Wednesday, April 30, 2014
The title of this post comes from Rick Hasen's commentary today for Reuters, which begins:
When it comes to the fight about voter fraud and voter suppression, how do you prove a negative
One key question in the battle over the legality of voter identification laws is whether such laws are necessary to prevent voter fraud and whether they suppress a lot of votes from eligible voters.
Though the answer to the second question remains in considerable dispute, after Tuesday’sfederal court decision striking down Wisconsin’s voter ID law, it is time for voter ID supporters to throw in the towel and admit state voter ID laws don’t prevent the kind of fraud they are supposedly targeted for.
Federal Judge Lynn Adelman looked at the evidence from Wisconsin and reached a conclusion unsurprising to those of us who study how elections are run.
“Virtually no voter impersonation occurs in Wisconsin,” Adelman wrote, “and it is exceedingly unlikely that voter impersonation will become a problem in Wisconsin in the foreseeable future.”Wisconsin is not alone in lacking such evidence. When the United States Supreme Courtconsidered the constitutionality of Indiana’s voter ID law in 2008, the state conceded there was no evidence, ever, of impersonation fraud in the entire state.
This is not surprising. Voter impersonation fraud is an exceedingly dumb way to try to steal an election. Someone would have to send people into polling places claiming to be others — either dead voters who have not been removed from the rolls, or people who have not yet shown up to vote, or fictitious people pre-registered and getting by any identification requirements when registering. Then the fraudster would have to hope that these imposters vote the way they were paid to. The fraudster would have to do this in large enough numbers to affect the outcome of an election, while avoiding detection of this conspiracy.
Professor Hasen runs the incredibly helpful Election Law Blog.
(h/t How Appealing)
"While money is used to finance speech, money is not speech. Speech is only one of the activities that are financed by campaign contributions and expenditures. Those financial activities should not receive precisely the same constitutional protections as speech itself," Stevens said. "After all, campaign funds were used to finance the Watergate burglary, actions that clearly were not protected by the First Amendment."
Tuesday, April 29, 2014
This essay reviews the Obama Administration’s civil rights record during its first Administration, with a particular focus on the Civil Rights Division of the Department of Justice and the Equal Employment Opportunity Commission (“EEOC”). The review finds that although the Obama Administration has generally been supportive of progressive causes, particularly in the Supreme Court and among issues relating to gay men and lesbians, its enforcement activities have generally been quite limited. On a quantitative basis, the Obama Administration’s civil rights enforcement typically fall at the same or below levels of the prior Bush Administration, and with a few exceptions (mortgage discrimination and voting) the Administration has brought very few major cases. One interesting development is that the EEOC has become a far more aggressive enforcement agency than the Justice Department’s Civil Rights Division, as the EEOC has pursued a number of important and innovative issues that would move the law forward. At the same time, the EEOC’s actual number of cases filed has dropped significantly for the EEOC, as it is now bringing fewer claims than the agency did under the Bush Administration. Finally, the essay concludes that, while civil rights has not been a priority, the path it has taken follows the principles of the Democratic Party.
Friday, April 25, 2014
"Republican Governors Association and The South Carolina GOP Launch Campaign Demonizing Candidate For His Work As A Criminal Defense Lawyer"
Yesterday the FCC introduced new rules governing Internet service that "may end the Internet as we know it," which HuffPost's Gerry Smith helpfully explains in terms I can understand:
First off, the web could get more expensive. The impact on the average Internet user will likely not be felt right away. But over time, websites would probably pass on to consumers the costs of paying for high-speed access, according to Harold Feld, a senior vice president at the consumer group Public Knowledge.
In addition, it could become difficult to view certain websites owned by companies that can't afford to pay for access to an Internet fast lane, Feld said.
On top of Internet users potentially paying more, they would also be more confused, Feld said. Under the proposed rules, people would need to make sense of a fragmented Internet landscape where the time it takes to load an online video would depend on whether that website paid extra to their Internet provider. Consumers may start choosing their Internet providers based on which websites they like to visit.
A federal judge in New York did precisely what many knew he would do - he struck down the state's limit on campaign contributions by independent groups. According to the NYTimes:
In a five-page opinion, Judge Crotty lamented the influence of outsize donations in today’s political system. He wrote that the voices of regular citizens “are too often drowned out by the few who have great resources,” and disagreed with some of the Supreme Court’s analysis in the recent case, McCutcheon v. Federal Election Commission.
But despite his concerns, Judge Crotty wrote that he had no choice but to follow the Supreme Court’s lead in that case and in the landmark Citizens United campaign finance case, as well as the guidance of the Second Circuit.
“Our Supreme Court,” he wrote, “has made clear that only certain contribution limits comport with the First Amendment.”
I did a double take to make sure this article didn't come from Wonkette or The Onion, but, alas, it did not. Despite already having a stand-y'er-ground law in South Carolina, the Courthouse News Service reports that the Senate Judiciary Committee has passed this entirely superfluous bill:
The bill defines an "unborn child" as "the offspring of human beings from conception until birth.
People may use deadly force to protect themselves and others against the threat of "imminent peril of death or great bodily injury" under the state's current law.
Supporters of the "Pregnant Women's Protection Act" claimed that without this law, pregnant women could face attacks that may cause them to miscarry, but that might not justify the use of lethal force.
