Afternoon Roundup: Utah Proposes All College Women Must Have Maternity Care Coverage

Amie Newman

"#dearjohn" and Republican hypocrisy over rape and abortion; the rights of Egyptian women and girls in a post-revolution Egypt; and Utah's unbelievable proposed bill for college-age women in the state.

“#dearjohn” and Republican hypocrisy over rape and abortion; the rights of Egyptian women and girls in a post-revolution Egypt; and Utah’s unbelievable proposed bill for college-age women in the state.

  • Have you “#dearjohn”-ed yet? It’s a twitter campaign started by Sady Doyle, the amazing young woman behind the Julian Assange/sexual assault/Michael Moore social media campaign, #MooreandMe. This time, the campaign aims to raise awareness about the insidious and misogynistic nature of Rep. Chris Smith’s anti-legal abortion bill  – which also seeks to re-define rape and bar Medicaid insurance coverage of abortions for women and girls who are pregnant as the result of rape (and don’t want to carry the pregnancy to term). The #DearJohn hashtag refers to our lovely Speaker of the House John Boehner who says he’s making it a “priority” to pass Smith’s cruel legislation. Add it to your call to your own representative to vote against the “No Taxpayer Funding for Abortion Act”!
  • The Washington Independent reports that freshman U.S. Rep. Renee Ellmers, who opposed the pre-existing condition provision in the new health reform law, will chair the Subcommittee on Health and Technology charged with…implementation of the new federal health reform law!
  • Hmmm. Let’s say you’re a legislator in Utah. And you’re vehemently against the new heatlh reform law because it forces Americans to purchase health care coverage. And you’re faced with needing to cut your state’s Medicaid budget. You see that a percentage of Medicaid funds go to cover birth for low income women (of course). You think: a) I should check with the public health experts regarding how best to reduce the number of Medicaid funded births? (ie, Guttmacher Institute – which is done extensive research and analysis over many years which shows that providing contraception and comprehensive sex is is a sure fire way to reduce unintended pregnancy!) or b) I ‘ll force all college-aged women in our state to purchase maternity care coverage because some of these young women use Medicaid to cover childbirth if they get pregnant as students (and they may be low income and they may not be – we don’t know). If you chose “b” you’re right! I think all Republican bills related to women’s health should just be titled “HYPOCRISY.”

Roundups Politics

Campaign Week in Review: Clinton Criticizes Trump’s Child-Care Proposal in Economic Speech

Ally Boguhn

Hillary Clinton may be wooing Republicans alienated by Trump, but she's also laying out economic policies that could shore up her progressive base. Meanwhile, Trump's comments about "Second Amendment people" stopping Hillary Clinton judicial appointments were roundly condemned.

Hillary Clinton may be courting Republicans, but that didn’t stop her from embracing progressive economic policies and criticizing her opponent’s child-care plan this week, and Donald Trump suggested there could be a way for “Second Amendment people” to deal with his rival’s judicial appointments should she be elected.

Clinton Blasts Trump’s Child-Care Proposal, Embraces Progressive Policies in Economic Speech

Democratic nominee Hillary Clinton took aim at Republican nominee Donald Trump’s recently announced proposal to make the average cost of child care fully deductible during her own economic address Thursday in Michigan.

“We know that women are now the sole or primary breadwinner in a growing number of families. We know more Americans are cobbling together part-time work, or striking out on their own. So we have to make it easier to be good workers, good parents, and good caregivers, all at the same time,” Clinton said before pivoting to address her opponent’s plan. “That’s why I’ve set out a bold vision to make quality, affordable child care available to all Americans and limit costs to 10 percent of family income.”

“Previously, [Trump] dismissed concerns about child care,” Clinton told the crowd. “He said it was, quote, ‘not an expensive thing’ because you just need some blocks and some swings.”

“He would give wealthy families 30 or 40 cents on the dollar for their nannies, and little or nothing for millions of hard-working families trying to afford child care so they can get to work and keep the job,” she continued.

Trump’s child-care proposal has been criticized by economic and family policy experts who say his proposed deductions for the “average” cost of child care would do little to help low- and middle-wage earners and would instead advantage the wealthy. Though the details of his plan are slim, the Republican nominee’s campaign has claimed it would also allow “parents to exclude child care expenses from half of their payroll taxes.” Experts, however, told CNN doing so would be difficult to administer.

