Gale Encyclopedia Of American Law 3Rd Edition Volume 4 P13 pps

Robbin Stewart was stopped for speeding as he returned from voting in a primary election. Stewart argued that the case against him should have been dismissed because Article VIII, Section 4, of the Missouri Constitution provid- ed that voters “should be privileged from arrest while going to, attending and returning from elections, except in case of treason, felony or breach of the peace.” The Missouri Court of Appeals for the Western District rejected Stewart’s argument. The appeals court noted that in the past, the Missouri Committee on Suffrage and Elections had entertained the idea that the clause cited by Stewart should apply to primary elections as well as general elections, and that the committee had refused to adopt the expansion. In a footnote, the court advised that the U.S. Supreme Court had construed the phrase “treason, felony or breach of the peace” as including all criminal offenses (Williamson v. United States, 207 U.S. 425, 28 S. Ct. 163, 52 L. Ed. 278 [1908]). Such a reading would seem to nullify the objective of Missouri’s constitutional clause. Nevertheless, the existence of such an election-day privilege is a testament to the importance of free elections in the United States. The 2000 presidential election was one of the most controversial in U.S. history, where GEORGE W. BUSH won the election by defeating former Vice President ALBERT GORE Jr. in the Electoral College despite the fact that Gore had won the popular vote. Much of the attention of the country focused upon contested election returns in the state of Florida, but the election also involved other controversies. In 2000, a resident of Illinois, James Baumgartner, opened a web site called Voteauction.com, which purported to allow voters to sell their absentee ballots over the Internet to the highest bidders. Although a court in Illinois quickly closed it down, the site reopened in several other states. State and federal law enforcement officials hounded Baumgartner, who finally sold the site to an Austrian, Hans Bernhard. Baumgartner claimed that he had opened the site as a publicity stunt to raise awareness of FRAUD in government. Bernhard, on the other hand, maintained that he operated the site for the purpose of making a profit. Several state and local agencies brought actions against him immediately, seeking to have the site shut down before the November 7, 2000, election. More- over, Bernhard faced a contempt charge for violating a court order in Illinois requiring him to shut the site down. Bernhard’s Internet service provider eventually shut down the site before the election. FURTHER READINGS Amy, Douglas J. 2000. Behind the Ballot Box: a Citizen’s Guide to Voting Systems. Westport, Conn.: Praeger. Lowenstein, Daniel Hays, and Richard L. Hasen. 2008. Election Law: Cases And Materials. 4th ed. Durham, NC: Carolina Academic Press. Norris. Pippa, ed. 1998. Elections and Voting Behavior: New Challenges, New Perspectives. Brookfield, Vt.: Ashgate, Dartmouth. van Schagen, J.A. 2000. Electoral Systems and Repres- entative Government. Nijmegen, Belgium: Stichting Ars Aequi. CROSS REFERENCES Election Campaign Financing; Gerrymander; Voting Rights Act of 1965. ELECTIVE SHARE Statutory provision that a surviving spouse may choose between taking that which is provided in the will of the deceased spouse or taking a statutorily prescribed share of the estate. Such election may be presented if the will leaves the spouse less than he or she would otherwise receive by statute. This election may also be taken if the spouse seeks to set aside a will that contains a provision to the effect that an attempt to contest the will defeats the rights of one to take under the will. ELECTOR A voter who has fulfilled the qualifications imposed by law; a constituent; a selector of a public officer; a person who has the right to cast a ballot for the approval or rejection of a political proposal or question, such as the issuance of bonds by a state or municipality to finance public works projects. A member of the electoral college—an associ- ation of voters elected by the populace of each state and the District of Columbia—which convenes every four years to select the president and vice president of the United States. ELECTORAL COLLEGE The Electoral College consists of nominated persons, known as electors, from the states and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ELECTORAL COLLEGE 109 the District of Columbia, who meet every four years in their home state or district and cast ballots to choose the president and vice president of the United States. In the popular election, Americans actually vote for electors, not for the candidates themselves. The candidate who receives the majority of votes from electors takes office. Although the Constitution allows the electors to vote for any candidate, they usually vote for the candidate of the political party that nominated them. In a limited number of instances, the structure of the Electoral College has led to unusual election results. The republican basis of the Electoral College stems from the Constitution. When the foun- ders of the United States set out to secure a system of political representation, many among them feared mob rule. Elections based on representative blocks of votes would implement checks within the system. The Framers took into consideration that large numbers of regional candidates could appeal to the interests of various select groups, and thus the populace could be