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New York's Vision Zero success provides road map for others taking aim at pedestrian deaths

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As Canadian cities struggle to find solutions to traffic-related pedestrian and cycling deaths, New York City is touting its remarkable four-year turnaround in making its streets safer — something the mayor says is the result of going all in on a Sweden-conceived road safety program.

New York credits its "Vision Zero" program for a 44 per cent drop in pedestrian deaths since 2014, with overall traffic fatalities down by 27 per cent. The first half of 2018 has seen the fewest traffic-related fatalities in any six-month period ever measured in America's most populated city, officials say.

"The last time city streets were this safe, people were getting around in a horse and buggy," New York Mayor Bill de Blasio said earlier this year.

Vision Zero's goal is to reframe how cities look at traffic fatalities — not as "accidents" but preventable incidents that can be addressed through a combined approach involving road design, public outreach and increased enforcement.

The term was coined in Sweden in the 1990s, and tailored programs have been rolled out by multiple cities in Europe, as well as more than 30 cities across the U.S. Variations of the program have been adopted in a handful of Canadian cities, including in Toronto, Hamilton, Edmonton, Montreal and Vancouver.

While the National Highway Traffic Safety Administration says traffic fatalities have increased across much of the U.S., New York is bucking that trend.

De Blasio, who campaigned heavily on the program in 2013 and during his re-election bid last year, plans to spend $1.6 billion US by 2022 to make the city's roads safer.

City officials caution there's no one solution — and like anywhere, New York's bike lanes and the slowing of traffic have come up against stiff opposition. So while Vision Zero remains controversial, New York's transportation officials and safety advocates say the experience of the largest U.S. city offers a road map for others.

Here's a look at five areas where Vision Zero is working in New York City.

Road redesign

In the 1990s, Queens Boulevard was known as the "Boulevard of Death," a morbid nickname that reflected the carnage that was commonplace on the main thoroughfare that runs through the city's borough of Queens. According to the New York Times, a total of 186 people were killed or seriously hurt on Queens Boulevard since 1990.

In 2015, a large stretch of the road was redesigned; Queens Boulevard underwent what's called a road diet.

Two lanes of traffic were removed from the 12-lane roadway to make room for buses and bike lanes. To slow traffic down, the speed limit was reduced and lanes narrowed.

Crosswalks were installed and medians were widened to give pedestrians more space and to shorten the distance they had to cross. Crossing signals were also tweaked, giving pedestrians more time. Protected bike lanes were installed along the centre medians, away from the parked cars and bus lanes.

A look at how Queens Boulevard used to look before the Vision Zero-inspired redesign. There are no bike lanes and pedestrians found crossing the long distance treacherous. (New York Dept. of Transportation)
A look at Queens Boulevard after the redesign. Lanes were narrowed and bike lanes were installed. Medians and crosswalks were widened to give pedestrians more time and space to cross. (New York Department of Transportation)

Since the changes, the number of deaths along the redesigned stretch of Queens Boulevard has gone down to zero.

"If we could bring [Queens Boulevard] from the 'Boulevard of Death' to a place where people want to walk and want to bike, then really nothing is impossible," said Julia Kite, with New York's Department of Transportation.

Giving pedestrians a head start of a few seconds — known as leading pedestrian intervals — is one way of engineering safety, she said. Research shows that this step, which was recently adopted at a dozen intersections in Toronto, reduces crashes by 60 per cent.

"There's no reason to accept that it's just … the status quo, the fact that people are going to get hit or killed or injured in traffic," Kite said. "It's a way of realizing that we can engineer out of consequences of human error."

This graphic shows the physical changes made to Queens Boulevard, aimed at lowering speed and increasing safety for drivers, cyclists and pedestrians. (City of New York Department of Transportation.)

Bike lanes

The number of cyclists in New York City has dramatically increased in recent years — and the city has been working to make space for them.

Citi Bike, the city's bike-sharing program, has 12,000 bikes at more than 750 stations around the city, and more than 143,000 annual members. New York also has 738 kilometres of protected bike lanes, with close to 100 kilometres being built since Vision Zero started.

A cyclist crosses the Williamsburg Bridge between Manhattan and Brooklyn, one of the busiest cycling corridors in the city. New York estimates there are more than 1.5 million people who have cycled at least once in the last year. (Steven D'Souza/CBC)

"I think that things have improved tremendously in this city. I would not have imagined all these bike lanes every place — protected bike planes to ride in. We've come a long way," said Eben Weiss, the writer behind the blog Bike Snob NYC.

Eben Weiss is the author of Bike Snob NYC. He says while Vision Zero has succeeded overall, the city needs to do a better job of enforcement and drivers aren't punished severely enough for traffic infractions. (Tiffany Foxcroft/CBC News)

New York is no different from any other city when it comes to drivers, cyclists and pedestrians arguing about who owns the road, he said. Yet despite its recent successes, Weiss says the city still has a long way to go to bring cyclists up to an equal footing with cars.

"These bike lanes are tiny slivers in a city that is just criss-crossed with highways, parking garages, everything.… It's so skewed [toward drivers]," he said. "We are taking something massively skewed and making it a hair less so."

Traffic enforcement

According to New York officials, simply redesigning roads won't achieve results without traffic enforcement to back it up. Under Vision Zero, the city has increased the number of traffic tickets issued for offences such as distracted driving, speeding or failing to yield to pedestrians by nearly 40 per cent.

"While we can never completely eliminate people making mistakes, we can make sure that those mistakes don't have catastrophic consequences," said Kite. "We're taking a combination of engineering enforcement and education to make sure that this reaches all New Yorkers."

Julia Kite, with New York City's Department of Transportation, says the goal of Vision Zero is a culture change, getting New Yorkers to completely reconsider how they think about driving. (Tiffany Foxcroft/CBC News)

New York strategically increased enforcement on six traffic violations it identified as being the most likely to kill or injure, including:

  • Speeding.
  • Failing to yield to a pedestrian. 
  • Failing to stop on a signal. 
  • Improper turns. 
  • Cellphone use.
  • Disobeying signs.

Between 2013 and 2017, the number of summonses issued for these offences increased by 41 per cent.

While traffic enforcement can sometimes be viewed as arbitrary or a money grab, the numbers may tell a different story. Toronto, for example, is seeing an opposite trend. CBC News looked at the number of traffic tickets issued for similar offences to those identified as key to safety by New York City.

According to numbers from the Ontario Ministry of the Attorney General, the number of traffic charges laid in Toronto between 2008 and 2017 decreased by 45 per cent. During that same period, Toronto police report the total number of traffic fatalities in the city increased by 16 per cent. Pedestrians deaths alone increased by 37.9 per cent.

This year is shaping up to be even deadlier, with 20 pedestrians and three cyclists killed so far, according to Toronto police.

Speed control

Controlling speed has been a major — and controversial — part of New York's Vision Zero program.

In June 2014, New York installed cameras in 140 school zones to serve as a deterrent to speeding. In the program's first two years, the number of speeding violations issued in the camera zones decreased by 63 per cent, injuries were down 17 per cent and fatalities were down 55 per cent.

A speed camera in the Bronx keeps a watchful eye over a neighbourhood street outside an elementary school. The state law authorizing the cameras was recently allowed to expire, meaning the cameras have gone dark. (Tiffany Foxcroft/CBC News)

"The evidence shows that even the difference between being hit at 30 miles per hour (48 km/h) versus being hit at 25 miles per hour (40 km/h) makes a tremendous difference in pedestrian odds of surviving," Kite said.

But the cameras went dark last month, the victim of a battle between state and municipal governments. The temporary law authorizing the cameras expired as state legislators argued about next steps, ultimately ending their session without issuing an extension — even as city officials touted the success of the cameras.

North of the border, some Canadian cities are starting to drop speed limits, too.

In Montreal, for example, the maximum speed on some major arteries has been dropped to 40 km/h and 30 km/h in some school zones. But some residents say speeding remains an issue and enforcement needs to be increased.

Political will

Implementing Vision Zero hasn't been easy. The difference in New York has been political will.

In July, after a months-long debate over protected bike lanes in one Queens neighbourhood, where the community voted heavily against them, the mayor overruled that decision and went ahead with the plan anyway.

"We think safety has to be a priority; we can never sacrifice safety for convenience or anything like that," said Kite.

And there are lessons for other cities struggling to make Vision Zero a reality, she says: Have a lot of tools ready and realize that no one solution or template will work everywhere.

"It's got to be a combination of things," she said. "You've got to have a really strong team always looking at what's going on, looking at the data, and making sure what you're doing is grounded in evidence.

"And [then] combining different strategies into this one picture of safety."