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Clinton provided a different way to cut family child-care costs: “I think instead we should expand the Child Tax Credit to provide real relief to tens of millions of working families struggling with the cost of raising children,” Clinton said in Michigan on Thursday. “The same families [Donald Trump’s] plan ignores.”

Clinton also voiced her support for several progressive policy positions in her speech, despite a recent push to feature notable Republicans who now support her in her campaign.

“In her first major economic address since her campaign began actively courting the Republicans turned off by Donald Trump, Clinton made no major pivot to the ideological center,” noted NBC News in a Thursday report on the speech. “Instead, Clinton reiterated several of the policy positions she adopted during her primary fight against Bernie Sanders, even while making a direct appeal to Independent voters and Republicans.”

Those positions included raising the minimum wage, opposing the Trans-Pacific Partnership trade deal, advocating for equal pay and paid family leave, and supporting a public health insurance option.

“Today’s speech shows that getting some Republicans to say Donald Trump is unfit to be president is not mutually exclusive with Clinton running on bold progressives ideas like debt-free college, expanding Social Security benefits and Wall Street reform,” said Adam Green, the co-founder of the Progressive Change Campaign Committee, in a statement to NBC.

Donald Trump: Could “Second Amendment People” Stop Clinton Supreme Court Picks?

Donald Trump suggested that those who support gun ownership rights may be able to stop Democratic nominee Hillary Clinton from appointing judges to the Supreme Court should she be elected.

“Hillary wants to abolish, essentially abolish the Second Amendment,” Trump told a crowd of supporters during a Tuesday rally in Wilmington, North Carolina. “By the way … if she gets to pick her judges, nothing you can do, folks. Although, the Second Amendment people—maybe there is. I don’t know.” 

Trump campaign spokesperson Jason Miller later criticized the “dishonest media” for reporting on Trump’s comments and glossed over any criticism of the candidate in a statement posted to the campaign’s website Tuesday. “It’s called the power of unification―Second Amendment people have amazing spirit and are tremendously unified, which gives them great political power,” said Miller. “And this year, they will be voting in record numbers, and it won’t be for Hillary Clinton, it will be for Donald Trump.”

“This is simple—what Trump is saying is dangerous,” said Robby Mook, Clinton’s campaign manager, in a statement responding to the Republican nominee’s suggestion. “A person seeking to be the President of the United States should not suggest violence in any way.”

Gun safety advocates and liberal groups swiftly denounced Trump’s comments as violent and inappropriate for a presidential candidate.

“This is just the latest example of Trump inciting violence at his rallies—and one that belies his fundamental misunderstanding of the Second Amendment, which should be an affront to the vast majority of responsible gun owners in America,” Erika Soto Lamb, chief communications officer of Everytown for Gun Safety, said in a Tuesday statement. “He’s unfit to be president.”

Michael Keegan, president of People for the American Way, also said in a Tuesday press release, “There has been no shortage of inexcusable rhetoric from Trump, but suggesting gun violence is truly abhorrent. There is no place in our public discourse for this kind of statement, especially from someone seeking the nation’s highest office.”

Trump’s comments engaged in something called “stochastic terrorism,” according to David Cohen, an associate professor at the Drexel University Thomas R. Kline School of Law, in a Tuesday article for Rolling Stone.

“Stochastic terrorism, as described by a blogger who summarized the concept several years back, means using language and other forms of communication ‘to incite random actors to carry out violent or terrorist acts that are statistically predictable but individually unpredictable,’” said Cohen. “Stated differently: Trump puts out the dog whistle knowing that some dog will hear it, even though he doesn’t know which dog.”

“Those of us who work against anti-abortion violence unfortunately know all about this,” Cohen continued, pointing to an article from Valerie Tarico in which she describes a similar pattern of violent rhetoric leading up to the murders that took place at a Colorado Springs Planned Parenthood.

What Else We’re Reading

Though Trump has previously claimed he offered on-site child-care services for his employees, there is no record of such a program, the Associated Press reports.

History News Network attempted to track down how many historians support Trump. They only found five (besides Newt Gingrich).