divided widely, and disturbances in the succession of power could ensue. They sur- mised that Congress should have the power to settle issues that are not resolved in a popular election, and thus they created the Electoral College. As a contributor to this system, ALEXANDER HAMILTON said that it made sure “the office of President will seldom fall to the lot of any man who is not in eminent degree endowed with the requisite qualifications.” Rogue politi- cians, riding any waves of popular sentiments, would need to meet a higher approval before their election. The Electoral College thus ensured an orderly transfer of power, especially in the two-party system that the United States developed. Number of Electoral Votes by State Fewer than 5 5–9 10–19 Number of electoral votes Hawaii 4 Alaska 3 Montana 3 Washington 11 Oregon 7 California 55 Nevada 5 Idaho 4 Wyoming 3 Utah 5 Colorado 9 New Mexico 5 Arizona 10 North Dakota 3 Minnesota 10 South Dakota 3 Nebraska 5 Kansas 6 Oklahoma 7 Texas 34 Wisconsin 10 Iowa 7 Missouri 11 Arkansas 6 La. 9 Illinois 21 Michigan 17 Indiana 11 Ohio 20 Pennsylvania 21 New York 31 W.Va. 5 Virginia 13 N.Carolina 15 Kentucky 8 Tennessee 11 Miss. 6 Alabama 9 Georgia 15 S.Carolina 8 Florida 27 Maine 4 Vt. 3 N.H. 4 Mass. 12 R.I. 4 Conn. 7 N.J. 15 Del. 3 Md. 10 D.C. 3 20–29 30 and over SOURCE: U.S. Census Bureau. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PER- MISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 110 ELECTORAL COLLEGE Electors receive their appointments from a wide and various infor mal circuit of possible electoral candidates du ring election times and are nominated in many states according to the guidelines of individual state legislatures. The procedures for nominating electors, whether at party conventions, primary elections, or party organizational meetings, differ throughout the United States. The terms of electors are generally not set by statute, and in some states parties adopt their own criteria for selec ting the college’s members. However, the Constitution provides that “no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector” (U.S. Const. art. II, § 1, cl. 2). In most states, only the names of the presidential and vice presidential candidates— not the names of the electors—appear on election ballots. The party that gains the most popular votes in a state receives one electoral vote for each of its electors. In each state, each party nominates the same number of electors as there are representatives and senators for that state in Congress. On the first Monday after the second Wednesday in December following the popular election, the electors from each state’s victorious party cast their ballots. The structure of the Electoral College was established in Article II, Section 1, of the U.S. Constitution. Under the original provision, each elector of the college cast two votes for president, and the candidate who received the second-highest number of votes assumed the vice presidency. In 1804 the TWELFTH AMENDMENT modified the original plan to separate the votes cast for the president and the vice president. The electors may choose to vote for another candidate—as West Virginia’s electors did in the 1916 race between CHARLES EVANS HUGHES and Woodrow Wilson. However, this occurs only rarely, and even less often does it sway the results of an election. As the electoral system is designed, generally, all of the electoral votes from each state go to the winner of the state’s popular vote. Only Maine and N ebraska do not use the winner-takes-all system; they use the district plan (discussed below). The electors sign, seal, and certify lists of their ballots. These lists go to Washington, D.C., where the president of the Senate, in the presence of the Senate and the House of Representatives, opens them. The votes are counted. If the electors fail to cast a majority vote, the House of Representatives chooses the U.S. president and vice president by ballot. In 1824 JOHN QUINCY ADAMS was chosen as president by the House. Although the recipient of the majority of the electoral votes is determined by the college, Congress retains the power of verifying the results and makes official the election of president and vice president. Although the workings of the Electoral College have not gone unchallenged, significant challenges are infrequent. However, the 2000 presidential election between GEORGE W. BUSH and ALBERT GORE Jr. inspired calls to reform or eliminate the national Electoral College. The election on November 7, 2000, w as one of the closest in U.S. history, and several media organizations erroneously announced Gore as the predicted winner before the election booths had closed. Bush gained significant ground, and by the end of the evening on November 7, it appeared he had won the vote through the Electoral College, even though Gore likely had won the national popular vote. The Electoral College consisted of 538 electors in 2000, one for each of the 435 members of the Hou se of Representatives and 100 Senators, and three for the District of Columbia. According to the U.S. Office of the FEDERAL REGISTER, for the 2000 election, 26 states and the District of Columbia had laws in effect that bound their electors to vote for the same candidate as the majority of the general populace in that elector’s state, and 24 did not. In most states, the pre sidential candidate who won the most popular votes then received all electoral votes from that state, referred to as the “winner- takes-all” feature. Only two states, Ma ine