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The World’s Most Peculiar Company

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Above, clockwise from top left: The Red Light Levitating Bluetooth Speaker, Your Personal Einstein Genius Homework Robot, the Hypnotic Jellyfish Aquarium, the Indoor Flameless Marshmallow Roaster, the Hydrotherapy Heated Foot Bath, the Only Wireless CD Player, and the R2-D2 Coffee Press

When I was growing up, my family, like many others, got the Hammacher Schlemmer catalog delivered to our apartment. We never actually ordered anything from it, but I liked to daydream about belonging to a family who did. Whereas my real parents’ mail-order shopping was limited to the occasional windbreaker from Lands’ End, my imaginary Hammacher mom and dad purchased hovercraft, personal submarines, and giant floating trampolines with abandon. They knew how to party.

Between 1983 and 2005, there was a Hammacher Schlemmer store at the foot of Tribune Tower on Michigan Avenue. I remember gawking outside, thinking that the stones and bricks embedded in the building’s façade—Colonel McCormick’s prized samples from the Great Pyramid, Notre Dame Cathedral, and beyond—were just part of the store’s inventory. After all, if anyone were going to sell a section of the Parthenon, it would be Hammacher Schlemmer.

The store shuttered its doors, but the company is still around, headquartered in the northwest suburbs. And it continues to publish its signature catalog, as it has for the past 137 years. Hammacher Schlemmer mails out 50 million of them a year, in fact. It’s the longest-running catalog in American history.

These mail-order catalogs of bizarre gadgets, esoteric tchotchkes, and peculiar wellness treatments adhere to the same format and style as the ones delivered to my family’s apartment more than 20 years ago. With few exceptions, the four items per page are laid out in a quadrant, each with a photo, a dense block of explanatory text, and, most famously, a descriptive title. Open the 2018 spring catalog supplement and you’ll find the Genuine Handmade Irish Shillelagh, the 911 Instant Speakerphone, the Clarity Enhancing Sunglasses, and the Closet Organizing Trouser Rack all on one page.

In the age of Amazon, few things represent an ethos more diametrically opposed to the “everything store” than the Hammacher Schlemmer catalog. Typing “socks” into Amazon’s search bar yields a seemingly infinite number of options. But the Hammacher Schlemmer spring catalog supplement offers only the Best Circulation Enhancing Travel Socks and the Plantar Fasciitis Foot Sleeves, 45 pages apart. There are no algorithmically predicted product placements or targeted suggestions.

The mere existence of Hammacher Schlemmer these days invites some fair, yet pointed, questions. Who’s buying this stuff? immediately pops to mind. As does: How has the company lasted this long? And: What kind of person sees the Wearable Mosquito Net and thinks, I must have this?

For much of its history, Hammacher Schlemmer was a distinctly New York brand. It still maintains its only physical store on East 57th Street in Manhattan, but the headquarters have been in the Chicago area since merchandiser and collectible-plate magnate J. Roderick MacArthur (of the MacArthur “genius” grant family) bought the company and relocated it in 1981. As the home of catalog pioneers Montgomery Ward and Sears, Roebuck, Chicago was a natural fit for the nation’s most august purveyor of the mail-order medium.

You can find Hammacher Schlemmer’s offices on a broad stretch of Milwaukee Avenue in Niles. The first thing you see when you walk through the double glass doors of the former car dealership is a sunken indoor park, where ferns surround a gurgling stream. A series of displays in the carpeted lobby off the atrium documents the company’s history. One is dedicated to Hammacher Schlemmer’s “notable patrons,” including Steve Jobs, Marilyn Monroe, and Queen Elizabeth II.

Past those displays you’ll come to the Wall of Firsts, a long row of framed posters depicting various objects that debuted in the pages of the catalog. It begins with the First Pop Up Toaster (1931) and proceeds to such advents as the First Electric Food Blender (1934) and the First Microwave Oven (1968). It loses a little steam in the 2010s, thanks to items like the First Fashionista Christmas Tree (2012), yet finishes strong with the First Wellness Monitor Wristband (2015)—a Fitbit, though Hammacher Schlemmer won’t tell you that.

“Our website is modern, like every website,” says the company’s director of merchandising. “But the reality is that [the catalog] is the more sophisticated piece of marketing.”

Hammacher Schlemmer’s policy has long been to remove product logos and brand names from its catalog. In the 1980s and ’90s, this was just another example of the retailer’s quirks, a vague gesture toward the privilege of ignorance: Just give me the best vacuum, I don’t care who makes it or how much it costs.

But these days there’s a more practical reason. Stephen Farrell, Hammacher Schlemmer’s director of merchandising, leads the team of buyers responsible for filling out the company’s eclectic inventory. He says the no-brand-name strategy is “particularly relevant today,” as Hammacher Schlemmer hopes to prevent people from simply searching for the products on Amazon and buying them there. (About 45 percent of the catalog inventory is exclusive to Hammacher Schlemmer. “We would prefer nothing is on Amazon,” Farrell tells me, though he says it’s not a deal breaker.)

For example, Hammacher Schlemmer features an item it calls the Barber Eliminator. Per the catalog: “The unit is moved through your hair while accommodating the contours of your pate.” It took me 20 minutes to find the electric razor on Amazon under its official name: the Conair Even Cut Rotary Hair Cut Cutting System. It’s $20 cheaper on Amazon, though it doesn’t come with the lifetime guarantee Hammacher includes with all its products. This is a feature that seemingly everyone I encounter in Niles is eager to tell me about, usually along with the question of whether or not I have heard the story about the poop Roomba.

The folks at Hammacher Schlemmer love the poop Roomba story. It goes like this: In 2016, a man in Little Rock, Arkansas, purchased a robotic vacuum from Hammacher Schlemmer. One evening, while on its automatic timer, the Roomba encountered a pile of puppy excrement and proceeded to spread and spray dog feces all over the house as it traveled along its algorithmically determined route. The man’s Facebook post about the ordeal went viral (359,709 shares, as of this writing), and in it he gives “mad props to Hammacher Schlemmer” for making good on its lifetime guarantee and issuing a full $400 refund.

I can’t imagine the Barber Eliminator getting into any similar kind of trouble, but it carries the same guarantee nonetheless. Were I in the market for an at-home haircutting device, I’m not sure page 32 of Hammacher Schlemmer’s spring catalog supplement would be the first place I’d look for it, but that’s not the point. The catalog tries to sell the item’s purpose (the elimination of my barber) before the product itself. The goal is to persuade page flippers to enter the DIY haircut market right then and there, when they’re least expecting it.

“We paginate our catalog almost in a treasure-hunt kind of way,” Farrell says. “It’s intentionally mixed up. Hopefully, we’re surprising you and delighting you. Whether you call or go to the internet to make the transaction is a whole nother question.”

Hammacher Schlemmer isn’t allergic to the internet, and it wasn’t blindsided by the rise of e-commerce. In 1986, the company opened a virtual store on CompuServe and became one of the first major retailers to sell wares on the web. It launched similar ventures with Prodigy and America Online before unveiling its own website in 1998. In 2005, online sales accounted for one-third of its revenue. These days, according to Farrell, the majority of orders come from the website (which he refers to as a “repository”), but the retailer believes the catalog is what pushes people there.

“Our website is modern, like every website,” Farrell says. “But the reality is that this”—and here he picks up a catalog—“is the more sophisticated piece of marketing.”

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In Hammacher Schlemmer’s lobby museum hangs an enlarged and framed page from the 1878 New York phone directory, the city’s first, upon which is listed the misspelled name Hamacher & Co. It serves as proof that the peddler of aggressively futuristic items like the Hair Rejuvenating Laser Comb and the Medical Grade LED Wrinkle Reducer is one of the country’s oldest companies.

In 1848, a German immigrant named Charles Tollner opened a hardware store on the Bowery in New York that would eventually become Hammacher Schlemmer. He was selling hammers and nails there back when West Virginia was still part of normal Virginia.

Tollner invited his 12-year-old nephew, William Schlemmer, to help work on the floor shortly thereafter. Albert Hammacher, a family friend, invested $5,000 in the store in 1857, and when William bought out his uncle in 1867, the two became partners. Under Albert and William’s direction, the business grew famous for its exhaustive and organized inventory.

Hammacher & Co. was a shopping destination not just because of what it sold but for how it sold it. Screwdrivers and bolts were displayed on velvet beneath glass in mahogany cabinets. The store was staffed with smartly dressed salesmen who wore white gloves and would pluck tools from the cases with theatrical care. The ostentatious environment attracted an auspicious clientele, and Isaac Singer built his first sewing machine with parts obtained from those lavish cupboards.