In an article questioning whether Trump will energize the Latino voting bloc, Sergio Bustos and Nicholas Riccardi reported for the Associated Press: “Many Hispanic families have an immense personal stake in what happens on Election Day, but despite population numbers that should mean political power, Hispanics often can’t vote, aren’t registered to vote, or simply choose to sit out.”

A pair of physicians made the case for why Gov. Mike Pence “is radically anti-public health,” citing the Republican vice presidential candidate’s “policies on tobacco, women’s health and LGBTQ rights” in a blog for the Huffington Post.

Ivanka Trump has tried to act as a champion for woman-friendly workplace policies, but “the company that designs her clothing line, including the $157 sheath she wore during her [Republican National Convention] speech, does not offer workers a single day of paid maternity leave,” reported the Washington Post.

The chair of the American Nazi Party claimed a Trump presidency would be “a real opportunity” for white nationalists.

NPR analyzed how Clinton and Trump might take on the issue of campus sexual assault.

Rewire’s own editor in chief, Jodi Jacobson, explained in a Thursday commentary how Trump’s comments are just the latest example of Republicans’ use of violent rhetoric and intimidation in order to gain power.

Analysis Law and Policy

Do Counselors-in-Training Have the Right to Discriminate Against LGBTQ People?

Greg Lipper

Doctors can't treat their patients with leeches; counselors can't impose their beliefs on patients or harm them using discredited methods. Whatever their views, medical professionals have to treat their clients competently.

Whether they’re bakers, florists, or government clerks, those claiming the right to discriminate against LGBTQ people have repeatedly sought to transform professional services into constitutionally protected religious speech. They have grabbed headlines for refusing, for example, to grant marriage licenses to same-sex couples or to make cakes for same-sex couples’ weddings-all in the name of “religious freedom.”

A bit more quietly, however, a handful of counseling students at public universities have challenged their schools’ nondiscrimination and treatment requirements governing clinical placements. In some cases, they have sought a constitutional right to withhold treatment from LGBTQ clients; in others, they have argued for the right to directly impose their religious and anti-gay views on their clients.

There has been some state legislative maneuvering on this front: Tennessee, for instance, recently enacted a thinly veiled anti-LGBTQ measure that would allow counselors to deny service on account of their “sincerely held principles.” But when it comes to the federal Constitution, providing medical treatment—whether bypass surgery, root canal, or mental-health counseling—isn’t advocacy (religious or otherwise) protected by the First Amendment. Counselors are medical professionals; they are hired to help their clients, no matter their race, religion, or sexual orientation, and no matter the counselors’ beliefs. The government, moreover, may lawfully prevent counselors from harming their clients, and universities in particular have an interest, recognized by the U.S. Supreme Court, in preventing discrimination in school activities and in training their students to work with diverse populations.

The plaintiffs in these cases have nonetheless argued that their schools are unfairly and unconstitutionally targeting them for their religious beliefs. But these students are not being targeted, any more than are business owners who must comply with civil rights laws. Instead, their universities, informed by the rules of the American Counseling Association (ACA)—the leading organization of American professional counselors—merely ask that all students learn to treat diverse populations and to do so in accordance with the standard of care. These plaintiffs, as a result, have yet to win a constitutional right to discriminate against or impose anti-LGBTQ views on actual or prospective clients. But cases persist, and the possibility of conflicting court decisions looms.

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Keeton v. Anderson-Wiley

The first major challenge to university counseling requirements came from Jennifer Keeton, who hoped to receive a master’s degree in school counseling from Augusta State University. As detailed in the 2011 11th Circuit Court of Appeals decision considering her case, Keeton entered her professional training believing that (1) “sexual behavior is the result of personal choice for which individuals are accountable, not inevitable deterministic forces”; (2) “gender is fixed and binary (i.e., male or female), not a social construct or personal choice subject to individual change”; and “homosexuality is a ‘lifestyle,’ not a ‘state of being.'”

It wasn’t those views alone, however, that sunk her educational plans. The problem, rather, was that Keeton wanted to impose her views on her patients. Keeton had told both her classmates and professors about her clinical approach at a university-run clinic, and it wasn’t pretty:

  • She would try to change the sexual orientation of gay clients;
  • If she were counseling a sophomore student in crisis questioning his sexual orientation, she would respond by telling the student that it was not OK to be gay.
  • If a client disclosed that he was gay, she would tell him that his behavior was wrong and try to change it; if she were unsuccessful, she would refer the client to someone who practices “conversion therapy.”