and Nebraska, allocated their electoral votes propor- tionally according to the popular vote. On December 18, 2000 (the second Wednesday in December), the electors met in their respective states and went through the formality of casting their votes for the candi- dates from the party that elected them. Each state then reported its totals to Cong ress, utilizing “Certificates of Ascertainment,” which list names of the electors and the number of votes received by each, and “Certificates of Votes,” which list all persons voted for as president and vice president and the number of electors voting for each person. The battle over the 2000 election focused on Florida’s 25 electoral votes. Questions arose in GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ELECTORAL COLLEGE 111 several Florida counties about the accuracy of the election results from polls in those counties. Soon after the election, officials from the Florida counties began to call fo r a recount of the ballots. After about a month of litigation and tense national debate, the U.S. Supreme Court, in Bush v. Gore (531 U.S. 98, 121 S. Ct. 525, 148 L. Ed. 2d 388 [2000]), ordered a halt to the manual recounting. Florida is a “winner- takes-all” state, and the election potentially hinged upon the popular vote in a single county in that state. If a recount were to show that Gore had received more popular votes than Bush in Florida, Gore would have received the 25 votes and would have won the election. In the months following the 2000 election, many states reconsidered their methods for appointing electors and also looked at institut- ing changes directed toward more control over electors’ votes. One of the areas for potential reform has focused on the differences in the requirements that electors cast their ballots for the same candidate who garnered a majority of the vote in the general populace in that state. A second area is the “winner-takes-all” feature in the majority of states. Although a few states have introduced bills to modify their systems, calls for reform have died down significantly. At the federal level, no electoral reform has progressed through Congress since 1804, when adoption of the Twelfth Amendment required electors to specify separate candidates for president and vice-president. Any reform would likely occur at the state level rather than the fede ral level. The 2000 election was certainly not the first to cause controversy. The presidential election of 1876 pitted Republican RUTHERFORD B. HAYES,a former governor of Ohio, against Democrat SAMUEL J. TILDEN, a former governor of New York. Reacting against the RECONSTRUCTION measures of Republicans in the South, Tilden received strong support from Southern Demo- crats. When the election returns came in on November 7, 1876, Tilden had clearly received the majority of the popular votes. However, Republicans determined that if they challenged the outcome of the voting in key areas of Florida, Louisiana, and South Carolina, Hayes could win. The Republicans sought victory at all costs and went all-out to claim the electoral votes from those states as their own. The Republicans waged a publicity campaign through the national press, suppressing the tallies of the popular vote. Republican election com- mittees managed to demonstrate that several key counties contained discrepancies in population figures, voter registration, and ballots cast. Democrats, for obvious reasons, contested the Republicans’ tactics. The parties agreed to let an electoral commission, appointed by Congress, determine the winner of the disputed electoral votes. The commission consisted of 15 members from the Supreme Court, the House, and the Senate. In the end, a Republican justice, JOSEPH P. BRADLEY, swayed the outcome of the commission’s findings. With fewer than 48 hours before Tilden’s scheduled inauguration, the commission announced that Hayes had won the necessary electoral votes. On March 3, 1877, Hayes was inaugurated. The results of the election posed issues for proponents and critics alike. Defend ers of the electoral system claimed that the problems surrounding the 1876 election had less to do with the college than with political corruption. They maintained that the election could have resulted in a greater debacle if the constitutional structure of the college had not finally settled the contested issues. Critics countered that direct elections would fit the wishes of the people better than did what looked like oligarchic manipulations of the college. In following years, critics added more ammunition to their attack with the election race between BENJAMIN HARRISON and Grover Cleveland in 1888. With an unusual demo- graphic breakdown of ballots, Harrison became president with the majority of electoral votes but with fewer popular votes than Cleveland. Throughout the next century, many wondered how such confused elections could take place. Proposed alternatives to the current Elec- toral College system generally fall into three categories. In the first, the candidate with the most popular votes in a state would automati- cally receive those electoral votes. This system would eliminate independent voting among electors. In the second proposed alternative, a proportionality scheme, the breakdown of popular votes would correlate directly with the breakdown of electoral votes. This plan would abandon the winner-takes-all structure of the college. In the third alternative, the district plan used in Maine and Nebraska, individual con- gressional districts would