Hammacher Schlemmer started publishing a catalog in 1881, and the business ballooned. Early editions were hardbound and contained beautiful hand-drawn illustrations of workbenches, mortise locks, and plumb bobs—every item the subject of a delicately crosshatched likeness. At a Tolstoyan 1,112 pages, the 1912 catalog remains Hammacher’s largest, and a copy currently resides in the Smithsonian.

According to company documents, Russian czar Nicholas II ordered “a lot of everything” from the 1916 catalog. A comprehensive one-of-each selection was duly shipped to His Excellency, who was assassinated in July 1918. What exactly happened to all that Hammacher Schlemmer gear is a matter of some dispute, but the triumphant Bolsheviks are said to have placed their own order from the catalog shortly after their victory.

In the 1920s, the retailer began to move away from hardware and toward pianos, home goods, and assorted paraphernalia. While the inventory may have changed, Hammacher Schlemmer’s catalog business thrived. It’s the single, unbroken thread that connects Hammacher & Co. on the Bowery in the 1800s to the Hammacher Schlemmer of today.

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J. Roderick MacArthur died in 1984, but his influence on how Hammacher Schlemmer operates is still substantial. He came up with the idea for the Hammacher Schlemmer Institute, an internal product-testing laboratory that has run the company’s “best” trials since 1983. As a wealthy man on the go, MacArthur was willing to pay a premium for the luxury of not having to shop around for the best umbrella, money clip, or AM radio—and he knew that there were others like him, too.

The Hammacher Schlemmer Institute currently tests between 1,000 and 1,500 products a year, focusing mostly on electronics and Hammacher’s more ordinary items. Sadly, it can’t easily fit a hovercraft in its laboratory, which is the size of a small high school classroom and located on the headquarters’ second floor. That is where I meet Mohammed Faraj, the director of the institute. Tall and broad-shouldered, Faraj speaks softly and with an accent (he was born in the West Bank but has lived in America since 1985). At work, he wears a lab coat. His five-­person team is responsible for verifying the bold declarations made in the catalog. They’re the ones who make sure that the Best Cordless Hand Vacuum is really the best and that the Pressure Reducing Coccyx Cushion actually reduces pressure on your tailbone.

On the day I visit, they are testing garment steamers. Six of the spindly devices are neatly lined up, though they are surrounded by clutter. An anemometer (which measures wind speed) sits on a table in the center of the room, along with a toy crossbow, Superman-logoed Bluetooth headphones, and an oil diffuser that looks like a chrome bong. Stacked on a bookshelf along one wall are robots, a Wi-Fi doorbell, a webcam-enabled bicycle helmet, an air-powered baseball tee, and a Danish pillow set that purportedly regulates body temperature. There’s also a box of Rice Krispies, to be used as detritus for vacuum trials.

It looks like a Hammacher Schlemmer catalog has exploded. But to be more precise, I am at the scene of an implosion. The institute is tasked with attrition, with following an unbending directive to narrow merchandise down until only items deemed Hammacher-worthy remain.

Three institute employees accompany Faraj during my visit. One unpacks a suitcase and retrieves a twisted knot of business-casual apparel—fodder for testing the steamers. “We leave it for 48 hours each time, and we ball it up the same way,” she says of their efforts to ensure relatively consistent wrinkling of the clothing.

Stacked on a bookshelf along one wall of the testing lab are robots, a Wi-Fi doorbell, a webcam-enabled bicycle helmet, an air-powered baseball tee, and a Danish pillow set that purportedly regulates body temperature.

On a whiteboard near the lab’s back wall are equations scribbled in dry-erase marker: a mess of superscripts, subscripts, and Greek letters. It’s Homes’s law, Faraj explains, which relates to the proportional temperature of superconductors. They had been testing electric blankets, even though it’s April and summer is just around the corner.

Seasons don’t exist for the Hammacher Schlemmer Institute as they do in the real world. “We’re six months ahead of the catalog,” Sheri Camarata, the senior manager of the institute, tells me. “We’re testing heaters in the summer and air conditioners in the winter.” The team recently evaluated snowblowers. “We got lucky,” Camarata says. “We had a bad spring and a foot and a half of snow.”

A selection of items to be tested for the holiday catalog awaits in the side-entrance foyer downstairs. Among them: artificial Christmas trees. I could tell they were fake by the lack of pine smell, but they otherwise made for a pretty convincing little forest. Hammacher Schlemmer features an exclusive product it calls the World’s Best Prelit Fraser Fir. The 12-footer was listed at $2,000 in last year’s catalog and was advertised as having “more tips than any tree on the market.” According to the catalog copy, it is “the only tree with three-­dimensional, injection-molded branch tips that replicated the exact growth patterns, cascading branches, and fine, soft green needles of a freshly cut Fraser Fir.” I’m no arborist, but judging by the fullness of the big green guy next to the window, this impressive plastic beast was the famous Fraser.

The Fraser earned its “best” title after undergoing an inspection to verify that it does, indeed, have the most tips of any tree (5,890). “It may seem hard,” Faraj tells me of the process of counting each needle, “but we developed a method where you look at it in segments.” The Hammacher catalog can be absurd, but its stewards treat the absurdity the only way they know how: with grave sincerity and punctilious care.

While Farrell says Hammacher Schlemmer caters to a broad customer base, he grants that the demographics skew older. “Our strength is definitely 50-plus,” he says. The catalog, like its customer, has aged into a niche. Once a hot spot for the tech-savvy, Hammacher Schlemmer now also accommodates those who still cling to their VHS tapes and Kodak slides. “When you’re looking for unique products,” Farrell says, “sometimes you’ll find theoretically end-of-life products.”

Hammacher Schlemmer recently sold its last VCR-to-DVD converter, though the product’s retirement was not the retailer’s choice. “Nobody’s making the [VHS] heads,” Farrell says. “We’ve been working for four years to see if we can get someone to manufacture that, but no one will.” He pauses. “We’re not giving up.”

I was surprised to find the Only Wireless CD Player in so many recent issues of the catalog, but Farrell assures me that if a product is repeatedly listed, that means it’s selling. (The Dohm Marpac is Hammacher Schlemmer’s king of longevity. This squat machine, roughly the size of an old rotary phone base, produces ambient white noise to help you sleep. It has been featured in every catalog since 1964.)

During the Reagan era, MacArthur revamped the company to cater to young executives. It is still selling to those same execs now, though they have long since retired and are suffering from terrible foot pain. Search “plantar fasciitis” on Hammacher Schlemmer’s site and you’ll find 30 products.

MacArthur originally marketed to a hypothetical Hammacher Man, but the gender split is now more or less even. Beyond being older, today’s prototypical Hammacher Schlemmer customer is also wealthy and educated. “They would definitely be considered top 10 percent in household income, a lot of postgrads,” Farrell says. “That’s why we feel the copy is important.” Where else can one find a backpack described as “Brobdingnagian” or a walking stick crafted from “sustainably coppiced blackthorn (Primus spinosa)”?

The text is matter-of-fact, with odd literary flourishes, and the titles are concise, yet deceptively clever. “I could go on for hours talking about titles,” says John Gagliardi, who, as Hammacher Schlemmer’s senior creative manager, oversees the catalog’s unmistakable copy. “We agonize over titles.” The company employs two full-time copywriters and a stable of contributors to write the extensive product descriptions.

The NASA Strength Sun Hat harnesses “the same technology used in space suits.” That galactic selling point doesn’t overshadow the product’s earthly benefits, like the “wide brim” and a “radiant barrier” that “imparts a UPF 50+ rating to the hat.” If a product is unisex (the sun hat is), then that will always be noted, as will whether or not it requires batteries (it does not). At 153 words, the hat’s description is about the average length for Hammacher Schlemmer. A standard catalog is 88 pages long, give or take, meaning that, at four products per page, there are roughly 53,856 words in every issue. That’s more verbose than The Great Gatsby (47,094 words).

“We consider our persona as the manservant or the butler,” Gagliardi says of Hammacher Schlemmer’s frank and detached copy. The language is a tonal continuation of the 19th-century store’s white-gloved salesmen. “We don’t engage in hype,” he continues. “If you read through our catalog, you’ll be hard-pressed to find an exclamation point.” I hard-press him, and he concedes that his team has used that punctuation mark—but only in a quote. “We have a bear that plays peekaboo with you. The bear says, ‘Peekaboo, I see you!’ We’ll put the exclamation point there.

“Our customers are very intelligent,” Gagliardi tells me. “They don’t need to be told what to do, or how to do something.” But what I think he really means is that they believe they don’t need to be told how to do something. The Hammacher Schlemmer Institute often has to rewrite instruction booklets if customer response indicates people are having trouble understanding how a product works.

