Understanding the Electoral College in the United States.

October 11, 2016 § 3 Comments

Dear colleagues:

During my career I have noticed that every four years during the Presidential election season in the United States many interpreters are faced with the Electoral College topic even when their assignments are non-political.  Because of its American uniqueness, this topic presents a challenge to many colleagues who usually work outside the United States and to others who live in the country but grew up somewhere else.  In fact, the Electoral College is one of those issues that many Americans do not fully understand, even if they vote every four years.  Interpreters cannot interpret what they do not understand, and in a professional world ruled by the market, where the Clinton and Trump campaigns are dominating broadcasts and headlines, this topic will continue to appear on the radar screen. Therefore, a basic knowledge of this legal-political process should come in handy every four years.

Because we are in a very “different” campaign and Election Day will be here before we know it, I decided to put my legal background and my passion for history to work:

Every four years when an American citizen goes to the polls on a Tuesday in November to elect the new president of the United States, that individual does not vote for any of the presidential candidates. We Americans vote for a preference (Republican, Democratic and occasionally other) and for electors who will go to Washington, D.C., the nation’s capital, in the month of December to cast all electoral votes from that state, in favor of the candidate who represents the preference of the majority of the state voters as expressed on that Tuesday in November.  In other words, we vote for the people who will go to Washington D.C., to vote on our behalf for the presidential candidate who received the most direct votes from the citizens of that state during the general election.  After the November election, those electors are pledged to the candidate who received the most votes in that state.  The result: We have direct vote elections in each state, and then we have the final election in December when the states vote as instructed by the majority of its citizens. It is like a United Nations vote. Think of it like this: Each state elects its presidential favorite; that person has won the presidential election in that state. Now, after the November election is over, the states get together in December as an Electoral College and each of them votes. This is the way we determine a winner. Each state will vote as instructed, honoring the will of its citizenry.  We do not have proportional representation in the United States.

Historically and culturally this country was built on the entrepreneurial spirit: Those who risk everything want everything, and when they succeed, all benefits should go their way. We are an “all or nothing” society. That is even reflected on our sports. All popular sports invented and played in the United States have a winner and a loser by the end of the game: We do not like ties because we associate a tie with mediocrity. A baseball game can go on forever until a team wins.  We do the same in politics. Once the citizens have voted, the winner gets all the benefits, in this case all the electoral votes; it does not matter if he or she won by a million votes or by a handful. You may remember how President George W. Bush was elected to his first term; he won the state of Florida by a very small margin, but winner takes it all, therefore all of Florida’s electoral votes went to him and he became the 43rd. President of the United States.  Thomas Jefferson and John Quincy Adams got to the White House with a smaller margin than George W. Bush.

I mentioned earlier that we like the principle of winner takes it all. Although that is true, we are a country of fairness and justice with such diversity that the only way to achieve this goal is through a balance of the rights of the people on one side, and those of the states on the other. (For those who have a difficult time understanding why the states have rights separate from the people, please imagine the United States as a mini-world where each state is an independent country. Then think of your own country and answer this question: Would you like a bigger or more populated foreign country to impose its will over your country, or would you like for all countries to be treated as equals?) In December when the electors or delegates from each state meet as an electoral college in Washington D.C. to cast their state’s electoral votes, all states have a voice, they are all treated as equal.  This is the only way that smaller states are not overlooked; their vote counts.

We find the final step to achieve this electoral justice to the states of the United States of America (all fifty states and territories that make this country) and to the citizens of the country in the number of electoral votes that a state has; in other words, how many electors can a state send to Washington D.C. in November.  The answer is as follows:  The constitution of the United States establishes that there will be a House of Representatives (to represent the people of the United States) integrated by 435 members elected by the people of the district where they live. These districts change with the shifts in population but additional seats are never added to the House.  When the population changes, the new total population are divided by 435 and that gives you the new congressional district. The only limitations: An electoral district cannot cross state lines (state borders) therefore, occasionally we will have a district slightly larger or slightly smaller, and every state must have at least one electoral district (one house member) regardless of its population.    The American constitution establishes that there will be a Senate (to represent the 50 states) integrated by 2 representatives or members from each state for a total of 100 senators elected by all the citizens of that particular state. When new states have been admitted to the Union (the last time was 1959 when Alaska and Hawaii became states number 49 and 50 respectively) the senate grows by two new members.