be treated as repre- sentative of a single electoral vote, and the two GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 112 ELECTORAL COLLEGE electoral votes that each state receives for its two senators would go to the winner of the majority of the districts. To some advocates, there also exists a fourth option: abolishing the Electoral College altogether and letting a direct vote of the people determine who wins the offices of president and vice president. However, no changes were made to the electoral college in either the 2004 or 2008 elections. Despite two controversial elections and occasional calls for change, the electoral system has more or less secured an extended series of peaceable transfers of power in the United States. Absent drastic changes in the political landscape, its role in selecting the U.S. president and vice president seems secure. FURTHER READINGS Abbott, David W., and James P. Levine. 1991. Wrong Winner. New York: Praeger. Glennon, Michael J. 1992. When No Majority Rules: The Electoral College and Presidential Succession. Washington D.C.: Congressional Quarterly. Gregg, Gary L., II, ed. 2001. Securing Democracy: Why We Have An Electoral College. Wilmington, Del.: ISI Books. Hardaway, Robert M. 1994. The Electoral College and the Constitution. New York: Praeger. Kuroda, Tadahisa. 1994. The Origins of the Twelfth Amendment. Westport, Conn.: Greenwood Press. Rose, Gary L. 1994. Controversial Issues in Presidential Selection. Albany, N.Y.: State Univ. of New York Press. Wayne, Stephen J. 1988. The Road to the White House. New York: St. Martin’s Press. ELECTRICITY Electricity was disc overed by BENJAMIN FRANKLIN in 1752. The electric generator was invented by Michael Faraday in 1831. Thomas Edison’s invention of the electric lightbulb in 1879 sparked the demand for electric power that continues into the early 2000s, ultimately resulting in the need for legislative and regulatory controls on the electric-power- generating industry. History By the end of the nineteenth century, the United States had completed its transition from using wood as a major energy source to using coal, and the next transition from coal to oil and natural gas was just beginning. By the early twentieth century, both homes and businesses increased their demand for electric power, and electric utilities obtained long-term franchises from municipalities. In 1920 the Federal Power Act (FPA), 16 U. S.C.A. §§ 791a–828c, was passed in response to increased competition between electric utilities and a lack of consistent service to rural areas. The Federal Power Act gave the Federal Power Commission the authority to license hydroelec- tric plants. Later, President FRANKLIN D. ROOSE- VELT encouraged Congress to create part II of the act, which gave the Federal Power Commis- sion the power to regulate the transmission of electric energy (16 U.S.C.A. §§ 824–824m). This legislation was necessary to guard against potential abuses of the utility companies’ monopolistic structure and to ensure adequate and consistent service nationwide. As more and larger electric generating plants were constructed and as more electric power lines were strung, legislators believed that through economies of scale, electric utility monopolies could actually offer lower costs to consumers than could competition between SOURCE: Energy Information Administration, Electric Power Monthl y , A p ril 2009. U.S. ELECTRIC UTILITIES REVENUE, 2008 Average Price Sales Electricity Industrial 982 billion kWh Residential 1,379 billion kWh Commercial 1,352 billion kWh Industrial 7.01 cents per kWh Residential 11.36 cents per kWh Commercial 10.28 cents per kWh ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PER- MISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION ELECTRICITY 113 smaller utilities. Because of the capital-inten- sive nature of providing electric power, and the costs of building plants and stringing lines, it is more cost-effective to spread these costs over the large and consistent customer base provid- ed by a monopoly. Structure of the Industry Modern electric utilities have three major organizational components: generation (power plants), transmission (high-voltage bulk power between utilities), and distribution (low-voltage power to ultimate consumers). Modern electric utilities not only produce the power they need for their consumers but also pool and coordi- nate excess electricity with other utilities. In 2007 the United States had the ability to produce more than 950,000 million megawatts of electrical energy, of which only 2.5 percent was from renewable energy sources (although this represented a steady annual increase). Pooling and coordination of electrical energy take place through high-voltage wires that are maintained and referred to as the national grid; high-voltage wires are used because they allow transmission at a lower current, which generates less heat and results in less energy loss. At regional distribution centers closer to the ultimate consumers, the electrical energy is transformed into the low-voltage, higher-current electricity delivered to homes and businesses. Major electric utilities produce electric power by burning fossil fuels or natural gas, harnessing the hydroelectric energy produced by dams, and initiating and maintaining nuclear fission. Smaller, independent power producers use hydroelectric energy in addition to wind energy, wood energy, geothermal energy, and biomass, which are all forms of renewable energy. Nuclear electric generating plants