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“Where everybody else keeps zig-zagging to figure out what to do in retail, we tend to stay right in the same path,” Farrell tells me. This consistency—or stubbornness, if you see it that way—may have been a wise move in hindsight, when you consider what’s happened with other retailers. Lands’ End reduced the number of catalogs it sent to consumers in 2000, and the New York Times reported in 2015 that this decision helped contribute to a $100 million drop in sales. J.C. Penney suspended its catalog in 2012, only to revive it three years later, after internal research demonstrated its viability as a modern marketing tool.

Hammacher Schlemmer is set up as an ESOP (employee stock ownership plan) and has been employee-owned since 2014. Because it’s a private company, it’s a little difficult to gauge its financial health. Crain’s Chicago Business estimated Hammacher’s 2016 revenue to be $156 million. That was down 7 percent from its estimate of $168 million a decade earlier. In the retail industry, it isn’t sanguine to count that relatively modest slippage as a win. The company employs about 50 people in its Niles offices. Depending on the season, up to about 200 people work in its call center and warehouse outside Cincinnati.

Hammacher Schlemmer has certainly fared better this millennium than its closest competitors have. The Sharper Image closed its brick-and-mortar outlets in 2008, and Brookstone declared bankruptcy in 2014. Both those companies relied on stores, usually in malls, while Hammacher Schlemmer never operated more than three locations.

Still, Hammacher Schlemmer is the only company I’m aware of that sells products it knows no one may buy.

In Hammacher Schlemmer parlance, these are called “image items,” and one is usually put front and center in each of its catalogs. “Our focus in the last 20 to 25 years has been to put something on the cover that makes you go, ‘Wow, what is that?’ ” Farrell says. “We actually almost like it better when you don’t know what it is.”

These are the hovercraft, flying cars, and personal submarines that my family so cruelly refused to buy, and they are the products that have defined so much of Hammacher Schlemmer’s image. Their practicality is almost always inversely proportional to their astronomic cost. The purpose of these items is simply to lure and entertain the reader, but they are so important to Hammacher Schlemmer that the company employs a full-time buyer dedicated to finding them.

“The hardest part is tracking these companies down,” John Pinto tells me. Pinto has been Hammacher Schlemmer’s image buyer since the position was created five years ago. I ask him about a $5,000 motorized unicycle that appears on the cover of the spring preview catalog. “That’s from a guy out of Portland,” he says. “It pops off the page. You think, Hmm, I’ve never seen that before.”

When he saw a floating jungle gym while vacationing at a resort in Cabo San Lucas, Mexico, Pinto sought out and persuaded the manufacturer to put its device in the catalog. Hammacher Schlemmer dubbed it the Navigable Water Park and listed it at $71,000. “Most of our customers will get a laugh out of it, and we hope they say, ‘Only Hammacher Schlemmer would carry this floating water park,’ ” Pinto tells me.

The water park is actually semipractical compared with some of Hammacher Schlemmer’s other image items. “We had a really interesting underwater apparatus,” Pinto says. “It was a belt that you would strap to your waist that had aqua jets on it, but it was designed and built for the military. In order for a U.S. resident to purchase it, you had to apply with the State Department. We love that stuff, so we put it in the copy.”

Occasionally people do buy such items. Hammacher Schlemmer has sold hovercraft golf carts and a few refurbished London taxis, Pinto says. I ask if anyone has bought the aqua-jet belt. “I kind of remember seeing a couple of applications coming in,” he says, “but I can’t recall if they went through.”

If aqua-jet belts aren’t selling, what exactly is? What makes for a hot Hammacher Schlemmer product in 2018?

At the Hammacher Schlemmer Institute, I’m introduced to the Live Conversation Speaking Translator, an item that the lab folks seem pretty excited about and that Farrell says is selling well, even with a $350 price tag.

Manufactured by a Hong Kong education company, the device is roughly the size of an electric toothbrush. It comes with 12 language options, including French, Italian, and Japanese. An institute researcher demonstrates it for me by speaking Polish into the mic. Out of the speaker comes a robotic-voiced translation: “Good morning, how are you?” “I’m doing great,” I reply, and it chirps out a Polish translation. I have no clue if it is accurate, but I am inclined to take the team’s word for it. Earlier in the day, they had been doing Polish-to-Arabic, with Faraj attesting to the veracity of the latter.

“This is an example of a product that, in the electronics market, will probably play itself out pretty fast,” Farrell says. “I could see that within a year there will be an app [like this] that will work perfectly.” This is not a mark against the product. Rather, it provides reason for excitement—yet another item for the Wall of Firsts. And Hammacher Schlemmer will happily sell it for as long as customers want to buy it.

Somewhere, maybe in Milan or Tokyo or at Machu Picchu, my imaginary Hammacher family is on vacation and using the translator as they hop between museums and tours. My real family, meanwhile, pretty much only ever takes trips to Florida. That may save us $349.95, but where’s the fun in that?

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wreichard
17 days ago
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Great story about breaking the rules.
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Can Andy Byford Save the Subways? | The New Yorker

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In other cities, mayors tend to be heavily involved in mass transit, even hysterical about its deficiencies. Not in New York. Byford has not heard from de Blasio since his arrival, in January. “Bit weird. I should ring him up,” Byford said.

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skorgu
40 days ago
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God I loathe Cuomo.
satadru
40 days ago
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This Byford guy is my new hero.
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35 days ago
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Behind The Scenes of ‘Bao,’ The Short Running Before Incredibles 2

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This summer, before movie audiences sink their teeth into one of the biggest sequels of the year, Pixar’s Incredibles 2, they will be treated to a hilarious and poignant short film from one of the animation studio’s up-and-comers, 28-year-old Domee Shi.

Bao tells the story of a Chinese empty-nester mom who gets a surprise one day when one of her dumplings turns into an adorable baby boy. The story includes several amusing moments with the mom and her new sidekick, as well as some unexpectedly moving scenes that address the pain of seeing your children grow up and turn their attention outside the house. It’s quite an emotional journey for an eight-minute short about an anthropomorphized dumpling, and according to Shi — who wrote and directed Bao — the film has roots in a very real relationship, one that many audience members will surely relate to.

“The story was loosely inspired by my own life growing up as an only child to my two Chinese parents,” Shi tells Eater. “I found that they always treated me like this precious little dumpling, always making sure I was safe and never wandered too far. And when it was time for me to leave the nest, it was hard for them to let go. I wanted to kind of explore that in an allegorical, modern-day-fairytale way with this short.”

In terms of visual inspiration, Shi says that the mom is “kind of how I caricature myself when I’m doing silly drawings of myself, and I send them to my friends.” But in terms of attitude, the filmmaker thinks there’s “bits of my mom in there, but also bits of every strong Chinese woman in my life.”

Shi, who is the first woman to direct a Pixar short in the company’s 32-year history, started at the studio as an intern seven years ago, and was quickly hired as a storyboard artist working on Inside Out and The Good Dinosaur. “I have a very visual sense of storytelling, and I wrote this short by drawing it, basically,” she explains. Once the storyboard version of Bao got the thumbs-up from Pixar’s top brass, Becky Neiman-Cobb, a veteran of Ratatouille and Wall-E, was brought on to produce. Pixar legend Pete Docter, who has story credits on six of the studio’s top titles, also worked alongside Shi as an executive producer. Shi says that Docter was like a “mentor” to her on this project who “was great about just encouraging me to stick to my guns, and trust that I don’t have to like, spell everything out for the audience.”

Although Pixar’s shorts have developed a cult following over the years, the features are really the studio’s bread and butter, and so with the production of Bao, Shi and Neiman-Cobb had to work on the film whenever there were breaks between the main movies and talent was available. “We’re sort of like the indie wing of Pixar,” the producer remarks. “We have smaller budgets, and we’re scrappy, and we strategize our production to work within the windows between the big feature productions going on at the studio.” The overall production took about a year and a half, although Neiman-Cobb notes that it might’ve taken nine months — “how long it takes to make a baby” — if they had worked on it consecutively.

One of the challenges of making this short movie, according to the filmmakers, was bringing the art of dumpling-making into the Pixar universe. The more realistic the dumpling, the more surprising the moment would be when it comes to life as a baby. “Computers are great at making non-organic and symmetrical, hard-shiny surfaces look realistic,“ Neiman-Cobb notes. “It’s not as easy for computers to make things that look organic, and things where the shape changes. And so that was one of the major visual-effects hurdles for us, but it was also equally as important that we get those looking right, because that’s sort of the physical manifestation of mom’s love in this short.”

For authenticity’s sake, Shi decided to bring her mom, Ningsha Zhong, into the Pixar offices on two occasions to make some dumplings for her team. The director says that it was “really important for the animators and effects artists and everyone on the crew to kind of see every single step that it took for her to make those dumplings, so we could record her actions and replicate them on the big screen as accurately as possible.” Shi also remarks that in the opening shots of the film, when the mom starts rolling and stuffing the dough, audiences will be seeing “basically my mom’s hands.” Zhong was invited to the premiere of Bao, and she’s getting a “cultural consultant credit” on the short film.

