On well-being. Tackling Implicit Bias
| Author | Jeena Cho |
| Pages | 11-12 |
Inter Alia | ON WELL-BEING
On the eve of the election, the U.S.
Supreme Court waded into the fray,
overruling determinations by a federal
district court and the Chicago-based
7th U.S. Circuit Court of Appeals that
absentee balloting could extend for
a discrete time after the election—to
protect those who hadn’t received their
ballots and to prevent contagion. In-
stead, the court’s conservative majority
created new rules: Absentee ballots
had to be postmarked by election day
and received within six days after the
election in order to be counted.
Ordinarily, lower courts are given
deference in emergency stay requests.
But the Supreme Court’s recent histo-
ry has evinced a troubling pattern of
deferring not to its federal bench but to
a particular political party. In a dissent
signed by the liberal wing of the court,
Justice Ruth Bader Ginsburg decried
the decision, writing: “The court’s
suggestion that the current situation
is not ‘substantially different’ from ‘an
ordinary election’ boggles the mind.”
She also warned the order “will result in
massive disenfranchisement.”
But that was precisely the goal. The
court’s party-line decision meant voters
without the apocalyptic prescience to
request an absentee ballot weeks in
advance would have to either risk their
lives at the polls or forfeit their right to
vote. On election day, masked voters
stood in line for hours at the polls, in-
cluding many who’d requested absentee
ballots they never received.
The court’s conservative justices in-
sisted the decision addressed “a narrow,
technical question about the absentee
ballot process” and a district court’s
jurisdiction in such scenarios, chastis-
ing last-minute interference by federal
judges in state electoral processes, then
interfering at the last-minute in state
electoral processes.
NAACP Legal Defense and Edu-
cational Fund President and Direc-
tor-Counsel Sherrilyn Ill called the
court’s ruling “unconscionable” and
“one of the most cynical decisions I
have read from this court—devoid of
even the pretense of engaging with
... reality.”
A brewing battle
With Wisconsin as a cautionary tale,
Democrats are pressing to expand early
voting for the general election and for
a nationwide vote-by-mail system. But
the logistical challenges, and cost, are
daunting. According to the New York
Times, ve states—Colorado, Hawaii,
Oregon, Utah and Washington—al-
ready have all-mail elections, where
ballots are automatically sent to every
registered voter. Arizona and California
allow voters to add themselves to a per-
manent list for mail-in voting. But ab-
sentee balloting is far from widespread.
The Trump campaign has launched a
multimillion-dollar legal effort to block
attempts to implement nationwide
mail-in ballots, and the president has
expressed concerns that allowing more
absentee voting would increase Dem-
ocratic turnout and hurt Republican
candidates—a debunked but revealing
commentary.
Trump and Republican strategists
have falsely alleged that voting by
mail increases voter fraud. Meanwhile,
Trump admitted he voted by mail in
Florida’s March primary.
“We have a different value system
about what voting means to a democra-
cy,” Speaker of the House Nancy Pelosi
(D-Calif.) said of her bloc’s efforts to
expand mail-in voting. “Clearly, we
want to remove all obstacles to par-
ticipation.”
It’s a tall hurdle. Although voting
may be a cornerstone of the rule of law,
the idea of representative democracy
in the United States—one person, one
vote—is a chimera. Voting rights aren’t
even protected in the U.S. Constitution.
But that hasn’t stopped the ght against
voter suppression in all its forms.
Activists are carving paths for more
widespread participation wherever
they can.
And however they can. After the
Supreme Court’s Wisconsin decision,
University of California at Irvine law
professor Rick Hasen, writing at his
Election Law Blog, made a dire fore-
cast: “The message from today is: Don’t
expect the courts to protect voting
rights in 2020.” Q
The existence
of implicit
bias in the
legal pro-
fession is both obvious
and well-documented.
In 2016, the American
Bar Association Com-
mission on Women in the Profession
and the Minority Corporate Counsel
Association partnered with the Center
for WorkLife Law at the University
of California’s Hastings College of
the Law in San Francisco to conduct
research to further understand law rm
and in-house lawyers’ experiences of
bias in the workplace. The research
conrmed “many of the traditional
diversity tools we have relied upon over
the years have been ineffective.”
The study, You Can’t Change What
You Can’t See: Interrupting Racial &
Gender Bias in the Legal Profession,
documents four specic biases against
women and people of color:
• Prove-It-Again: Being forced to work
harder than white male counterparts.
• Tightrope: A narrower range of
behaviors is deemed acceptable.
• Maternal Wall: Bias against mothers.
• Tug of War: The conict between
different disadvantaged groups when
only a limited number of opportuni-
ties are available.
Despite evidence that diverse work-
places perform better and lead to better
nancial results, the legal profession has
been slow to respond. Conscious and
unconscious biases are baked into the
ON WELL-BEING
Tackling
Implicit
Bias
New tool offers insight, answers
BY JEENA CHO
Photo courtesy of JC Law Group
ABA JOURNAL | JUNE–JULY 2020
11
ABAJ J E-J Y E A A AM
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