As you can see, all states have the same representation in the Senate (2 senators each) regardless of the state’s size or population. The House of Representatives on the other hand, has more members from the states with larger population, but all states have at least one representative in the house. This way the American system makes sure that the will of the majority of the people is heard in Congress (House of Representatives) and it assures the 50 states that all of them, even the smaller ones, will be heard as equals in the Senate. You need both houses of Congress to legislate.

Going back to the Electoral College, the number of electoral votes each state has is the same as its number of Senators and Representatives. The total number of Senators and Representatives is 535 (435 Representatives and 100 Senators) Washington D.C. is not a state, therefore it has no Representatives or Senators, but it has 3 electoral votes to put it on equal footing with the smaller states for presidential elections. Therefore, the total number of electoral votes is 538.  Because of this totals, and because of the American principle of winner takes it all that applies to the candidate who wins the election in a state, to win a presidential election, a candidate must reach 270 electoral votes.  This is the reason why California, our most populated state, has 55 electoral votes (53 Representatives and 2 Senators) and all smaller states have 3 (remember, they have 2 Senators and at least one Representative in the House)

The next time you have to interpret something about the Electoral College in the United States remember how it is integrated, and think of our country as 50 separate countries who have an internal election first, and then vote as states, equal to all other states, on the second electoral round in December.  Because on November 8 of this year we will know who won each state, we will be celebrating the election of a new president, even though the Electoral College will not cast its votes for another month. It is like knowing how the movie ends before you see it.

 

Electoral votes by state Total: 538;

majority needed to elect president and vice president: 270

State number of votes State number of votes State number of votes
Alabama 9 Kentucky 8 North Dakota 3
Alaska 3 Louisiana 9 Ohio 20
Arizona 10 Maine 4 Oklahoma 7
Arkansas 6 Maryland 10 Oregon 7
California 55 Massachusetts 12 Pennsylvania 21
Colorado 9 Michigan 17 Rhode Island 4
Connecticut 7 Minnesota 10 South Carolina 8
Delaware 3 Mississippi 6 South Dakota 3
District of Columbia 3 Missouri 11 Tennessee 11
Florida 27 Montana 3 Texas 34
Georgia 15 Nebraska 5 Utah 5
Hawaii 4 Nevada 5 Vermont 3
Idaho 4 New Hampshire 4 Virginia 13
Illinois 21 New Jersey 15 Washington 11
Indiana 11 New Mexico 5 West Virginia 5
Iowa 7 New York 31 Wisconsin 10
Kansas 6 North Carolina 15 Wyoming 3

Are we protecting our profession? Part 1.

March 29, 2016 § 49 Comments

Dear Colleagues:

Every now and then something happens in our profession that makes me wonder if we are truly doing what is best for all of us: individually and collectively as interpreters and translators.  In fact, this happened recently when I learned, like many of you, that the American Translators Association had revisited the antitrust legislation issue and had reviewed its policy.  As expected, ATA followed its traditional pattern of protecting the “interests” of the association over the interests of its individual members or the profession, and adopted a policy that clearly observes antitrust legislation as is, without questioning it.   It is not clear to me how the association arrived to this resolution to endorse everything the government wants, and is included in the legislation and case law, without first seeking a legal opinion from attorneys who disagree with the current antitrust laws or their interpretation by the government.  As I understand it, the mission of a professional association is to advance and protect the interests of its members and the profession they practice.  This can only be accomplished by assessing the current legislation as to its impact on those who it is supposed to protect.  I am convinced that a well-publicized campaign to get public comments from the membership, and seeking a legal opinion as to how to interpret the current legislation in the light most favorable to the interests of the individual interpreters and translators, which could have included proposed amendments to the antitrust legislation would have been fruitful and very successful.  Of course, it would have rocked the status quo where big multinational businesses, sponsors or members of the association, benefit from the current interpretation of the law and the association’s corporate policy, that leaves the individual members on an uneven field where they cannot talk about the insulting and sometimes degrading fees, or rates as these huge corporations refer to them, that are offered for their interpreting and translation services.

