What Makes a Crime a Hate Crime?

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iStock

Crimes are classified in a few different ways. There are the types of crimes you often see in news headlines, like theft, robbery, assault, and murder. Then there are hate crimes, which are appended to other charges and carry greater penalties.

what qualifies a crime specifically as a hate crime?

Hate crime cases hinge on motivation: Was the crime motivated by a bias against the victim’s race, religion, sexual orientation, or other protected aspects of their identity? Hate crime laws are usually designed to go hand-in-hand with the actual offense the person is charged with, such as assault or murder, putting greater severity on the crime due to its hateful motivations. For example, it’s not illegal to randomly spew racial epithets—but if you go so far as to punch someone because of your racial bias, the crime becomes much more serious in the eyes of the law.

Furthermore, because hate crimes are dependent on the perpetrator’s intentions, the victim doesn’t actually have to be a member of the protected class the perp thought he or she was attacking to be covered under hate crime laws. If someone attacks you because they think you’re Jewish, but you’re actually an agnostic Catholic, it’s still a hate crime. In other words: Being wrong about who to target is not a legal excuse for bigotry.

If the activities labeled hate crimes, like robbery and assault, are already crimes, why do we need more laws saying those crimes are wrong?

Hate crimes are motivated more by how a person is perceived than any of that person’s words or actions, making such crimes particularly terrifying for both the victim and the community at large. According to the Offices of the United States Attorneys:

"The fact that the victims of such crimes are selected based on characteristics such as their race or religion can cause all those in the community who share that characteristic to experience similar feelings of vulnerability and secondary victimization. In its impact on the community, the fear of becoming a victim of violence can be nearly as debilitating as suffering through an actual crime.

The message of intolerance that is communicated through a hate crime can have broadly disruptive social effects as well, and can lead to greater distrust of law enforcement or friction between racial or religious communities.”

State hate crime laws cover different classes of people in addition to those protected by federal legislation like the Civil Rights Act of 1968. Only five states do not have hate crime laws on the books. Many cover crimes perpetrated with bias concerning disabilities, sexual orientation, and gender. Some protect against biases regarding transgender individuals and gender identity, age, and even political affiliation.

Being able to classify something as a federal hate crime helps agencies like the FBI step in where state and local authorities either cannot or will not prosecute, as well as provide grants to assist local police in pursuing the case. For instance, the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009 expanded federal hate crime statutes to include crimes motivated by a victim’s gender, sexual orientation, and disability status as well as expanding the FBI’s ability to investigate hate crimes.

Matthew Shepard, a gay college student, was beaten, tortured, and left to die in 1998, but because sexual orientation wasn’t yet a federally protected class, the Department of Justice was unable to help the Laramie, Wyoming, police work the case, and pursuing justice ended up being so costly that the police department had to furlough five of its officers to stay afloat.

James Byrd Jr. was an African-American man living in Texas who was dragged to death behind a pickup truck in 1998. Although Texas did have hate crime laws on the books, they were deemed too vague to be enforceable.

However, hate crime laws are controversial in some circles. Some free speech advocates worry that hate crime laws could be wielded to punish freedom of speech, but these laws generally only cover criminal action, not hate speech. In 2004, the Georgia Supreme Court struck down the state’s hate crimes law, arguing that its language was too broad because it didn’t specify the groups that were protected under the statute. It covered all victims chosen because of general “bias or prejudice.” In May 2017, Texas broadened its hate crime laws to include police officers as a protected group, following a 2016 ambush on police that left six Dallas officers dead—though the state is also covered by all federal hate crime statutes.

The federal government’s hate crimes laws have been ruled legally sound. The legality of increasing punishment based on a person’s beliefs was affirmed in a 1993 U.S. Supreme Court case called Wisconsin v. Mitchell. Lawyers for a young black man who incited an attack on a young white man because of his race argued that the five extra years tacked on to his sentence for committing a hate crime violated his First and 14th Amendment rights, but the Supreme Court disagreed, upholding the greater penalties awarded in hate crimes.

if hate crime statutes are in part due to how the offenses disrupt the greater community, is a terrorist attack a hate crime?

A terrorist attack isn’t always a hate crime, but it can be. The FBI defines terrorism as a violent act that’s designed to intimidate the civilian population or influence government policy, including through mass destruction, assassination, or kidnapping. For example, in the summer of 2016, the FBI classified the deadly mass shooting at Orlando's Pulse nightclub as both an act of terrorism and a hate crime, saying that the shooter was motivated by anti-gay bias and because he had asserted that his actions were revenge for American airstrikes in the Middle East.

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What Happens if the Electoral College Ties?

Photo by Element5 Digital from Pexels
Photo by Element5 Digital from Pexels

If there is a tie in the Electoral College, the race for president gets sent to the House of Representatives, where the top three candidates are decided by each state’s delegation as a statewide block. As a state, the representatives decide on a candidate to vote for and, after much politicking, one candidate eventually gets a majority of states and becomes president. For vice presidents it’s a little simpler: it’s only the top two candidates, each senator gets a vote, and whoever gets the majority of Senate votes wins.

Now that that’s been dealt with, how did we get to this odd scenario? And are there any ways that it can be made odder?

A LITTLE BACKGROUND

First, as a matter of clarification, the result in November is just a guideline; the real action is in December, when the Electoral College votes. While it would be a political crisis if the Electoral College completely disregarded the will of the people, it’s not impossible. Only around half of the states plus Washington, D.C. have laws that explicitly say an elector has to vote for their state’s winning candidate. And among those states the laws vary wildly.

