Monday, August 05, 2013

Drinking on Election Day & Drug-Addled Deliberating Jurors

I’ve just begun reading Jon Elster’s latest gem, Securities Against Misrule: Juries, Assemblies, Elections (Cambridge University Press, 2013), a work in which Elster does for Bentham what he has done for Tocqueville (and in some measure Marx as well) namely, discover and elaborate upon heretofore under-appreciated, neglected, or unknown dimensions of his philosophical, psychological, or social scientific genius in a manner that demonstrates its relevance to both long-standing and pressing problems we face as political actors (be it as citizens, civil servants, or politicians). In the first few pages I was quickly apprised of my ignorance regarding the historic prohibition of the sale of liquor on election day, although I well appreciate the logic that prompted “[m]any countries and American states…[to] ban the sale of liquor on election day, partly no doubt because of the historical practice of candidates plying voters with liquor and partly, I assume, because voters are believed to be more open to reason when not ‘under the influence.’” In the U.S. today, it appears only South Carolina “still uphold[s] [a] restriction[] on the sale or serving of alcohol on Election Day,” as the state of Kentucky lifted its ban this year (although it still has a considerable number of dry counties).* According to Ben Jenkins, vice president of the Distilled Spirits Council of the United States, “The Election Day sales ban is a relic of the Prohibition era when saloons sometimes served as polling stations.” Jenkins is not without a sense of humor: “Repealing the ban on Election Day alcohol sales would provide consumers with much-needed convenience — whether they’re celebrating election returns or mourning them.” Oddly, Utah bans the sale of alcohol at package stores on Election Day, but one can still consume it at bars and restaurants (if there’s going to be a ban, shouldn’t it be the other way ‘round?).  

* It appears this may not be complete: Alaska and Massachusetts also ban Election Day sales, although local governments are free to authorize exemptions. (Should you know otherwise, please inform me of any corrections.)  

In recent elections in Cambodia, the selling and drinking all types of alcohol was prohibited for two days: the day before Election Day and on Election Day, according to a government directive signed by Prime Minister Hun Sen. In the words of the directive, “To ensure a free, fair, non-violent, and no intimidation election on July 28 [2013] traders and vendors must suspend selling alcohol and all Cambodians and foreigners living in Cambodia must stop drinking alcohol on the prohibited days.” In Mexico, La Ley Seca, or “the dry law,” which dates back to the Mexican Revolution, bans the sale of alcohol twenty-four hours before a major election and on the day of the vote, although it seems some jurisdictions (like the tourist city of Mazatlan!) are now exempt from enforcement. In Thailand, “you cannot drink alcohol in public areas (i.e. parks, buildings, hospitals, temples, etc.), during government election days and religious holidays,” not surprising for a country with a predominantly Buddhist population and a strong Muslim minority. In the Philippines, this year’s national elections found its Commission on Elections extending a two-day electoral ban on alcohol sales and public drinking to five days (May 9-13), although establishments accredited by the Department of Tourism, such as tony tourist hotels, were exempted from the ban.
While we’re on the subject of alcohol and rational deliberation (presuming at least a process of ‘democratic deliberation within before casting one’s vote), Elster also notes that in Tanner v. United States, 483U.S. 107 (1987), the Supreme Court found that copious consumption of alcohol by (seven) jurors during a trial did not constitute grounds for overturning the verdict: However severe their effect and improper their use, drugs or alcohol voluntarily ingested by a juror seems no more an ‘outside influence’ than a virus, poorly prepared food, or a lack of sleep.’” In Tanner, the Court cites the fact that common law (case-made law) in the United States flatly prohibits the “admission of jury testimony to impeach a jury verdict,” that is, when it treats matters solely “internal” to the conduct of the jurors, such testimony not an instance of a nefarious “outside” influence. It seems the awful piece of reasoning above was not, however, what animated the Court’s ruling: “The court held that under Federal Rule of Evidence 606(b), the lower courts were correct in denying a hearing on juror misconduct. The court noted that ‘the near-universal and firmly established common-law rule in the United States flatly prohibited the admission of juror testimony to impeach a jury verdict.’” The Court was here relying on a distinction between “outside” influences on jurors and what takes place among them sans any such influence. It is for this reason that alcohol intoxication can be likened to a virus or lack of sleep, these being grouped as “internal” influences (here, as mental states, although what is ‘internal’ can presumably be construed more broadly as the converse of that which is ‘external’). Jury testimony is permitted, therefore, on matters said to encompass “external matters” or “extraneous” influences on their deliberations (e.g., and most obviously, a threat, a bribe, reading or hearing about the trial from media sources, and so forth). But as Elster rightly points out, the Court missed a conspicuously morally relevant difference in the respective “internal” states: the decision to consume a mind-altering substance like alcohol is a voluntary one, while the other putatively analogous states are not (lack of sleep could be the result of a voluntary decision, but need not be). However, Elster fails to mention that in addition to the “copious consumption of alcohol,” it is alleged that a couple of jurors during the trial and deliberations also consumed large amounts of marijuana and cocaine! 
We also learn from Elster that a “handbook for jurors [which is more informal and varied in content than ‘jury instructions’] in Minnesota tells them, ‘While serving as a juror, do not drink alcoholic beverages during trial breaks’” (the above jurors, for instance, having consumed their alcohol during the noon recess), which raises the question of consumption of other mind-altering legal and illegal drugs! In a very informal online survey of jury handbooks, I could not find anything with regard to the consumption of alcohol or other drugs along the lines of the handbook from Minnesota, perhaps because it is thought obvious that any such consumption would patently interfere with one’s obligations as a juror with regard to the need for an open mind, the ability to carefully and impartially listen to and assess evidence and arguments, attentiveness to the relevant law, and so on.   

Here’s a story—a tad funny but largely sad—from several years ago in Albuquerque, New Mexico: a woman passed out while in the process of voting (just prior to inserting her ballot into an electronic tabulator), although election officials later said her vote would be hand-counted:
“Poll workers called police after the woman began yelling and screaming at them. When the officers arrived, she had lost consciousness with a bottle of vodka tucked into her waistband. A little checking determined that it was not illegal to be drunk when casting a ballot, but election laws do prohibit liquor at voting sites and creating a disturbance. [….] ‘No one knew if this was illegal; we’ve never dealt with this before,’ says Nadine Hamby, a police spokeswoman. Lawmakers apparently didnt think drunken voting would be a problem either, figuring they addressed it by restricting Election Day liquor sales until after the polls close.”


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