were constructed in 1957 , after the passage of the 1946 Atomic Energy Act (42 U.S.C.A. § 2011), which removed the government’s monopoly over NUCLEAR POWER, and the Price-Anderson Act (42 U.S.C.A. 2210), which allowed for private ownership of uranium. Commercial nuclear energy expanded in the 1960s and the early 1970s, and most consumers welcomed what was thought to be a safe and inexpensive source of energy. From the late 1970s to the 1990s, the dangers of nuclear energy and the expense of environmental contamina- tion and lack of safe waste storage contributed to the end of nuclear power plant construction. No U.S. nuclear power plants have been ordered since 1978. Coal and hydroelectric energy continue to be the principal sources of commer- cial electric power. Regulation The generation, transmission, and distribution of electric power are heavily regulated. At the federal level, the transmission of electric power between utilities is governed by the PUBLIC UTILITIES Regulatory Policies Act (PURPA) (Pub. L. No. 95-617 [ codified in various sections of U.S.C.A. tits. 15, 16]). In PURPA, Congress gave the Federal Energy Regulatory Commission (FERC) jurisdiction over energy transmission. PURPA requires that independent power producers (IPPs) be allowed to interconnect with the distribution and transmission grids of major electric utilities. In addition, PURPA protects IPPs from paying burdensome rates for purchas- ing backup power from major utilities and sets the rate at which the utilities can purchase power from IPPs at the major utilities’s “avoided cost” (market cost minus the production costs “avoided” by purchasing from another utility) of producing the power. The primary regulation of the generation, distribution, and transmission of electric power occurs at the state level through various state public utility commissions. Because the produc- tion of electric energy is connected with a PUBLIC INTEREST , states have a vested interest in overseeing it and working to guarantee that electricity will be produced in a safe, efficient, and expedient manner. In exchange for a monopoly in a particular geographic region, an electric utility must agree to supply electricity continuously and has a duty to avert unreason- able risks to its consumers. Electric utility companies must provide electricity at applicable lawful rates and must file rate schedules with the public service commissions. Sometimes these rates are challenged, and administrative hearings are held to allow the utilities to petition for rate increases. Electricity rates must be high enough to cover the cost of production and must allow a fair return on the current value of capital investment. Rates that would allow significantly more than a fair return may be struck down as unreasonably high. The regulatory landscape began to change in the late 1990s, as FERC e ndorsed the concept of greater competition in the sale of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 114 ELECTRICITY electricity. Advocates of competition con- tended that the production and delivery of electricity were two distinct activities that should not be bundled into one charge for the energy consumer. Instead, they argued f or a free market system where electricity could be bought and sold at the wholesale level for the lowest price and then delivered anywhere in the country. National energy producers and wholesalers sought to end the dominance of state and regional utility companies, which controlled the power lines through which these new competitors wanted to transmit electricity. FERC issued an order in 1996 that opened up the electrical transmission lines owned by state power utilities to o ther wholesalers of electricity. The order required that utility companies break out their wholesale electricity rates to show how much was being charged for the generation of power, the transmission of electricity, and other ancillary services. In addition, whatever these companies charged to transmit their own e lectricity was the maximum amount they could charge other companies that wanted to u se their transmis- sion lines. These regulations were also extended to the retail transmission of electricity in inter- state commerce. However, FERC rejected the calls of energy resellers (such as the Te xas- based Enron Corporation) to permit this same type of open access to retail power sales. This would have meant that consumers and businesses could obtain their power from an out-of-state provider, much like they can choose their long-distance telephone provider. FERC rejected this approac h because it feared that it would be costly and difficult to administer. The order led some states to deregulate their utilities to permit competition in this new legal environment. However, New York and eight other states objected to the order, believing it usurped state authority. They filed suit in federal court challenging the legality of the order. Enron also filed suit, challenging FERC’s denial of ac cess to the retail transmis- sion of electricity. The two lawsuits were consolidated and heard by the CIRCUIT COURT of Appeals for the District of Columbia. The appellate court rejected the arguments of the states and Enron, concluding that FERC had authority under the FPA to issue such an order. The Supreme Court, in New York v. Federal Energy Regulatory Commission (535 U.S. 1, 122 S. Ct. 1012, 152 L. Ed. 2d 47 [2002]), upheld the circuit court decision. The Court concluded that although the states had regulated electricity for 60 years, this