Bao and Incredibles 2 will be released in theaters everywhere on June 15. For anyone who wants an early taste of the short film, here’s Domee’s family recipe for dumplings, drawn by the director herself:

Watch an Adorable Clip From ‘Bao,’ Pixar’s Upcoming Short Film [E]
Pixar’s New Short Film Is About Dumplings [E]

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How the Case for Voter Fraud Was Tested — and Utterly… — ProPublica

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In the end, the decision seemed inevitable. After a seven-day trial in Kansas City federal court in March, in which Kansas Secretary of State Kris Kobach needed to be tutored on basic trial procedure by the judge and was found in contempt for his “willful failure” to obey a ruling, even he knew his chances were slim. Kobach told The Kansas City Star at the time that he expected the judge would rule against him (though he expressed optimism in his chances on appeal).

Sure enough, yesterday federal Judge Julie Robinson overturned the law that Kobach was defending as lead counsel for the state, dealing him an unalloyed defeat. The statute, championed by Kobach and signed into law in 2013, required Kansans to present proof of citizenship in order to register to vote. The American Civil Liberties Union sued, contending that the law violated the National Voter Registration Act (AKA the “motor voter” law), which was designed to make it easy to register.

The trial had a significance that extends far beyond the Jayhawk state. One of the fundamental questions in the debate over alleged voter fraud — whether a substantial number of non-citizens are in fact registering to vote — was one of two issues to be determined in the Kansas proceedings. (The second was whether there was a less burdensome solution than what Kansas had adopted.) That made the trial a telling opportunity to remove the voter fraud claims from the charged, and largely proof-free, realms of political campaigns and cable news shoutfests and examine them under the exacting strictures of the rules of evidence.

That’s precisely what occurred and according to Robinson, an appointee of George W. Bush, the proof that voter fraud is widespread was utterly lacking. As the judge put it, “the court finds no credible evidence that a substantial number of noncitizens registered to vote” even under the previous law, which Kobach had claimed was weak.

For Kobach, the trial should’ve been a moment of glory. He’s been arguing for a decade that voter fraud is a national calamity. Much of his career has been built on this issue, along with his fervent opposition to illegal immigration. (His claim is that unlawful immigrants are precisely the ones voting illegally.) Kobach, who also co-chaired the Trump administration’s short-lived commission on voter fraud, is perhaps the individual most identified with the cause of sniffing out and eradicating phony voter registration. He’s got a gilded resume, with degrees from Harvard University, Yale Law School and the University of Oxford, and is seen as both the intellect behind the cause and its prime advocate. Kobach has written voter laws in other jurisdictions and defended them in court. If anybody ever had time to marshal facts and arguments before a trial, it was Kobach.

But things didn’t go well for him in the Kansas City courtroom, as Robinson’s opinion made clear. Kobach’s strongest evidence of non-citizen registration was anemic at best: Over a 20-year period, fewer than 40 non-citizens had attempted to register in one Kansas county that had 130,000 voters. Most of those 40 improper registrations were the result of mistakes or confusion rather than intentional attempts to mislead, and only five of the 40 managed to cast a vote.

One of Kobach’s own experts even rebutted arguments made by both Kobach and President Donald Trump. The expert testified that a handful of improper registrations could not be extrapolated to conclude that 2.8 million fraudulent votes — roughly, the gap between Hillary Clinton and Trump in the popular vote tally — had been cast in the 2016 presidential election. Testimony from a second key expert for Kobach also fizzled.

As the judge’s opinion noted, Kobach insisted the meager instances of cheating revealed at trial are just “the tip of the iceberg.” As she explained, “This trial was his opportunity to produce credible evidence of that iceberg, but he failed to do so.” Dismissing the testimony by Kobach’s witnesses as unpersuasive, Robinson drew what she called “the more obvious conclusion that there is no iceberg; only an icicle largely created by confusion and administrative error.”

By the time the trial was over, Kobach, a charismatic 52-year-old whose broad shoulders and imposing height make him resemble an aging quarterback, seemed to have shrunk inside his chair at the defense table.

But despite his defeat, Kobach’s causes — restricting immigration and tightening voting requirements — seem to be enjoying favorable tides elsewhere. Recent press accounts noted Kobach’s role in restoring a question about citizenship, abandoned since 1950, to U.S. Census forms for 2020. And the Supreme Court ruled on June 11 that the state of Ohio can purge voters from its rolls when they fail to vote even a single time and don’t return a mailing verifying their address, a provision that means more voters will need to re-register and prove their eligibility again.

For his own part, Kobach is now a candidate for governor of Kansas, running neck and neck with the incumbent in polls for the Republican primary on Aug. 7. It’s not clear whether the verdict will affect his chances — or whether it will lead him and others to quietly retreat from claims of voter fraud. But the judge’s opinion and expert interviews reveal that Kobach effectively put the concept of mass voter fraud to the test — and the evidence crumbled.


Perhaps it was an omen. Before Kobach could enter the courtroom inside the Robert J. Dole U.S. Courthouse each day, he had to pass through a hallway whose walls featured a celebratory display entitled “Americans by Choice: The Story of Immigration and Citizenship in Kansas.” Photographs of people who’d been sworn in as citizens in that very courthouse were superimposed on the translucent window shades.

Public interest in the trial was high. The seating area quickly filled to capacity on the first day of trial on the frigid morning of March 6. The jury box was opened to spectators; it wouldn’t be needed, as this was a bench trial. Those who couldn’t squeeze in were sent to a lower floor, where a live feed had been prepared in a spillover room.

From the moment the trial opened, Kobach and his co-counsels in the Kansas secretary of state’s office, Sue Becker and Garrett Roe, stumbled over the most basic trial procedures. Their mistakes antagonized the judge. “Evidence 101,” Robinson snapped, only minutes into the day, after Kobach’s team attempted to improperly introduce evidence. “I’m not going to do it.”

Matters didn’t improve for Kobach from there.

Throughout the trial, his team’s repeated mishaps and botched cross examinations cost hours of the court’s time. Robinson was repeatedly forced to step into the role of law professor, guiding Kobach, Becker and Roe through courtroom procedure. “Do you know how to do the next step, if that’s what you’re going to do?” the judge asked Becker at one point, as she helped her through the steps of impeaching a witness. “We’re going to follow the rules of evidence here.”  

Becker often seemed nervous. She took her bright red glasses off and on. At times she burst into nervous chuckles after a misstep. She laughed at witnesses, skirmished with the judge and even taunted the lawyers for the ACLU. “I can’t wait to ask my questions on Monday!” she shouted at the end of the first week, jabbing a finger in the direction of Dale Ho, the lead attorney for the plaintiffs. Ho rolled his eyes.

Roe was gentler — deferential, even. He often admitted he didn’t know what step came next, asking the judge for help. “I don’t — I don’t know if this one is objectionable. I hope it’s not,” he offered at one point, as he prepared to ask a question following a torrent of sustained objections. “I’ll let you know,” an attorney for the plaintiffs responded, to a wave of giggles in the courtroom. On the final day of trial, as Becker engaged in yet another dispute with the judge, Roe slapped a binder to his forehead and audibly whispered, “Stop talking. Stop talking.”

Kobach’s cross examinations were smoother and better organized, but he regularly attempted to introduce exhibits — for example, updated state statistics that he had failed to provide the ACLU in advance to vet — that Robinson ruled were inadmissible. As the trial wore on, she became increasingly irritated. She implored Kobach to “please read” the rules on which she based her rulings, saying his team had repeated these errors “ad nauseum.”

Kobach seemed unruffled. Instead of heeding her advice, he’d proffer the evidence for the record, a practice that allows the evidence to be preserved for appeal even if the trial judge refuses to admit it. Over the course of the trial, Kobach and his team would do this nearly a dozen times.

Eventually, Robinson got fed up. She asked Kobach to justify his use of proffers. Kobach, seemingly alarmed, grabbed a copy of the Federal Rules of Civil Procedure — to which he had attached a growing number of Post-it notes — and quickly flipped through it, trying to find the relevant rule.

The judge tried to help. “It’s Rule 26, of course, that’s been the basis for my rulings,” she told Kobach. “I think it would be helpful if you would just articulate under what provision of Rule 26 you think this is permissible.” Kobach seemed to play for time, asking clarifying questions rather than articulating a rationale. Finally, the judge offered mercy: a 15-minute break. Kobach’s team rushed from the courtroom.

