The Future Lawyer Weekly Update – w/c 9th November

The round-up of the stories that a budding Student Lawyer should be aware of this week. Sign up here to get these updates in your inbox every week.

US Presidential election

System explanation and what will happen now

Reported by Emma Ducroix

• How Do U.S. Presidential Elections Work?

Voting for the U.S. president is done through indirect voting in which the citizens cast their vote for the members of Electoral College of U.S. The eligibility requirements for becoming the American President, as explained under Article 2 of the United States Constitution, are:
– The person should be a natural-born citizen of United States of America.
– They should be 35 years of age: the person can start his campaigning before they turn 35 years old or complete their residency period of 14 years but this all should be done before the Inauguration Day.
– The person should have been a resident of United States of America for no less than 14 years.

• • Primary Elections

In primary elections, the power is given to the citizens of the country for party’s nomination so registered voters are chosen in this form of election in which voting is done through secret ballot. There are two major forms of primary elections, with one being “closed” and the other being “open”. In a closed primary, the voter can only vote for the party with which he is registered, whereas in an open primary the voter can vote in either of the two primary groups, but not more than one.

• • Party Nomination Conventions

In the Party Nomination conventions, it can be seen that before the start of the general election, the selection process is held, which determines that which candidate will appear on a ballot for a given political party. In these conventions, the Presidential nominees and their respective parties can choose their Vice-Presidential running mates as well.

• • General Elections

It is usually seen that, in the United States of America, the elections often drag on for months at a time before a final winner emerges. In the general elections, the people from every state in the country cast their votes for the President and the Vice-President of the country. When they are casting their vote, it is seen that the votes are being cast by the group of American people known as the “general electorate”, with these votes being referred to as the “popular vote”.

• • The Electoral College

In most of the American states, it is seen that if a winner wins the plurality of popular votes in a certain state, then the state’s allocated electoral votes are also won by them. In this system, it can be seen that the State gets the number of electors who are being represented in Congress. It is seen that each collector casts only one vote and the candidate who gets more than 270 votes wins the election. The inauguration of the newly elected President and their Vice-President is carried out in the month of January following the November elections held every four years.

In order to fully understand the system, you can watch this short clip and find more here.

•  Biden has won, what will happen now ?

Moving into the White House is usually a smooth process, but there are extra complications this time due to probable legal challenges to the election.
First the votes need to be certified in each of the states. That’s usually a formality and happens in the next few weeks. And then Biden will officialy become president of the USA.

According to the US Constitution, the new term of office begins on 20 January at noon. It happens at a ceremony called the inauguration which takes place in the capital, Washington DC. The new president and vice-president take an oath of office administered by the Supreme Court chief justice.
But before the 20th January, there is a presidential transition which is the period between the election result and the start of the new presidential.

The incoming president assembles a group called a transition team who prepare to assume power immediately after inauguration – and the Biden team has already set up a transition website. They will pick people to serve in the cabinet, discuss policy priorities and prepare to govern.

For now, the General Services Administration, which is tasked with formally recognizing the president-elect, and providing the funds and access to federal agencies that his team needs, has so far held off on acknowledging Mr Biden’s victory. Its administrator, Emily Murphy, a Trump appointee, said no “ascertainment” on an election winner had yet been made.
The Biden team is reportedly preparing for legal action if the Trump administration continues to stall the handover.

The legal challenges: The Trump campaign has promised lawsuits in several states where Mr Biden has won or is narrowly ahead. Mr Trump has alleged fraud but offered no evidence.
What legal challenges is Trump planning ? Efforts to throw out some postal votes would begin in state courts but could end up in the Supreme Court. However, legal experts have suggested the lawsuits are unlikely to succeed in altering the results.
There are also expected to be recounts in some states, requested by the Trump campaign, but they are not expected to change the outcome.

• • What will Kamala Harris do in the transition?

The first woman to be vice-president will be appointing her staff and learning more about the job from the previous administration.
The vice-president works at the White House in the West Wing, but they don’t live there. It is traditional that they live on the grounds of the US Naval Observatory which is in the north-west of the city, about a 10-minute drive from the White House.

• • What if Trump doesn’t concede?

Donald Trump has previously said he will contest the results. If his efforts to do so are unsuccessful, the pressure on him to publicly admit defeat will mount.
The concession phone call from a losing candidate to the victor is a respected tradition of American politics. It is by no means obligatory, however.

While Mr Trump doesn’t have to concede, or even put on a good face and attend Mr Biden’s inauguration, he does have some legal obligations. He must authorize his administration to make the logistical preparations for Biden’s team to take over.
Donald Trump ascended to the presidency as an unconventional candidate unafraid to break long-established norms and traditions. If he so desires, he could exit the office that way, as well.

You can find more here or here.