did not mean they had the underlying authority to make such decisions. The federal government had merely allowed these practices to continue. FERC had the authority to issue the order and had exercised this power lawfully. Though FERC had the authority to allow Enron and other companies to enter the retail sales market, the Court held that FERC had acted within its administrative powers in declining to exercise its jurisdiction at this time. FERC’s decision not to claim jurisdiction over the retail market could be changed in the future. In 2 000 and 2001, the state of California was in the midst of an electricity crisis. A shortage of electricity led to skyrocketing prices, blackouts and brownouts, and expen- sive long-term contracts by the state to secure a supply of electricity into the future. The price of electricity jumped from $30 per megawatt hour to $361 per megawatt hour. S everal buyers negotiated power purc hase contracts that enabled them to buy in at below-market rates but commit them for a longer period of time. However, within months, allegations surfaced that wholesalers such as Enron had manipulated the market to create artificial shortages, which led to the sale of electricity at inflated prices. The buyers then sought action from FERC to void or renegotiate these contracts, arguing that they had been executed during a time when the market was “dysfunc- tional” and further seeking refunds of excess amounts paid under the contracts. Years of appeals and remands followed. FERC refused to modify the contracts, but finally, in 2007, the Ninth Circuit Court of Appeals SET ASIDE FERC’s decision as arbitrary and contrary to the FPA. It established its own test for a “zone of reasonableness” standard to determine whether a rate imposed undue burden on customers, a public interest consid- eration that would give FERC the authority to intervene. However, the Ninth Circuit decision was vacated by the U.S. Supreme Court in 2008, and the case was remanded back to FERC. In GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ELECTRICITY 115 the long-awaited decision of Morgan Stanley Capital Group Inc. v. Public Utility Group No. 1 of Snohomish County (554 U.S. ___, 128 S. Ct. 2733 [2008]), the high court reaffirmed that freely negotiated contracts for the sale of electricity under the FPA were presumed to be reasonable and just, in the absence of a showing that the rates impaired the public interest. The remand instructed FERC to reexamine whether the buyers’ claims of market manipulation would qualify as grounds for FERC intervention (modification of the contracts) in the public interest. Dangers and Liabilities Electricity, especially at high voltages or high currents, is a dangerous commodity. Faulty wiring, power lines that are close to trees and buildings, and inadequate warning signs and fences around transformer statio ns and over buried electrical cables can subject an individual to electric shock or even electrocution. Because of the ultra-hazardous nature of providing electric power, states have many statutes and regulations in place to protect the public from electric shock. Other dangers from electricity include stray voltage and electromagnetic field radiation. Stray voltage affects farm animals, especially dairy cattle. On dairy farms, it occurs when cattle drink from electric feeding troughs or are attached to electric milking machines, and small electric shocks pass through the cattle, through their hooves, and into the ground. Re- peated shocks can inhibit or destroy the milk- producing capability of dairy cattle. Liability for stray voltage on farms can be attributed to public utilities when wiring is faulty or negligently connected to a farmer’s equipment. Some juries have awarded thousands of dollars to farmers whose cattle have been damaged by this phenomenon. Electromagnetic fields are created whenever current moves through power lines. The strength of these fields drops off exponentia lly as the distance from the power lines increases. Individuals whose homes or businesses are close to power wires must live and work in these fields. Some individuals who live or work near high-voltage power lines have developed brain cancer and leukemia and blame their condition on the constant exposure to electromagnetic field radiation. Studies have shown a correlation between electromagnetic fields and cance r, but many of the studies have been challenged as methodologically flawed. By the mid-1990s, no conclusive SCIENTIFIC EVIDENCE proved an epide- miological relationship between cancer and the electromagnetic fields produced by high-voltage power lines. FURTHER READINGS Atterbury, Mark S. 1995. “The Strict Liability of Power Companies for Cancer Caused by Electromagnetic Fields.” Southern Illinois University Law Journal 19. Energy Information Administration. 2009. “Electric Power Industry 2007: Year in Review.” January 21, 2009. Available online at http://www.eia.doe.gov/cneaf/elec- tricity/epa/epa_sum.html.; website home page: http:// www.eia.doe.gov/ (accessed September 10, 2009) Federal Energy Regulatory Commission. Available online at www.ferc.gov (accessed December 16, 2009). Handmaker, Robert S. 1989. “Deregulating the Transmission of Electricity: Wheeling under PURPA sections 203, 204, and 205.” Washington University Law Journal 67. Hunt, Sally. 2002. Making Competition Work in Electricity. New York: John Wiley. Laitos, Jan G., and Joseph P. Tomain. 