It wasn’t enough to save him. In her opinion, Robinson described “a pattern and practice by Defendant [Kobach] of flaunting disclosure and discovery rules.” As she put it, “it is not clear to the Court whether Defendant repeatedly failed to meet his disclosure obligations intentionally or due to his unfamiliarity with the federal rules.” She ordered Kobach to attend the equivalent of after-school tutoring: six hours of extra legal education on the rules of civil procedure or the rules of evidence (and to present the court with a certificate of completion).

It’s always a bad idea for a lawyer to try the patience of a judge — and that’s doubly true during a bench trial, when the judge will decide not only the law, but also the facts. Kobach repeatedly annoyed Robinson with his procedural mistakes. But that was nothing next to what the judge viewed as Kobach’s intentional bad faith.

This view emerged in writing right after the trial — that’s when Robinson issued her ruling finding Kobach in contempt — but before the verdict. And the conduct that inspired the contempt finding had persisted over several years. Robinson concluded that Kobach had intentionally failed to follow a ruling she issued in 2016 that ordered him to restore the privileges of 17,000 suspended Kansas voters.

In her contempt ruling, the judge cited Kobach’s “history of noncompliance” with the order and characterized his explanations for not abiding by it as “nonsensical” and “disingenuous.” She wrote that she was “troubled” by Kobach’s “failure to take responsibility for violating this Court’s orders, and for failing to ensure compliance over an issue that he explicitly represented to the Court had been accomplished.” Robinson ordered Kobach to pay the ACLU’s legal fees for the contempt proceeding.

That contempt ruling was actually the second time Kobach was singled out for punishment in the case. Before the trial, a federal magistrate judge deputized to oversee the discovery portion of the suit fined him $1,000 for making “patently misleading representations” about a voting fraud document Kobach had prepared for Trump. Kobach paid the fine with a state credit card.


More than any procedural bumbling, the collapse of Kobach’s case traced back to the disintegration of a single witness.

The witness was Jesse Richman, a political scientist from Old Dominion University, who has written studies on voter fraud. For this trial, Richman was paid $5,000 by the taxpayers of Kansas to measure non-citizen registration in the state. Richman was the man who had to deliver the goods for Kobach.

With his gray-flecked beard and mustache, Richman looked the part of an academic, albeit one who seemed a bit too tall for his suit and who showed his discomfort in a series of awkward, sudden movements on the witness stand. At moments, Richman’s testimony turned combative, devolving into something resembling an episode of The Jerry Springer Show. By the time he left the stand, Richman had testified for more than five punishing hours. He’d bickered with the ACLU’s lawyer, raised his voice as he defended his studies and repeatedly sparred with the judge.

“Wait, wait, wait!” shouted Robinson at one point, silencing a verbal free-for-all that had erupted among Richman, the ACLU’s Ho, and Kobach, who were all speaking at the same time. “Especially you,” she said, turning her stare to Richman. “You are not here to be an advocate. You are not here to trash the plaintiff. And you are not here to argue with me.”

Richman had played a small but significant part in the 2016 presidential campaign. Trump and others had cited his work to claim that illegal votes had robbed Trump of the popular vote. At an October 2016 rally in Wisconsin, the candidate cited Richman’s work to bolster his predictions that the election would be rigged. “You don’t read about this, right?” Trump told the crowd, before reading from an op-ed Richman had written for The Washington Post: “‘We find that this participation was large enough to plausibly account for Democratic victories in various close elections.’ Okay? All right?”

Richman’s 2014 study of non-citizen registration used data from the Cooperative Congressional Election Study — an online survey of more than 32,000 people. Of those, fewer than 40 individuals indicated they were non-citizens registered to vote. Based on that sample, Richman concluded that up to 2.8 million illegal votes had been cast in 2008 by non-citizens. In fact, he put the illegal votes at somewhere between 38,000 and 2.8 million — a preposterously large range — and then Trump and others simply used the highest figure.

Academics pilloried Richman’s conclusions. Two hundred political scientists signed an open letter criticizing the study, saying it should “not be cited or used in any debate over fraudulent voting.” Harvard’s Stephen Ansolabehere, who administered the CCES, published his own peer-reviewed paper lambasting Richman’s work. Indeed, by the time Trump read Richman’s article onstage in 2016, The Washington Post had already appended a note to the op-ed linking to three rebuttals and a peer-reviewed study debunking the research.

None of that discouraged Kobach or Trump from repeating Richman’s conclusions. They then went a few steps further. They took the top end of the range for the 2008 election, assumed that it applied to the 2016 election, too, and further assumed that all of the fraudulent ballots had been cast for Clinton.

Some of those statements found their way into the courtroom, when Ho pressed play on a video shot by The Kansas City Star on Nov. 30, 2016. Kobach had met with Trump 10 days earlier and had brought with him a paper decrying non-citizen registration and voter fraud. Two days later, Trump tweeted that he would have won the popular vote if not for “millions of people who voted illegally.”

On the courtroom’s televisions, Kobach appeared, saying Trump’s tweet was “absolutely correct.” Without naming Richman, Kobach referred to his study: The number of non-citizens who said they’d voted in 2008 was far larger than the popular vote margin, Kobach said on the video. The same number likely voted again in 2016.

In the courtroom, Ho asked Richman if he believed his research supported such a claim. Richman stammered. He repeatedly looked at Kobach, seemingly searching for a way out. Ho persisted and finally, Richman gave his answer: “I do not believe my study provides strong support for that notion.”

To estimate the number of non-citizens voting in Kansas, Richman had used the same methodology he employed in his much-criticized 2014 study. Using samples as small as a single voter, he’d produced surveys with wildly different estimates of non-citizen registration in the state. The multiple iterations confused everyone in the courtroom.

“For the record, how many different data sources have you provided?” Robinson interjected in the middle of one Richman answer. “You provide a range of, like, zero to 18,000 or more.”

“I sense the frustration,” Richman responded, before offering a winding explanation of the multiple data sources and surveys he’d used to arrive at a half-dozen different estimates. Robinson cut him off. “Maybe we need to stop here,” she said.

“Your honor, let me finish answering your question,” he said.

“No, no. I’m done,” she responded, as he continued to protest. “No. Dr. Richman, I’m done.”

To refute Richman’s numbers, the ACLU called on Harvard’s Ansolabehere, whose data Richman had relied on in the past. Ansolabehere testified that Richman’s sample sizes were so small that it was just as possible that there were no non-citizens registered to vote in Kansas as 18,000. “There’s just a great deal of uncertainty with these estimates,” he said.

Ho asked if it would be accurate to say that Richman’s data “shows a rate of non-citizen registration in Kansas that is not statistically distinct from zero?”

“Correct.”

The judge was harsher than Ansolabehere in her description of Richman’s testimony. In her opinion, Robinson unloaded a fusillade of dismissive adjectives, calling Richman’s conclusions “confusing, inconsistent and methodologically flawed,” and adding that they were “credibly dismantled” by Ansolabehere. She labeled elements of Richman’s testimony “disingenuous” and “misleading,” and stated that she gave his research “no weight” in her decision.


One of the paradoxes of Kobach is that he has become a star in circles that focus on illegal immigration and voting fraud despite poor results in the courtroom. By ProPublica’s count, Kobach chalked up a 2–6 won-lost record in federal cases in which he was played a major role, and which reached a final disposition before the Kansas case.

Those results occurred when Kobach was an attorney for the legal arm of the Federation for American Immigration Reform from 2004 to 2011, when he became secretary of state in Kansas. In his FAIR role (in which he continued to moonlight till about 2014), Kobach traveled to places like Fremont, Nebraska, Hazleton, Pennsylvania, Farmers Branch, Texas, and Valley Park, Missouri, to help local governments write laws that attempted to hamper illegal immigration, and then defend them in court. Kobach won in Nebraska, but lost in Texas and Pennsylvania, and only a watered down version of the law remains in Missouri.

The best-known law that Kobach helped shape before joining the Kansas government in 2011 was Arizona’s “show me your papers” law. That statute allowed police to demand citizenship documents for any reason from anyone they thought might be in the country illegally. After it passed, the state paid Kobach $300 an hour to train law enforcement on how to legally arrest suspected illegal immigrants. The Supreme Court gutted key provisions of the law in 2012.

Kobach also struggled in two forays into political campaigning. In 2004, he lost a race for Congress. He also drew criticism for his stint as an informal adviser to Mitt Romney’s 2012 presidential campaign. Kobach was the man responsible for Romney’s much-maligned proposal that illegal immigrants “self-deport,” one reason Romney attracted little support among Latinos. Romney disavowed Kobach even before the campaign was over, telling media outlets that he was a “supporter,” not an adviser.

Trump’s election meant Kobach’s positions on immigration would be welcome in the White House. Kobach lobbied for, but didn’t receive, an appointment as Secretary of Homeland Security. He was, however, placed in charge of the voter fraud commission, a pet project of Trump’s. Facing a raft of lawsuits and bad publicity, the commission was disbanded little more than six months after it formally launched.