Unsurprisingly, Keeton also told school officials that it would be difficult for her to work with LGBTQ clients.

Keeton’s approach to counseling not only would have flouted the university’s curricular guidelines, but also would have violated the ACA’s Code of Ethics.

Her conduct would have harmed her patients as well. As a school counselor, Keeton would inevitably have to counsel LGBTQ clients: 57 percent of LGBTQ students have sought help from a school professional and 42 percent have sought help from a school counselor. Suicide is the leading cause of death for LGBTQ adolescents; that’s twice or three times the suicide rate afflicting their heterosexual counterparts. And Keeton’s preferred approach to counseling LGBTQ students would harm them: LGBTQ students rejected by trusted authority figures are even more likely to attempt suicide, and anti-gay “conversion therapy” at best doesn’t work and at worst harms patients too.

Seeking to protect the university’s clinical patients and train her to be a licensed mental health professional, university officials asked Keeton to complete a remediation plan before she counseled students in her required clinical practicum. She refused; the university expelled her. In response, the Christian legal group Alliance Defending Freedom sued on her behalf, claiming that the university violated her First Amendment rights to freedom of speech and the free exercise of religion.

The courts disagreed. The trial court ruled against Keeton, and a panel of the U.S. Court of Appeals for the 11th Circuit unanimously upheld the trial court’s ruling. The 11th Circuit explained that Keeton was expelled not because of her religious beliefs, but rather because of her “own statements that she intended to impose her personal religious beliefs on clients and refer clients to conversion therapy, and her own admissions that it would be difficult for her to work with the GLBTQ population and separate her own views from those of the client.” It was Keeton, not the university, who could not separate her personal beliefs from the professional counseling that she provided: “[F]ar from compelling Keeton to profess a belief or change her own beliefs about the morality of homosexuality, [the university] instructs her not to express her personal beliefs regarding the client’s moral values.”

Keeton, in other words, crossed the line between beliefs and conduct. She may believe whatever she likes, but she may not ignore academic and professional requirements designed to protect her clients—especially when serving clients at a university-run clinic.

As the court explained, the First Amendment would not prohibit a medical school from requiring students to perform blood transfusions in their clinical placements, nor would it prohibit a law school from requiring extra ethics training for a student who “expressed an intent to indiscriminately disclose her client’s secrets or violate another of the state bar’s rules.” Doctors can’t treat their patients with leeches; counselors can’t impose their beliefs on patients or harm them using discredited methods. Whatever their views, medical professionals have to treat their clients competently.

Ward v. Polite

The Alliance Defending Freedom’s follow-up case, Ward v. Polite, sought to give counseling students the right to withhold service from LGBTQ patients and also to practice anti-gay “conversion therapy” on those patients. The case’s facts were a bit murkier, and this led the appeals court to send it to trial; as a result, the student ultimately extracted only a modest settlement from the university. But as in Keeton’s case, the court rejected in a 2012 decision the attempt to give counseling students the right to impose their religious views on their clients.

Julea Ward studied counseling at Eastern Michigan University; like Keeton, she was training to be a school counselor. When she reviewed the file for her third client in the required clinical practicum, she realized that he was seeking counseling about a romantic relationship with someone of the same sex. As the Court of Appeals recounted, Ward did not want to counsel the client about this topic, and asked her faculty supervisor “(1) whether she should meet with the client and refer him [to a different counselor] only if it became necessary—only if the counseling session required Ward to affirm the client’s same-sex relationship—or (2) whether the school should reassign the client from the outset.” Although her supervisor reassigned the client, it was the first time in 20 years that one of her students had made such a request. So Ward’s supervisor scheduled a meeting with her.

Then things went off the rails. Ward, explained the court, “reiterated her religious objection to affirming same-sex relationships.” She told university officials that while she had “no problem counseling gay and lesbian clients,” she would counsel them only if “the university did not require her to affirm their sexual orientation.” She also refused to counsel “heterosexual clients about extra-marital sex and adultery in a values-affirming way.” As for the professional rules governing counselors, Ward said, “who’s the [American Counseling Association] to tell me what to do. I answer to a higher power and I’m not selling out God.”