Human Rights

Stop-and-search to widen racial disparities

Reported by Ellena Mottram

Rights groups have written to the Home Secretary, Priti Patel, to argue the stop-and-search powers proposed by the department are at risk of ‘perpetually criminalising’ previous offenders. The groups have also argued that the move is ‘disproportionate and unnecessary’.

The Government plans to introduce Serious Violence Reduction Orders which would allow officers to be able to repeatedly stop and search those subject to the orders ‘simply because they have a related previous conviction’. At present the previous conviction history of an individual is explicitly excluded from what is deemed reasonable grounds for a search. The move would however allow a search solely on this basis and mean individuals could be stopped at any time. It is also being considered of making it a specific offense to not cooperate with a search when an individual is subject to a Serious Violence Reduction Order.
In their 2019 manifesto the Conservatives made a pledge to make it easier for officers to stop and search those convicted of knife crime. The stop-and-search powers proposed are designed to meet this promise.

Currently in England and Wales stop-and-search powers allow police to search an individual or vehicle if they have reasonable grounds to suspect the person is carrying illegal drugs, a weapon, stolen property or something which would be used to commit a crime. However, under s60 Criminal Justice and Public Order Act 1994 police have the right to search people without suspicion in areas where there are fears of serious violence.
It is argued that the introduction of the new measures proposed by the Government, where the suspicion requirement is not required, would further undermine the current safeguards offered to individuals. The proposal to allow stop and search without reasonable suspicion was previously ruled unlawful in 2010 by the European Court of Human rights.

Research has also indicated that the use of the power is focused heavily on black and minority ethnic groups. Indeed, the Governments own figures show that black people are searched at 8.9 times the rate of white people. The letter argued that the disparities do not end with stop and search but ‘are reproduced throughout the criminal justice system’ and ‘when discretion in the use of police stop and search is increased, racial disparities worsen’.
It is feared that targeting individuals based on their previous convictions will make ‘it harder for them to make positive changes, locking them into the very patterns of behavior’ which is looking to be prevented.

The Home Office has however argued that the measure will be used to target ‘small numbers of the most serious and persistent criminals’ and there are ‘extensive safeguards…in place to ensure stop and search is done fairly and proportionately.’
Figures show that in 2019-2020 577,054 stops were carried out across England with 76% leading to no further action. Stops across both categories, those requiring reasonable suspicion, and those where no reasonable suspicion is required both rose by 53% and 35% respectively.

You can find more here or here.

Law

Law Commission Hate Crime

Reported by Laurence Tsai

In the current political climate, there is a greater degree of intolerance of opposing views. Freedom of expression, being a widely contested subject for debate, includes the right to offend, yet in recent decades, there is a growing clamour for a reform to restrict any potentially offensive views.
In England and Wales, ‘hate crime’ encompasses a variety of behaviours, including violent attacks on people, criminal damage, or verbal abuse and harassment. The term may also include ‘hate speech’. Such crimes are quite often depicted as pre-meditated attacks against individuals or communities with immutable characteristics, such as race or sexual orientation.

Our current law aims to protect individuals and groups on the basis of race, religion, disability, sexual orientation and transgender identity. The Public Order act 1986 contains a category of offence – stirring up – which concerns the use of words or behaviour, or the dissemination or possession of material which is intended to, or likely to, stir up hatred based on race, religion or sexual orientation. A protection exists to exempt words, behaviour or material that are used or displayed within a ‘private dwelling’.

The Law Commission (“LC”) has proposed to remove this dwelling exception. Its rationale is that, because the criminal aims to not intrude on purely private matters, the exception is ‘poorly targeted’. In its consultation paper, it provided the example that the law would sufficiently target a meeting held in a large private house, but would exclude a private conversation conducted in an office.
Although the LC stated that it was ‘not intending for private conversations at the dinner table to be prosecuted as hate speech’, opponents of the proposal have argued that this is a possible consequence of the proposed reform. Indeed, many critics have voiced the contention that this proposed change would encourage state surveillance as a possible method to obtain the evidence. Various free speech organisations welcome the LC’s report that the current law lacks clarity and certainty. However, they argue that the proposal must focus on safeguarding the freedom of expression as a guiding principle to meaningfully effect the change they seek.

The controversy attracted by the LC report highlights the dilemma between protecting individuals from hate crimes in a private domain whilst respecting each individual’s right to private life and freedom to express one’s opinion. There have been fewer prosecutions for racial hatred as opposed to those for sexual orientation and religion. This discrepancy may be because racial hatred is not blessed with the same volume of protections as the latter two protected characteristics.

The aim of the consultation is to add clarity and certainty to the law and to determine whether there is a need to provide similar protects for other characteristics, such as transgender identity. Whilst the LC has good intentions, it reassures the public that extending hate speech laws will not erode legitimate debate.

Find out more here or here.