Back at home, Kobach expanded his power as secretary of state. Boasting of his experience as a law professor and scholar, Kobach convinced the state legislature to give him the authority to prosecute election crimes himself, a power wielded by no other secretary of state. In that role, he has obtained nine guilty pleas against individuals for election-related misdemeanors. Only one of those who pleaded guilty, as it happens, was a non-citizen.

He also persuaded Kansas’ attorney general to allow Kobach to represent the state in the trial of Kansas’ voting law. Kobach argued it was a bargain. As he told The Wichita Eagle at the time, “The advantage is the state gets an experienced appellate litigator who is a specialist in this field and in constitutional law for the cost the state is already paying, which is my salary.”


Kobach fared no better in the second main area of the Kansas City trial than he had in the first. This part explored whether there is a less burdensome way of identifying non-citizens than forcing everyone to show proof of citizenship upon registration. Judge Robinson would conclude that there were many alternatives that were less intrusive.

In his opening, Ho of the ACLU spotlighted a potentially less intrusive approach. Why not use the Department of Homeland Security’s Systematic Alien Verification for Entitlements System list, and compare the names on it to the Kansas voter rolls? That, Ho argued, could efficiently suss out illegal registrations.

Kobach told the judge that simply wasn’t feasible. The list, he explained, doesn’t contain all non-citizens in the country illegally — it contains only non-citizens legally present and those here illegally who register in some way with the federal government. Plus, he told Robinson, in order to really match the SAVE list against a voter roll, both datasets would have to contain alien registration numbers, the identifier given to non-citizens living in the U.S. “Those are things that a voter registration system doesn’t have,” he said. “So, the SAVE system does not work.”

But Kobach had made the opposite argument when he headed the voter fraud commission. There, he’d repeatedly advocated the use of the SAVE database. Appearing on Fox News in May 2017, shortly after the commission was established, Kobach said, “The Department of Homeland Security knows of the millions of aliens who are in the United States legally and that data that’s never been bounced against the state’s voter rolls to see whether these people are registered.” He said the federal databases “can be very valuable.”

A month later, as chief of the voting fraud commission, Kobach took steps to compare state information to the SAVE database. He sent a letter to all 50 secretaries of state requesting their voter rolls. Bipartisan outrage ensued. Democrats feared he would use the rolls to encourage states to purge legitimately registered voters. Republicans labelled the request federal overreach.

At trial, Kobach’s main expert on this point was Hans von Spakovsky, another member of the voter fraud commission. He, too, had been eager in commission meetings to match state voter rolls to the SAVE database.

But like Kobach, von Spakovsky took a different tack at trial. He testified that this database was unusable by elections offices. “In your experience and expertise as an election administrator and one who studies elections,” Kobach asked, “is [the alien registration number] a practical or even possible thing for a state to do in its voter registration database?” Von Spakovsky answered, “No, it is not.”

Von Spakovsky and Kobach have been friends for more than a decade. They worked together at the Department of Justice under George W. Bush. Kobach focused on immigration issues — helping create a database to register visitors to the U.S. from countries associated with terrorism — while von Spakovsky specialized in voting issues; he had opposed the renewal of the Voting Rights Act.

Von Spakovsky’s history as a local elections administrator in Fairfax County, Va., qualified him as an expert on voting fraud. Between 2010 and 2012, while serving as vice chairman of the county’s three-member electoral board, he’d examined the voter rolls and found what he said were 300 registered non-citizens. He’d pressed for action against them, but none came. Von Spakovsky later joined the Heritage Foundation, where he remains today, generating research that underpins the arguments of those who claim mass voter fraud.

Like Richman, von Spakovsky seemed nervous on the stand, albeit not combative. He wore wire-rimmed glasses and a severe, immovable expression. Immigration is a not-so-distant feature of his family history: His parents — Russian and German immigrants — met in a refugee camp in American-occupied Germany after World War II before moving to the U.S.

Von Spakovsky had the task of testifying about what was intended to be a key piece of evidence for Kobach’s case: a spreadsheet of 38 non-citizens who had registered to vote, or attempted to register, in a 20-year period in Sedgwick County, Kansas.

But the 38 non-citizens turned out to be something less than an electoral crime wave. For starters, some of the 38 had informed Sedgwick County that they were non-citizens. One woman had sent her registration postcard back to the county with an explanation that it was a “mistake” and that she was not a citizen. Another listed an alien registration number — which tellingly begins with an “A” — instead of a Social Security number on the voter registration form. The county registered her anyway.

When von Spakovsky took the stand, he had to contend with questions that suggested he had cherry-picked his data. (The judge would find he had.) In his expert report, von Spakovsky had referenced a 2005 report by the Government Accountability Office that polled federal courts to see how many non-citizens had been excused from jury duty for being non-citizens — a sign of fraud, because jurors are selected from voter rolls. The GAO report mentioned eight courts. Only one said it had a meaningful number of jury candidates who claimed to be non-citizens: “between 1 and 3 percent” had been dismissed on these grounds. This was the only court von Spakovsky mentioned in his expert report.

His report also cited a 2012 TV news segment from an NBC station in Fort Myers, Fla. Reporters claimed to have discovered more than 100 non-citizens on the local voter roll.

“Now, you know, Mr. von Spakovsky, don’t you, that after this NBC report there was a follow-up by the same NBC station that determined that at least 35 of those 100 individuals had documentation to prove they were, in fact, United States citizens. Correct?” Ho asked. “I am aware of that now, yes,” von Spakovsky replied.

That correction had been online since 2012 and Ho had asked von Spakovsky the same question almost two years before in a deposition before the trial. But von Spakovsky never corrected his expert report.

Under Ho’s questioning, von Spakovsky also acknowledged a false assertion he made in 2011. In a nationally syndicated column for McClatchy, von Spakovsky claimed a tight race in Missouri had been decided by the illegal votes of 50 Somali nationals. A month before the column was published, a Missouri state judge ruled that no such thing had happened.

On the stand, von Spakovsky claimed he had no knowledge of the ruling when he published the piece. He conceded that he never retracted the assertion.

Kobach, who watched the exchange without objection, had repeatedly made the same claim — even after the judge ruled it was false. In 2011, Kobach wrote a series of columns using the example as proof of the need for voter ID, publishing them in outlets ranging from the Topeka Capital-Journal to the Wall Street Journal and the Washington Post. In 2012, he made the claim in an article published in the Syracuse Law Review. In 2013, he wrote an op-ed for the Kansas City Star with the same example: “The election was stolen when Rizzo received about 50 votes illegally cast by citizens of Somalia.” None of those articles have ever been corrected.

Ultimately, Robinson would lacerate von Spakovsky’s testimony, much as she had Richman’s. Von Spakovsky’s statements, the judge wrote, were “premised on several misleading and unsupported examples” and included “false assertions.” As she put it, “His generalized opinions about the rates of noncitizen registration were likewise based on misleading evidence, and largely based on his preconceived beliefs about this issue, which has led to his aggressive public advocacy of stricter proof of citizenship laws.”


There was one other wobbly leg holding up the argument that voter fraud is rampant: the very meaning of the word “fraud.”

Kobach’s case, and the broader claim, rely on an extremely generous definition. Legal definitions of fraud require a person to knowingly be deceptive. But both Kobach and von Spakovsky characterized illegal ballots as “fraud” regardless of the intention of the voter.

Indeed, the nine convictions Kobach has obtained in Kansas are almost entirely made up of individuals who didn’t realize they were doing something wrong. For example, there were older voters who didn’t understand the restrictions and voted in multiple places they owned property. There was also a college student who’d forgotten she’d filled out an absentee ballot in her home state before voting months later in Kansas. (She voted for Trump both times.)

Late in the trial, the ACLU presented Lorraine Minnite, a professor at Rutgers who has written extensively about voter fraud, as a rebuttal witness. Her book, “The Myth of Voter Fraud,” concluded that almost all instances of illegal votes can be chalked up to misunderstandings and administrative error.

Kobach sent his co-counsel, Garrett Roe, to cross-examine her. “It’s your view that what matters is the voter’s knowledge that his or her action is unlawful?” Roe asked. “In a definition of fraud, yes,” said Minnite. Roe pressed her about this for several questions, seemingly surprised that she wouldn’t refer to all illegal voting as fraud.

Minnite stopped him. “The word ‘fraud’ has meaning, and that meaning is that there’s intent behind it. And that’s actually what Kansas laws are with respect to illegal voting,” she said. “You keep saying my definition” she said, putting finger quotes around “my.” “But, you know, it’s not like it’s a freak definition.”