We all want to comply with the law, and nobody is suggesting that we break any legislation. On the contrary, we should always observe the law of the land, as these rules and regulations exist to protect the weaker members of society from the actions of those who are in a position to take advantage of them.  This does not mean that we should not question a legal precept when we believe that it is not advancing justice or protecting the weak.

Antitrust legislation was born in the United States in the latter part of the 19th. century when the legislator, first at the state level, and later at the federal Congress, saw the need to protect consumers from big business that at the time was acting as big conglomerates with “excessive” economic power according to the opinion of a majority of the citizens of the United States. The goal of the legislation was to regulate the conduct of business corporations by promoting a fair competition for the benefit of the consumer. Legislation such as the Interstate Commerce Act of 1887, the Sherman Act of 1890, the Clayton Act of 1914, and the Federal Trade Commission Act of 1914 became the law of the land.  They were followed by more recent laws like the Robinson-Patman Act of 1936 and the Celler-Kefauver Act of 1950. Ohio Senator John Sherman clearly explained the rationale behind this policy when he said that: “…If we will not endure a king as a political power, we should not endure a king over production, transportation, and sale of any of the necessaries of life…” (Speech delivered in the U.S. Senate on March 21, 1890) The U.S. Supreme Court agreed with this spirit of the legislation when it referred to the Sherman Act as a “charter of freedom, designed to protect free enterprise in America” (Appalachian Coals, Inc. v. United States, 288 U.S. ({{{5}}} 1933) 344 [359]) Antitrust legislation goes against the freedom of speech protected by the First Amendment of the Constitution, but it is tailored under strict scrutiny to limit this right only as it protects the consumer from the voracious unscrupulous merchant. We have many examples of these businesses throughout the more than one hundred years of antitrust laws in the country: The mining industry, the automobile industry, and even the telephone industry are some of the examples that come to mind. In all of these cases we can clearly see the benefits of restricting commercial and industrial activities to avoid monopolies.  We do not dispute that, but the fact is that the world has changed and we now face a very different economic reality than the one faced by the antitrust legislator of the 19th. century.

Technological advances and the rapid growth of globalization have created a world with uneven realities and circumstances in many fields, including interpreting and translating. When applied today, the rules conceived to protect the weak from the powerful, provide shelter to multinationals like Capita, SOSi, and LionBridge who take advantage, with the blessing of some of our professional associations, of the legal ban to talk about fees and working conditions of professional interpreters and translators who are forced to negotiate with commercial, not professional, entities who take advantage of any circumstance they can use in their favor.

But it does not need to be that way, a careful reading of the law shows us that discussing fees and work circumstances is legal, as long as there is no agreement to fix a fee.  The problem is that, to avoid any possible discomfort, some professional associations adopt internal rules and policies where all mention of fees has been proscribed.  It is clear that there is a need for litigation, it is the courts, not the executive branch, who should decide if these 19th. century rules designed to protect the little guy from big business should apply to individuals who make a living from the practice of a professional service, not an industrial or commercial activity (despite the efforts by many to convince us of this model) who are constantly oppressed and taken advantage of by the big business of multinational interpreting and translation corporations.

Who is the little guy who needs the protection of the law under these circumstances? Professional service providers should not fix their fees for services offered to their individual clients: the consumers in this scenario; but there is a big difference between offering services to a neighbor or a store down the street where I live, and having to accept rock bottom fees from publicly traded entities who have a presence in fifty countries.  The court system needs to decide these cases, and if the decision is adverse, the legislation has to be changed. Not all legislation is good or fair; in fact, there are plenty of examples where we can see how the law created or enabled an unjust situation. Let us remember that not long ago the United States had legislation that favor slavery, or deprived women from the right to vote.  This is where professional associations are expected to act to protect their individual members and above all: the profession.