All this led the university to expel Ward, and she sued. She claimed that the university violated her free speech and free exercise rights, and that she had a constitutional right to withhold affirming therapy relating to any same-sex relationships or different-sex relationships outside of marriage. Like Keeton, Ward also argued that the First Amendment prohibited the university from requiring “gay-affirmative therapy” while prohibiting “reparative therapy.” After factual discovery, the trial court dismissed her case.

On appeal before the U.S. Court of Appeals for the Sixth Circuit, Ward eked out a narrow and temporary win: The court held that the case should go to a jury. Because the university did not have a written policy prohibiting referrals, and based on a few troubling faculty statements during Ward’s review, the court ruled that a reasonable jury could potentially find that the university invoked a no-referrals policy “as a pretext for punishing Ward’s religious views and speech.” At the same time, the court recognized that a jury could view the facts less favorably to Ward and rule for the university.

And although the decision appeared to sympathize with Ward’s desire to withhold service from certain types of clients, the court flatly rejected Ward’s sweeping arguments that she had the right to stray from the school curriculum, refuse to counsel LGBTQ clients, or practice anti-gay “conversion therapy.” For one, it said, “Curriculum choices are a form of school speech, giving schools considerable flexibility in designing courses and policies and in enforcing them so long as they amount to reasonable means of furthering legitimate educational ends.” Thus, the problem was “not the adoption of this anti-discrimination policy, the existence of the practicum class or even the values-affirming message the school wants students to understand and practice.” On the contrary, the court emphasized “the [legal] latitude educational institutions—at any level—must have to further legitimate curricular objectives.”

Indeed, the university had good reason to require counseling students—especially those studying to be school counselors—to treat diverse populations. A school counselor who refuses to counsel anyone with regard to nonmarital, nonheterosexual relationships will struggle to find clients: Nearly four in five Americans have had sex by age 21; more than half have done so by the time they turn 18, while only 6 percent of women and 2 percent of men are married by that age.

In any event, withholding service from entire classes of people violates professional ethical rules even for nonschool counselors. Although the ACA permits client referrals in certain circumstances, the agency’s brief in Ward’s case emphasized that counselors may not refuse to treat entire groups. Ward, in sum, “violated the ACA Code of Ethics by refusing to counsel clients who may wish to discuss homosexual relationships, as well as others who fail to comport with her religious teachings, e.g., persons who engage in ‘fornication.'”

But Ward’s approach would have been unethical even if, in theory, she were permitted to withhold service from each and every client seeking counseling related to nonmarital sex (or even marital sex by same-sex couples). Because in many cases, the need for referral would arise well into the counseling relationship. And as the trial court explained, “a client may seek counseling for depression, or issues with their parents, and end up discussing a homosexual relationship.” No matter what the reason, mid-counseling referrals harm clients, and such referrals are even more harmful if they happen because the counselor disapproves of the client.

Fortunately, Ward did not win the sweeping right to harm her clients or otherwise upend professional counseling standards. Rather, the court explained that “the even-handed enforcement of a neutral policy”—such as the ACA’s ethical rules—”is likely to steer clear of the First Amendment’s free-speech and free-exercise protections.” (Full disclosure: I worked on an amicus brief in support of the university when at Americans United.)

Ward’s lawyers pretended that she won the case, but she ended up settling it for relatively little. She received only $75,000; and although the expulsion was removed from her record, she was not reinstated. Without a graduate counseling degree, she cannot become a licensed counselor.

Cash v. Hofherr

The latest anti-gay counseling salvo comes from Andrew Cash, whose April 2016 lawsuit against Missouri State University attempts to rely on yet murkier facts and could wind up, on appeal, in front of the more conservative U.S. Court of Appeals for the Eighth Circuit. In addition to his range of constitutional claims (freedom of speech, free exercise of religion, equal protection of law), he has added a claim under the Missouri Religious Freedom Restoration Act.