Kobach had explored a similar line of inquiry with von Spakovsky, asking him if the list of 38 non-citizens he’d reviewed could be absolved of “fraud” because they may have lacked intent.

“No,” von Spakovsky replied, “I think any time a non-citizen registers, any time a non-citizen votes, they are — whether intentionally or by accident, I mean — they are defrauding legitimate citizens from a fair election.”

After Kobach concluded his questions, the judge began her own examination of von Spakovsky.

“I think it’s fair to say there’s a pretty good distinction in terms of how the two of you define fraud,” the judge said, explaining that Minnite focused on intent, while she understood von Spakovsky’s definition to include any time someone who wasn’t supposed to vote did so, regardless of reason. “Would that be a fair characterization?” she asked.

“Yes ma’am,” von Spakovsky replied.

The judge asked whether a greater number of legitimate voters would be barred from casting ballots under the law than fraudulent votes prevented. In that scenario, she asked, “Would that not also be defrauding the electoral process?” Von Spakovsky danced around the answer, asserting that one would need to answer that question in the context of the registration requirements, which he deemed reasonable.

The judge cut him off. “Well that doesn’t really answer my question,” she said, saying that she found it contradictory that he wanted to consider context when examining the burden of registration requirements, but not when examining the circumstances in which fraud was committed.

“When you’re talking about … non-citizen voting, you don’t want to consider that in context of whether that person made a mistake, whether a DMV person convinced them they should vote,” she said. Von Spakovsky allowed that not every improper voter should be prosecuted, but insisted that “each ballot they cast takes away the vote of and dilutes the vote of actual citizens who are voting. And that’s —”

The judge interrupted again. “So, the thousands of actual citizens that should be able to vote but who are not because of the system, because of this law, that’s not diluting the vote and that’s not impairing the integrity of the electoral process, I take it?” she said.

Von Spakovsky didn’t engage with the hypothetical. He simply didn’t believe it was happening. “I don’t believe that this requirement prevents individuals who are eligible to register and vote from doing so.” Later, on the stand, he’d tell Ho he couldn’t think of a single law in the country that he felt negatively impacted anyone’s ability to register or vote.

Robinson, in the end, strongly disagreed. As she wrote in her opinion, “the Court finds that the burden imposed on Kansans by this law outweighs the state’s interest in preventing noncitizen voter fraud, keeping accurate voter rolls, and maintaining confidence in elections. The burden is not just on a ‘few voters,’ but on tens of thousands of voters, many of whom were disenfranchised” by Kobach’s law. The law, she concluded, was a bigger problem than the one it set out to solve, acting as a “deterrent to registration and voting for substantially more eligible Kansans than it has prevented ineligible voters from registering to vote.”

Correction, June 19, 2018: An earlier version of this article incorrectly stated that Stephen Ansolabehere signed a letter criticizing Jesse Richman’s work. In fact, Ansolabehere wrote a peer-reviewed article criticizing Richman’s work. It also misstated the name of the federal courthouse in Kansas City, Kansas.

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economyaki
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[Orin Kerr] "Google Translate" and the Law of Consent Searches

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Here's an interesting question I've started to see in Fourth Amendment cases: If an officer asks for consent to search from a non-English speaker, using Google Translate to ask for consent in the person's own language, is the resulting consent valid if there are possible misunderstandings from the translation? And relatedly, does the good-faith exception apply based on the officer's good-faith reliance on the reliability of Google Translate?

This issue came up recently in United States v. Cruz-Zamora, decided by Judge Carlos Murguia of the federal district court in Kansas. The case involves consent to search a car during a traffic stop. The officer typed in "can I search the car" or "can I search your car" into Google translate, which came up with a Spanish translation. When put into Google Translate, "can I search the car" translates to "¿Puedo buscar el auto?" The officer then showed the translated text to the driver, who responded by saying "yeah, yeah go." The officer then searched the car and found a lot of drugs inside it.

The problem is that the English word "search" has several different meanings. It might mean "to look through," for example, or it might just mean "to look for." The officer was trying to ask for consent to search assuming the first meaning; he wanted to look through the car. But Google's translation picked the word "buscar," which means "to look for." As the court explains:

When put in reverse order into Google Translate, "¿Puedo buscar el auto?" translates to "Can I find the car." Gardner [an expert interpreter] testified that while "¿Puedo buscar el auto?" is a literally correct interpretation, it is not the question Wolting intended to ask defendant. Gardner noticed several other instances in the video where Google Translate provided a literal but nonsensical translation. For example, at one point, Wolting likely asked defendant about his driver's license and defendant responded "Do you have a driver for the license?" as if he was repeating the question as translated. And while defendant could guess the intent of the question, Gardner felt that because Google Translate sometimes provides literal but nonsensical translations, it is not a reliable tool for interpretations.

Both interpreters noted there were multiple times defendant responded that he did not understand Wolting's questions. According to Gardner, defendant claimed he did not understand the question on nine different occasions during the stop. And in regard to the specific question as to whether Wolting could search defendant's car, Garcia testified that "¿Puedo buscar el auto?" is not exactly how a Spanish speaker would ask to "search in your car." Defendant, as a native Spanish speaker with very limited English skills, would instead have to make an assumption about what the question actually is.

The court rules that under the circumstances of this case, the government did not meet its burden to show consent:

It is impossible to know how defendant translated "¿Puedo buscar el auto?" and whether he was affirmatively consenting to a search of his vehicle or responding to a perceived command. And while he did exit the patrol car and stand by the side of the road without objection while Wolting performed the search, defendant testified that he did not understand the question, and did not know he had a choice when Wolting told him to stand near the side of the road.

Unlike other cases where the defendants' actions implied that they understood the officers' questions, here it is not so clear. Yes, defendant did demonstrate some basic understanding of Wolting's English questions and commands; however, when reviewing the transcript and considering the imprecise translation, the court does not find the government has met its burden to show defendant's consent was "unequivocal and specific and freely and intelligently given."

The next question was whether the good faith exception to the exclusionary rule could apply based on good faith reliance on Google Translate. Another case had so held, and the governmenr relied on that case here:

The government cites a recent case from the Southern District of Texas in which an officer used Google Translate to look up how to ask for consent to search in Spanish and then asked the defendant "Puedo buscar?" while pointing to his eyes and then to defendant's vehicle. United States v. Salas Antuna, No. 6:16–86, 2017 WL 2255565 at *1 (S.D. Tex, May 23, 2017). In denying defendant's motion to suppress—in which defendant argued his consent was invalid because of the language barrier—the court acknowledged that "Puedo buscar" is not a legally precise translation for "May I search," but that the officer reasonably relied on the Google Translate translation and that the good-faith exception applied. Id. at *5.

The court rules that the good faith exception based on the facts of this case, however:

[T]he court finds that the good-faith exception does not apply as it is not reasonable for an officer to use and rely on Google Translate to obtain consent to a warrantless search, especially when an officer has other options for more reliable translations. The government has not met its burden to show defendant's consent was "unequivocal and specific and freely and intelligently given," because defendant claims he did not understand the question, the transcript from Wolting's in-car camera supports defendant's claim that he did not understand many of his questions, and the Google Translate translation allegedly used by Wolting was not a precise translation of "Can I search the car?" Even though defendant answered "Ah, okay. Yeah…yeah. Go. Yes," it is not clear from the evidence what question was asked and what defendant was agreeing to, and the court will not interpret defendant's compliance with Wolting's instructions to stand by the side of the road during the search as implied consent, considering the totality of the circumstances. The court finds that application of the exclusionary rule is appropriate in this case, and therefore grants defendant's motion to suppress.

Interestiing case. But let me step back a bit.

Off the top of my head, I would be inclined to think that the good faith exception shouldn't appply to reliance on Google Translate at all. It's true that in Herring v. United States, the Court applied the good faith exception when the police relied on an incorrect database entry. The idea was that it wasn't the officer's fault that the database erroneously said a warrant was wanted for Herring's arrest, so you can't fault the officer so much (enough to apply the excluionary rule) to suppress the evidence following from the arrest.

But I see a big difference between relying on a police database of open arrest warrants and relying on Google Translate for a consent search. The police create databases of open arrest warrants to know who they should arreston warrants. The police rely on those databases for that purpose, and they're usually pretty accurate for it.

In contrast, it's common knowledge that Google Translate gets you in the rough ballpark of a literal translation but no better. It's a neat service if you have no alternative and want to get a rough sense of what someone is saying. But no one would think that Google Translate is accurate enough to generate an error-free translation or be anything like the equivalent of an expert interpreter. If the government wants to use such an inaccurate tool to get beyond a language barrier, they can try that. But I don't think the good-faith exception should apply when an entirely predicatble mistranslation occurs.

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economyaki
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