While you were busy attending to the earthquake at the national politics level, voters around the states were addressing civic matters on their initiative and referendum ballots. Some results on issues I previewed last month, plus a few others:

• California voters rejected Proposition 40, which would have imposed a retroactive wealth tax, and instead approved Proposition 42, which bans both wealth taxes and retroactive taxes. Unfortunately, voters in Colorado narrowly approved a graduated income tax. Measures to limit income tax succeeded in North Carolina and Iowa but failed in Washington. 
• Efforts to build things in California will continue to be hobbled by the objector-friendly provisions of the notorious California Environmental Quality Act, or CEQA, after a partial rollback of the law failed.
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This fall, the Cato Institute launched Your Verdict Counts, a nonpartisan civic education campaign. It is meant to educate the public about how the jury is the most direct form of democratic power ordinary people hold. This power arises from the often overlooked, and sometimes controversial, prerogative of jurors to acquit defendants in criminal cases based on concerns about injustice. The Constitution guarantees trial by jury as a way of preventing oppression. Juries can only serve that role if they ameliorate unjust laws by acquitting those accused of violating them—a task jurors have done at crucial points in American history, including the struggles against slavery and Prohibition.

Some critics have expressed concern that Your Verdict Counts urges jurors to violate the oaths they swear when they begin to serve. This is simply not true. First, and most importantly, nothing in any of our materials—which include a dedicated website, a documentary video, and public communications—in any way urges or suggests to prospective jurors that they should violate any oath they may be required to take as a condition of jury service or that they should take such an oath in bad faith, with their fingers figuratively (or literally) crossed behind their backs.

Dr. Frank Parasmo is an 80-year-old physician who practiced in New York for decades. A federal jury convicted him of unlawfully distributing controlled substances based on his prescription of opioids to patients experiencing chronic pain. The case was close. Unlike in many other cases, Dr. Parasmo was able to put forward extensive evidence that his practice was not a so-called “pill mill.” As a dissenting judge later noted, Dr. Parasmo “ordered numerous tests, referred his patients to a wide variety of specialists to treat their pain inducing conditions, tried to wean them off the controlled substances, and looked for alternative treatments to control his patients’ pain, including prescribing medications other than a controlled substance—all behaviors suggestive of a good faith effort to help his patients.” But over Dr. Parasmo’s objection, the jury was instructed that his intent turned on whether he “was (objectively) ‘acting reasonably’” rather than whether he subjectively intended to overprescribe. Applying that objective standard, the jury issued a split verdict, convicting him on some counts while acquitting him on others.

Following the trial, the Supreme Court held in another case that a conviction requires proof that the defendant subjectively knew he was acting in an unauthorized manner. On appeal, the Second Circuit acknowledged that the district court’s intent instruction was wrong but, in a divided decision, deemed the error harmless. It reached that conclusion by reviewing the government’s evidence presented at trial and determining that it “overwhelmingly” supported a finding of subjective intent. But as Judge Robinson explained in her dissent, that was not the appropriate inquiry. The panel should have instead looked to the “ample evidence” the defense put forward and asked whether a “jury could have concluded” that Dr. Parasmo lacked the requisite intent.

Democrats won control of the House and Senate last night. Although many causes will be identified for the “stunning blue tsunami,” no one should miss the fact that Republicans spent most of the last two years going all-in on the most extreme anti-immigrant agenda in American history. We can now confidently say that—whatever people think of those policies—the strategy failed to prevent their electoral defeat.

Among many other policies, Republicans and the Trump administration: 

• Pre-funded ICE for the entirety of Trump’s term, avoiding oversight or any potential limits on mass deportation; 
• Appropriated nearly $250 billion for immigration enforcement—more than all other federal law enforcement combined and a decade of funds in two years; 
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Democrats won control of both houses of Congress in last night’s midterm elections. Criminal law and civil liberties are likely to be at the top of the legislative agenda once they take office in January. Here are issues they should prioritize—some in response to abuses committed by the Trump Administration, others as efforts to extend an olive branch to the executive branch and their Republican colleagues.

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Number 33 in our series of occasional roundups on election law and policy, this time focusing mostly on White House and Department of Justice attempts to meddle in the midterms, and countermeasures by states and others: 

• Last Wednesday a federal judge told the Department of Justice threats of criminal prosecution against California election officials “must stop.” He probably didn’t mean DOJ should roll out those threats to state election administrators nationwide. DOJ has hinted that it may charge officials with “aiding and abetting” voter fraud if they decline to cull ballots on DOJ’s say-so. But Samantha Trepel writes at Just Security that prosecutors would be highly unlikely to pin such a rap on the officials since, to aid and abet, “as explained in the Ninth Circuit’s model jury instructions, “[i]t is not enough that the defendant… unknowingly or unintentionally did things that were helpful” to the commission of a crime. “The evidence must show beyond a reasonable doubt that the defendant acted with the knowledge and intention of helping the crime’s commission.”
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