The complaint describes Cash as “a Christian with sincerely-held beliefs”—as opposed to insincere ones, apparently—”on issues of morality.” Cash started his graduate counseling program at Missouri State University in September 2007. The program requires a clinical internship, which includes 240 hours of in-person client contact. Cash decided to do his clinical internship at Springfield Marriage and Family Institute, which appeared on the counseling department’s list of approved sites. Far from holding anti-Christian bias, Cash’s instructor agreed that his proposed class presentation on “Christian counseling and its unique approach and value to the Counseling profession” was an “excellent” idea.

But the presentation itself revealed that Cash intended to discriminate against LGBTQ patients. In response to a question during the presentation, the head of the Marriage and Family Institute stated that “he would counsel gay persons as individuals, but not as couples, because of his religious beliefs,” and that he would “refer the couple for counseling to other counselors he knew who did not share his religious views.” Because discrimination on the basis of sexual orientation violates ACA guidelines, the university determined that Cash should not continue counseling at the Marriage and Family Institute and that it would be removed from the approved list of placements. Cash suggested, however, that he should be able to withhold treatment from same-sex couples.

All this took place in 2011. The complaint (both the original and amended versions) evades precisely what happened between 2012 and 2014, when Cash was finally expelled. You get the sense that Cash’s lawyers at the Thomas More Society are trying to yadda-yadda-yadda the most important facts of the case.

In any event, the complaint does acknowledge that when Cash applied for a new internship, he both ignored the university’s instructions that the previous hours were not supposed to count toward his requirement, and appeared to be “still very much defend[ing] his previous internship stating that there was nothing wrong with it”—thus suggesting that he would continue to refuse to counsel same-sex couples. He continued to defend his position in later meetings with school officials; by November 2014, the university removed him from the program.

Yet in challenging this expulsion, Cash’s complaint says that he was merely “expressing his Christian worldview regarding a hypothetical situation concerning whether he would provide counseling services to a gay/homosexual couple.”

That’s more than just a worldview, though. It also reflects his intent to discriminate against a class of people—in a manner that violates his program’s requirements and the ACA guidelines. Whether hypothetically or otherwise, Cash stated and reiterated that he would withhold treatment from same-sex couples. A law student who stated, as part of his clinic, that he would refuse to represent Christian clients would be announcing his intent to violate the rules of professional responsibility, and the law school could and would remove him from the school’s legal clinic. And they could and would do so even if a Christian client had yet to walk in the door.

But maybe this was just a big misunderstanding, and Cash would, in practice, be willing and able to counsel same-sex couples? Not so, said Cash’s lawyer from the Thomas More Society, speaking about the case to Christian news outlet WORLD: “I think Christians have to go on the offensive, or it’s going to be a situation like Sodom and Gomorrah in the Bible, where you aren’t safe to have a guest in your home, with the demands of the gay mob.” Yikes.

Although Cash seems to want a maximalist decision allowing counselors and counseling students to withhold service from LGBTQ couples, it remains to be seen how the case will turn out. The complaint appears to elide two years’ worth of key facts in order to present Cash’s claims as sympathetically as possible; even if the trial court were to rule in favor of the university after more factual development, Cash would have the opportunity to appeal to the U.S. Court of Appeals for the Eighth Circuit, one of the country’s most conservative federal appeals courts.

More generally, we’re still early in the legal battles over attempts to use religious freedom rights as grounds to discriminate; only a few courts across the country have weighed in. So no matter how extreme Cash or his lawyers may seem, it’s too early to count them out.

* * *

The cases brought by Keeton, Ward, and Cash not only attempt to undermine anti-discrimination policies. They also seek to change the nature of the counselor-client relationship. Current norms provide that a counselor is a professional who provides a service to a client. But the plaintiffs in these cases seem to think that counseling a patient is no different than lecturing a passerby in the town square, in that counseling a patient necessarily involves expressing the counselor’s personal and religious beliefs. Courts have thus far rejected these attempts to redefine the counselor-patient relationship, just as they have turned away attempts to challenge bans on “reparative therapy.”

The principles underlying the courts’ decisions protect more than just LGBTQ clients. As the 11th Circuit explained in Keeton, the university trains students to “be competent to work with all populations, and that all students not impose their personal religious values on their clients, whether, for instance, they believe that persons ought to be Christians rather than Muslims, Jews or atheists, or that homosexuality is moral or immoral.” Licensed professionals are supposed to help their clients, not treat them as prospective converts.

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