Perpetuating the present situation will not advance the profession, it will mutate it into some kind of involuntary servitude where the big guys will call the shots.  I now ask you for your comments, in the understanding that nobody is calling for violating current legislation, just to change what we have right now, and to opine about the role that a professional association should play when the profession needs to be protected from exterior forces who are trying to hijack it from the interpreters and translators.   Next week we will discuss the same topic from a different perspective: The professional associations and the battle against the professionalization of the interpreter.

This time of the year could be very dangerous for some court interpreters.

April 27, 2015 § 6 Comments

Dear Colleagues:

I just read a contract that one of the States in the U.S. is asking all court interpreters to sign if they want to continue to work in their system. The document is 38 pages long and it is full of legal terminology, rules, and sanctions that only an attorney can understand.  This is not an isolated case. Because of political pressure and budgetary prioritization, court interpreter programs are getting less money from their administrative offices at the state level. In other words: There is hardly any money to pay for interpreting services at the state level in many states.

Although the Civil Rights Act is over fifty years old, it was only a few years ago that the federal government decided to enforce its compliance at the state level in the case of equal access to the administration of justice, regardless of the language spoken by the user of the service.  When the federal government came knocking on the door of each of the fifty states, and told their state judiciary to comply with the law or lose the funds they had been getting from the feds, states started to look for a solution to this problem. In reality, up to that moment, the states were complying with the constitutional requirement to provide court interpreters in criminal cases, but in many states there were no court-funded court interpreters available for civil cases and other additional services offered by the courts to the English-speaking population.  The message from Washington, D.C. was loud and clear: In order to continue to receive (much needed) federal funds, the states had to provide interpreters for all services they offered, not just criminal cases.

In some parts of the country the first problem was as simple as this: There were not enough certified court interpreters to meet the legal requirements; in other regions the problem was slightly different: There were plenty of certified interpreters, but the courts were not willing to pay the professional fees commanded by these (for the most part) top-notch interpreters in that state.  These professionals had been there for years, but due to the low fees paid by the state court system, they were not even considering the state judiciary as a prospective client.

When faced with this dilemma, a logical and ethical option should have been to develop a program to encourage more young people to become certified court interpreters, train them, and then test them to see if they could meet the state-level certification requirements, set years before and universally accepted as the minimum requirements to do a decent court interpreting job.  Some states’ needs could be met this way, but not all of them. For that reason, a second logical step would have been to raise the professional fees paid to court interpreters in order to entice those top-notch interpreters, who were not working for the courts, by making the assignment profitable and attractive. Finally, for those places where this was not enough, state courts could have used modern technology and provide interpreting services by video or teleconference. Administrative offices had to develop a plan, categorize the services offered and decide which ones required of an experienced certified court interpreter, find the ones that a brand new certified court interpreter could provide, and select those instances that, because of their nature and relevance, could be covered remotely by a certified court interpreter elsewhere in the state or even somewhere else.  This process also needed that state court judges and officials acted within the constitutional system and asked their respective legislatures for the funds to comply with the federal mandate.  It is doubtful that legislatures would risk losing federal funds by not approving such monies; and in those cases where the local legislators would not grant more funds, state court administrators and chief judges needed to do their job, and truly provide equal access to justice to all by reorganizing priorities, and perhaps sacrificing some programs, even those that were near and dear to a judge’s heart, in order to find the funds needed to meet this priority that is above most others, not just because of the federal funds that the state would lose in the event of non-compliance, but because those in charge of the judiciary should consider equal access to justice a top priority, and I really mean at the very top.

Unfortunately, my dear friends and colleagues, most states chose an easier way, even though it did not deliver what the Civil Rights Act intended.  They decided not to rock the boat with the legislature and play it safe, they decided not to make true equal access to justice a priority by recruiting and training quality certified court interpreters, instead, they opted for ignoring the excellent professionals in their area by not raising interpreter fees, thus making the assignments profitable to professional interpreters. They decided to come up with a “plan” to keep the federal money in their accounts by making believe that they were complying with the federal mandate of equal access to justice. This is what many of the states decided to do:

Instead of recruiting and training new certified court interpreters, they decided to create a group of paraprofessionals who would “deliver” interpreting services. These individuals were drafted from the ranks of those who had always failed the certification exams, and by recruiting bilingual individuals with no interpreting knowledge whatsoever. States justified their decision by arguing that these individuals would receive the necessary “training” to interpret in certain scenarios of lesser importance, where people who had partially passed the certification test would be considered as professionally qualified (semantics vary from state to state but it is basically the same) even though in the real world they should be deemed as unfit to do the job. Moreover, bilinguals would be trained to “assist” non-English speakers with some administrative matters in the courthouse. Of course, this brilliant decision would set the profession back to the good old days when prevailing judicial culture was that knowing two languages was all you needed to interpret in court; but that was of little importance when balanced against the possibility of cancelling a court program that was politically useful to a judge or an administrator.  This is how the “warm body next to the court services user so we don’t lose federal funds” theory was born.  The spirit of the law was ignored.

There is as much quality and true access to the administration of justice when a person who failed the court interpreter certification test, or a bilingual court staffer, interprets for a non-English speaker individual as there is medical knowledge when the guy who failed the medical board sees a hospital patient, even if the appointment is to take care of an ingrowing toenail.

Of course, the process above taught court administrators a valuable lesson: court interpreting services was a good place to save money, a wonderful way to channel budget resources somewhere else, and a great way to avoid antagonizing the state legislature, because there would be no need to ask for more money to fund the program.  This was the origin of the next step backwards: Fee reduction.

Court administrators did not stop here. They now knew that they could get away with more, so they decided to lower interpreter fees. In most cases the reduction did not come as a lowering of the fee itself; it was accomplished by cutting guaranteed hours, reducing mileage and travel reimbursement, changing cancellation policy, and by creating a new bureaucratic machinery designed to oversee what interpreters do minute-by-minute. Maybe it should be referred to as “to spy” instead of to “oversee”.

Fast forward to today, and you will find these huge interpreting services contracts in many states. The reason for them is not that court interpreters all of a sudden went bad and stopped doing the good work that they did for decades; these contracts are motivated by more reductions to the interpreters’ fees and by developing this super-protection for the state, leaving the freelancer with little or no defense before potential abuse by the court administrators.  What other justification can these state contracts have when the federal court interpreter contract is a very short agreement, which usually does not change from one fiscal year to the next, and is drafted and developed individually by every federal judicial district?

These state contracts that court interpreters are expected to sign without the slightest objection, have been drafted by the administrative office of the courts’ legal departments; they have been amended to include any possible ways to reduce the interpreters’ real fee that the states missed when drafting last year’s contract, they include sanctions to interpreters who do not comply with sometimes ridiculous duties, without setting any process of notice and hearing; they are written in a complex style full of legal terms and ambiguity that only an attorney can understand.

I am very fortunate that I do not need to sign one of these contracts, as state courts have not been my clients for several years; but it concerns me, as a defender of our profession, that my colleagues may sign these documents out of fear or hopelessness.  I invite all those court interpreters who have been, or will be asked to sign one of these agreements in the next few months, before the new fiscal year starts in July, to seek legal representation. It is your professional career, it is your future. I believe that state (and national) level professional associations should negotiate a deal with a labor relations or civil law attorney, where services would be provided at a lower fee, and offer it as a benefit to their members. In fact, I would like to see all interpreters who are members of a state or regional professional association present a common front and negotiate these contracts with the state administrator.  As state court interpreters we need protection, because if we do not act, we will continue to move backwards. They already told many of us that there is no money and they blamed it on the state legislature, now we know that perhaps they did not try to protect the interpreter program no matter what.

They are paying you less, making your work conditions very uncomfortable, they already took some of our work away and gave it to mediocre cheaper paraprofessionals.  All professionals negotiate the terms of a contract, and before they reach an agreement, they have the benefit of legal representation. The administrative office of the courts is represented by their attorneys; interpreters, like all professionals, should at least be represented by an attorney before they sign a new agreement. I now ask you to comment on this situation and the ways to recover what we had already achieved in the past, so we can move forward, and for the first time fully comply with Title VI of the Civil Rights Act.

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