In North Carolina, for example, failure to vote for the correct candidate results in a $500 fine and the elector is automatically removed, doesn’t have a vote recorded, and a new elector is put in place. In New Mexico, it’s a fourth-degree felony for an elector to vote for a different candidate, but there’s no provision for canceling the vote. And Ohio just has it as a vague "it’s illegal." The Supreme Court has never ruled on the constitutionality of these restrictions, as it has never really mattered and electors tend to be party faithful anyway. But for the following scenarios, it’s important to keep in mind:

Our current system is the result of the 12th Amendment, which grew out of the disastrous election of 1800. Article II of the Constitution says that each elector needs to cast two votes and the candidate with the most electoral votes wins, while second place gets the vice presidency. In 1800, the Federalist Adams/Pinckney ticket was up against the Democratic-Republicans’ Jefferson/Burr. The Federalists recognized the inherent problem with the then-current rules and gave one electoral vote to John Jay (who wasn’t even a candidate), so that Adams would have one more vote than Pinckney. However, the victorious Democratic-Republicans messed that part up and gave Jefferson and Burr the same number of votes, sending it to the House to decide which one of them would be president.

Thirty-six ballots and a truly ridiculous amount of politicking later, Jefferson was finally elected president and Burr vice president. But the flaws in the Constitution were beginning to show, and the 12th Amendment was ratified just in time for the next presidential election. The 12th Amendment changed it so that electors voted for a president and a vice president, as opposed to two presidential ballots. It also created the modern rules for tie-breaking.

WHAT HISTORY CAN TELL US

In the entire history of the country, the Electoral College has only failed to come to an agreement twice, once for president and once for vice president. Weirdly, however, they were in two different elections.

The 1836 election pitted Martin Van Buren against a supergroup of Whig opponents specially picked to appeal to specific regions. The plan was to prevent Van Buren from getting a majority in any region so that the House would make the decision. It didn’t work and Van Buren won; but when it came time to count the electoral votes, Van Buren’s running mate, Richard Johnson, was one vote short of a majority. The entire Virginia delegation had cast their presidential votes for Van Buren and their vice presidential ballots for a different candidate. The election went to the Senate, which picked Johnson in a party line vote.

In 1824, Andrew Jackson won a plurality in both the popular vote and the Electoral College, but not a majority. When it got to the House, they chose second place John Quincy Adams to be president. Accusations immediately started flying that Adams had secured the support of Speaker of the House Henry Clay, who had come in fourth in the race and was thus ineligible to be chosen, in exchange for an appointment as Secretary of State. As for the vice presidency? John Calhoun has been described by one historian as “everybody’s second choice” and won Electoral College votes from all sides of the political spectrum, dominating his vice presidential opponents.

WHAT IF THERE’S NO TIE ON ELECTION DAY?

Waking up on Wednesday morning, the newspapers blare "We have a winner!" But that’s not the end of the story.

After the contentious 2000 election, with Bush sitting on 271 electoral votes and Gore with 267, there were reports and conspiracy theories of Gore and Democrat consultants trying to flip three electors (for their part, the Gore campaign disavowed the endeavor). This didn’t happen (and actually one Gore elector abstained, giving Gore 266 votes), but the fact that it was even tossed around as an idea shows that the Electoral College could in theory make up their own minds regardless of the actual results.

In 1988, it was George H.W. Bush vs. Michael Dukakis and his running mate Lloyd Bentsen. Bush won in a landslide, but one elector flipped their ballot and voted Bentsen president and Dukakis vice president, giving Bentsen one electoral vote for president (the elector, Margarette Leach of West Virginia, did it to protest the Electoral College).

It was inconsequential because the vote was a landslide. But what if it wasn’t and the election was tied?

The Constitution says “if no person [has an electoral majority], then from the persons having the highest numbers not exceeding three on the list of those voted for as president” shall the House pick the president. In a no-Electoral College-majority election, the Dukakis-Bentsen flip would have resulted in the House choosing between the top three presidential electoral vote getters—Bush, Dukakis, and Bentsen. In that case, it wouldn’t be impossible for the House to decide Bentsen as winner. And although constitutional scholars doubt whether the system would allow such a scenario to take place, Bentsen could in theory also be a vice presidential candidate (the 12th Amendment has the Senate pick between the top two vice presidential vote-getters, so Dukakis would be out).

The Electoral College doesn’t need to go down the route of people anyone has actually “voted for,” either. In 1972, one elector cast a vote for the Libertarians, despite them only getting 3674 popular votes in the entire country. But at least they were running for president. In 1976, the two main candidates were Gerald Ford and Jimmy Carter, with Bob Dole and Walter Mondale as the respective VPs. Carter/Mondale walked away from election night the winners with 297 electoral votes to Ford/Dole’s 241. But after the Electoral College met, Ford only got 240. This wasn’t a repeat of Gore’s missing electoral vote or the Dukakis flip—Dole still got 241.

One Washington state (which Ford won) elector voted Ronald Reagan for president, Dole for vice president (Reagan would later tell the elector, Mike Padden, “Boy, we sure gave 'em a go in '76. It came so close”), which illustrates that the Electoral College can pick anyone. And Leach, the Bentsen elector who used her vote as a protest in 1988, would later echo this point by saying, “When I got home I said to myself I should have voted for Kitty [Dukakis]. If 270 women got together on the Electoral College we could have had a woman President.”