the Supreme Court to intervene decisively.

But what if instead of one Florida-style dispute in this election, there are five or six? Even this scenario, as horrible as it sounds, would be better than a single central electoral commission under Trumps control and answerable only to the U.S. Supreme Court. Each state-level dispute would necessarily entangle the states particular laws, its courts, election officials, legislature, and citizens, before the Supreme Court could attempt to pluck control away. This process leaves a heavy trail of evidence. The state stakeholders will reach their own judgments about who won and who lost. The likelihood that the Supreme Court could deploy consistent reasoning to nudge the results to one side or the other across a multitude of state cases is doubtful. But what if the Court doesnt care about consistent reasoning, and only seeks results?

Well, the Supreme Court may have gotten away with such an intervention in Bush v. Gore, but as a constitutional matter it does not have the final word in election disputes. Per the Twelfth Amendment, Congress is responsible for counting the votes of the Electoral College and determining whether a president has qualified. In the presidential election of 1876, Congress used this power to sort out disputed results in state elections and determine the Electoral College winner. No one even asked the Supreme Court for its opinion. Congress later codified this power in the Electoral Count Act of 1877. So any attempt by the Supreme Court to flip the election will have to seem credible to the new Congress that will be sworn in on Jan. 2, 2021. If it is not, we could be in for a serious and prolonged constitutional crisis before our teetering institutions are able to settle on the next President. But one thing is clear: the decision wont be Donald Trumpsand thats something to be grateful for.

A decentralized electoral system is not the only way that the federal structure of the United States has frustrated Donald Trumps attempts to consolidate his power.

In an era when many of our institutions have failed to restrain President Trump, the states stand in a class by themselves. State autonomyin fact as much as in theoryhas been one of the biggest bulwarks against Trumps brand of creeping authoritarianism, perhaps second only to public opinion itself.

State officials have refused to assist Trump in carrying out federal policies that they consider illegal or inhumane. The same 1998 Supreme Court decision (Prinz v. U.S.) that delighted conservatives by finding that state governments could not be commandeered to enforce federal gun regulations in U.S. is now regularly deployed to defend sanctuary cities and non-cooperation with federal immigration enforcement.

Most of the government that Americans regularly interact with remains in state and local hands. State governments retain the police power to protect the health, safety, and welfare of their citizensa fundamental power that the federal government simply doesnt have.

After the killing of George Floyd by Minneapolis police last May, President Trump was visibly itching to send heavily armed federal agents (and even troops) to put down protests in Democrat cities. Fortunately, he largely lacked the power to do so. Art. IV, Sec. 4 of the Constitution says that the federal government must protect each of the states against invasion. It may also assist the states against domestic violence but only upon application of the legislature, or of the executive (when the legislature cannot be convened). In other words, the President cannot use federal forces to quell domestic dissent, even when it tips into disorder and riots, unless the state itself asks for help. When the states made clear that they had no interest in ceding management of the protests to Trump, there was little he could do to keep stoking the fires. The President could and did use federal law enforcement to protect federal property and prosecute violations of federal law. But if his goal was to militarize the streets of Americas cities in the runup to the election, he did not succeed.

The states have also provided some impressive lawyering in resistance to Trumps rule. State attorneys general have been notably active in challenging the administrations policies, from the initial Muslim ban to rollbacks of the Affordable Care Act and environmental regulations. State prosecutors have also pressed challenges to Trump closer to home. Unlike Special Counsel Robert Mueller and the U.S. Justice Department, Trump has not been able to intimidate state AGs into keeping his finances off-limits. The New York State Attorney General shut down the Trump Foundation for tax fraud and is currently pressing an investigation deep into the Presidents dodgy dealings. The Manhattan District Attorney won a U.S. Supreme Court decision to obtain Trumps tax returns on the same day that Congress essentially lost in its attempt to do the same.

The continued existence of the states as living, sovereign entities has also provided some spiritual breathing room in the suffocating Trump-dominated atmosphere of the last four years. Even in the worst days of Trumps rule, it has been a comfort for many to live in states that have not yet bowed to his domination, or even to know that such states exist. The presence within our federation of large, indigestible mega-states like California, New York, and Texas, each with the resources and weight to chart its own course in many matters, deserves more appreciation.

For a century, liberals and progressives have been skeptical of the claims of federalism. The rhetoric of states rights was often a thin cloak for racism. Even when sincere about the merits of decentralization, its advocates seemed to have a stunted and retrograde view of the powers of the national government to address national problems. But the experience of the Trump years should provoke a reappraisal. The autonomy of the states has been a significant barrier to many of the authoritarian projects Trump has advanced or mused about. That same autonomy should, with any luck, prevent him from manipulating the election results decisively in his own favor. If so, the survival of American democracy will owe no small debt to its venerable and resilient federalism.

Read this article:
States of Anxiety: Will Federalism Save Democracy in America? - Justia Verdict