1992. Energy and Natural Resources Law. St. Paul, Minn.: West. Sweeny, James L. 2002. The California Electricity Crisis. Palo Alto, Calif.: Hoover Institution. Yelkovac, Peter G. 1994. “Homogenizing the Law of Stray Voltage: An Electrifying Attempt to Corral the Controversy.” Valparaiso University Law Review 28. CROSS REFERENCES Energy; Federal Preemption. ELECTRONIC FRONTIER FOUNDATION The Electronic Frontier Foundation (EFF) is a nonprofit organization that seeks to increase the understanding of civil liberties and other legal issues in cyberspace, or what it calls the electronic frontier. Concerned with preserving the principles embodied in the U.S. Constitu- tion and BILL OF RIGHTS, EFF defends the rights of computer users, network users, and members of the online community. Widely recognized for its expertise in legal matters related to computer networks and electronic media, EFF has become a leading resource for those seeking to better understand the complex issues associated with new commu- nications technology. As part of its civil liberties mission, EFF seeks to ensure that the creators of electronic communications have the same politi- cal freedoms as the creators of newspapers, books, journals, and other traditional media. EFF was founded on July 10, 1990, by Mitchell D. Kapor, the founder of Lotus GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 116 ELECTRONIC FRONTIER FOUNDATION Development Corporation and ON Technology, and John Perry Barlow, a writer and lyricist. Kapor and Barlow formed the organization after becoming alarmed by what they saw as misguided and unconstitutional actions by state and federal law enforcement officials against individual computer users. Initial funding for EFF came from Kapor, Steve Wozniak, co-founder of Apple Computer, and other computer and technology entrepreneurs. Among EFF’s first efforts were the defense of several hackers, or computer enthusiasts, in cases brought by the government. EFF has continued to sponsor lawsuits when it has felt that individuals’ online civil liberties have been violated. EFF also submits advisory reports, called AMICUS CURIAE briefs, to courts and arranges for the charitable donation of attor- neys’ services for individuals who cannot afford their own legal counsel. As part of its effort to promote laws that better accommodate new technology, EFF monitors legislation and lobbies for changes in the law. It also creates and distributes legal analyses to companies, utilities, governments, and other organizations, and it maintains a free telephone hotline for use by those in the online community who have questions regarding their legal rights. EFF runs a speakers’ bureau, which disseminates the organization’s views to law enforcement organizations, attorneys’ associa- tions, universities, and other groups. EFF promotes improved INTELLECTUAL PROP- ERTY laws, including patent and copyright laws, for electronic media. It also encourages the creation of policies that will promote the distribution of electronic information by public and private providers. EFF sponsors summits and working groups that bring together people from business, government, education, and nonprofit organizations. Specific proposals advanced by EFF include a “common carriage” approach to free speech on electronic networks. Under a common- carrier scheme, network providers must carry all speech, regardless of its content, but are not liable for the actions of users. EFF has called for an electronic freedom-of-information act to allow broader public access to information, and it has set forth specific proposals that promote wider access to computer networks such as the INTERNET. EFF publishes the EFFector Online, an electronic bulletin; the EFFector, a hard-copy newsletter; and various pamphlets and books. It maintains several communications forums on the Internet, including a web site and news group forums on Usenet and on private online systems. CROSS REFERENCES Computer Crime; E-Mail; Freedom of Speech. ELECTRONIC SURVEILLANCE Electronic surveillance is observing or listening to persons, places, or activities—usually in a secretive or unobtrusive ma nner—with the aid of electronic devices such as cameras, microphones, tape recor- ders, or wire taps. The objective of electronic surveillance when used in law enforcement is to gather evidence of a crime or to accumulate intelligence about suspected criminal activity. Cor- porations use ele ctronic surveillance to maintain the security of their buildings and grounds or to gather information about competitors. Electronic surveillance permeates almost every aspect of life in the United States. In the public sector, the president, Congress, judiciary, military, and law enforcement all use some form of this technology. In the private sector, business competitors, convenience stores, shop- ping centers, apartment buildings, parking facilities, hospitals, banks, employers, and spouses have employed various methods of electronic eavesdropping. Litigation has even arisen from covert surveillance of restrooms. Three types of electronic surveillance are most prevalent: wire tapping, bugging, and videotaping. Wire tapping intercepts telephone calls and telegraph messages by physically penetrating the wire circuitry. Someone must actually “tap” into telephone or telegraph wires to accomplish this type of surveillance. Bugging is accomplished without the aid of telephone wires, usually by placing a small microphone or other listening device in one location to transmit conversations to a nearby receiver and recorder. Video surveillance is performed by conspicuous or hidden cameras that transmit and record visual images that may be watched simultaneously or reviewed later on tape. Electronic eavesdropping serves several pur- poses: (1) enhancement of security for persons and property; (2) detection and prevention of criminal, w rongful, orimpermissible activity; and (3) interception, protection, or appropriation GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ELECTRONIC SURVEILLANCE 117 of valuable, useful,scandalous, embarrassing, and discrediting information. The law attempts to strike a balance between the need for electronic surveillance and the privacy interests of those affected. Constitutional Law The FOURTH AMENDMENT to the U.S. Constitution protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” It further provides that “no Warrants shall issue, but upon PROBABLE CAUSE, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Electronic surveillance did not exist in 1789, when this amendment was written, and was probably not contemplated by the Founding Fathers. But the colonists were familiar with unbridled methods of law enforcement. British officials conducted warrantless searches and seizures and made arrests based on mere sus- picion. Even when a search was made pursuant to a warrant, the warrant was often general in nature, vesting British officials with absolute discretion to determine the scope and duration of the search. The Fourth Amendment was carefully drafted in response to this colonial experience. It provides two basic protections. First, it prohibits government officials, or persons acting under COLOR OF LAW, from performing unreasonable searches and seizures. Second, it forbids magistr ates from issuing warrants that are not supported by probable cause or that fail to specify the persons, place s, and things subject to SEARCH AND SEIZURE. The Supreme Court has held that searches performed without a warrant are presumptively unreasonable. When a search is presumptively unreasonable, evidence seized by the police during the search will not be admissible against the DEFENDANT at trial unless the prosecution demonstrates that the evidence seized falls within an exception to the warrant requirement such as the good faith exc eption. The Supreme Court first considered the Fourth Amendment implications of electronic surveillance in Olmstead v. United States, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928). In Olmstead, federal agents intercepted incriminat- ing co nversations by tapping the telephone wires outside the defendant’s home without a warrant or his consent. In a 5–4 decision, the Court ruled that electronic eavesdropp ing involves neither a search nor a seizure, within the meaning of the Fourth Amendment. The Court reasoned that no search took place in Olmstead because the government intercepted the conversations without entering the defen- dant’s home or office and thus without examining any “place.” No seizure occurred because the intercepted conversations were not the sort of tangible “things” the Court believed were protected by the Fourth Amendment. In a prescient dissent, Justice LOUIS D. BRANDEIS argued that nonconsensual, warrantless eaves- dropping offends Fourth Amendment privacy interests without regard to manner or place of surveillance. The Supreme Court whittled away at the Olmstead holding for the next 40 years, finally overruling it in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). In Katz, the police attached a listening device to the outside of a public telephone booth where the defendant was later recorded making inculpatory statements. The Court declared this type of warrantless surveilla nce unconstitu- tional. The Court emphasized that the Fourth Amendment protects persons, not places, and held that the amendment’s protections extend to any place where an individual maintains a reasonable expectation of privacy. The Court determined that in Katz, the defendant main- tained a reasona ble expectation of privacy in both the particular conversation he had and the public telephone booth where it took place. Katz made government electronic surveillance, and legislation authorizing it, subject to the strictures of the Fourth Amendment. As technology continues to develop, the Court has had to consider new me thods of investigation by law enforcement officials. In Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2035, 150 L. Ed. 2d 94 (2001), the Court considered the constitutionality of the use of a thermal imaging device during surveillance of a home. An agent of the U.S. DEPARTMENT OF THE INTERIOR suspected that the defendant, Danny Kyllo, was growing marijuana in his home. The officer knew that indoor marijuana growth requires use of high-intensity lamps, and the officer sought to discover the presence of these lamps through the use of the thermal imaging device. The device demonstrated that the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 118 ELECTRONIC SURVEILLANCE . the concept of greater competition in the sale of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 1 14 ELECTRICITY electricity. Advocates of competition con- tended that the production and delivery of electricity. BY PER- MISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION ELECTRICITY 113 smaller utilities. Because of the capital-inten- sive nature of providing electric. FERC. In GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ELECTRICITY 115 the long-awaited decision of Morgan Stanley Capital Group Inc. v. Public Utility Group No. 1 of Snohomish County (5 54 U.S.