Thursday, April 24, 2014
The Constitution delegates election administration to both the federal government and the state governments. But delineating the boundary between these sovereigns has not been a particularly easy task. The Supreme Court has not been inclined to offer precision regarding the proper scope of authority. This essay examines risk of overlapping roles in the Election Clauses among legislatures and executive officials, as litigation over those proper roles looms. It highlights the uncertainty in two recent Supreme Court opinions, Arizona v. Inter Tribal Council of Arizona and Shelby County v. Holder, and notes that the Court's jurisprudence has left considerable "play in the joints," not necessarily because the Election Clauses are in tension, but because of its unwillingness to explain how matters like voter identification and registration should probably be allocated. It identifies some initial solutions for categorizing certain types of election laws, and emphasizes the deep uncertainty in the existing jurisprudence.
This Article presents a new historical account of Stump v. Sparkman, one of the most controversial Supreme Court decisions in the past fifty years. Stump is the 1978 judicial immunity opinion in which the Supreme Court declared that judges are absolutely immune from liability for their official judicial acts. The case involved the involuntary sterilization of a fifteen-year-old girl pursuant to an ex parte court order issued by a state judge. The basic project of the Article is to show why this largely overlooked case is important in American constitutional law beyond the narrow issue of judicial immunity, recovering it as a canonical decision relevant to contemporary debates about constitutional reproductive rights and procedural due process.
Stump emerged from an ongoing set of discussions about the nature and scope of then-nascent constitutional protections for reproductive rights, as well as access to the federal courts by civil rights claimants. These issues continue to be a matter of intense debate, as states and courts reign in the scope of reproductive rights, and as federal judges increasingly employ procedural rules limiting the ability of civil rights victims to pursue their claims and receive a decision on the merits in federal court. This Article’s close examination of the historical antecedents to these trends, as reflected in Stump, can help courts envision more just alternatives to the present course on these fundamentally important procedural and substantive questions.
N.Y. Fed did not violate whistleblower laws by firing employee for allegedly refusing to falsify report
After allegeldy refusing to change a critical report on Goldman Sachs, former bank examiner Carmen Segarra claims that the Federal Reserve Bank of New York terminated her in violation of federal whistleblower protections. Yesterday, a federal judge held that she did not qualify as a whistleblower under federal law because she had not disclosed the Fed's alleged wrongdoings to a third party. As ProPublica's Jake Bernstein reports:
The law, enacted in 1989 after the savings and loan crisis to protect bank examiners from outside interference, covers an individual who "discloses protected information to a third party, not when she is asked to alter that information," the judge ruled.
The judge dismissed the claims against the three officials, saying the law could only be used to file lawsuits against institutions and not individuals. Known as the "depository institution employee protection remedy," it safeguards examiners who "provide information" about "any possible violation of any law or regulation."
In her ruling, Abrams also concluded that the Fed guidance Segarra cited — that Goldman Sachs have a firm-wide conflicts-of-interest policy — was only advisory and not a law or regulation. As such, it was not covered under the statute, the judge decided.
At its upcoming national convention in Indianapolis, the National Rifle Association plans to promote a federal law permitting gun owners to travel across state lines with lisenced weapons. The LATimes reports:
In the past, the NRA has worked to get a national reciprocity bill, allowing guns that are licensed by one state to be legally carried across state lines. At present, the laws are a patchwork quilt, with about 40 states allowing some form of reciprocity.
In 2011, the GOP-controlled House of Representatives approved the National Right-to-Carry Reciprocity Act, intended to allow gun owners to travel more easily from state to state without worrying about whether their permit to carry a concealed weapon is valid. The legislation had bipartisan support, passing 272-154, with 229 Republicans and 43 Democrats voting yes.
But since the Senate was not going to take up the measure, the House action was essentially a show vote for lawmakers seeking to curry favor with the NRA and other gun rights advocates.
A similar measure failed in 2009 in the Democratic-led Senate, with a 58-39 vote that, although a majority, feel short of the 60 votes needed to overcome a filibuster. The closeness of that vote highlighted the power of the NRA, with its 5 million members, to pressure both parties on gun issues.
Well, that didn't take long. Just days after staying the executions of two death row inmates, the Oklahoma Supreme Court announced on Wednesday that the inmates did not have a right to know the source of the drug cocktails that would be used to kill them. The court dissolved the stays and the inmates soon will be executed.
Today, the governor announced that the state plans to carry out the exections of Clayton Lockett and Charles Warner on the same day. According to the AP:
It's rare for multiple executions to happen in one day, with only Arkansas, Illinois, South Carolina and Texas doing so since the death penalty was reinstated in the U.S. in 1976, according to the Washington, D.C.-based Death Penalty Information Center.
"I think it's actually becoming less common because states have deliberately spaced things out," said Richard Dieter, executive director of the center, which opposes capital punishment. "It takes a toll on a prison and its personnel."
The most recent occurrence of two inmates being executed on the same day was Aug. 9, 2000, in Texas. The last time Oklahoma did it was June 11, 1937, when convicted murderers Charlie Sands and Leon Siler were electrocuted.
Arkansas is the only state that has executed three inmates on the same day since 1976: once in 1994 and again in 1997. In both instances, all three executions were carried out in less than three hours, according to the Arkansas Department of Corrections.
NPR's Scott Simon asked retired Supreme Court Justice John Paul Stevens if marijuana should be legalized under federal law:
"Yes," Stevens replied. "I really think that that's another instance of public opinion [that's] changed. And recognize that the distinction between marijuana and alcoholic beverages is really not much of a distinction. Alcohol, the prohibition against selling and dispensing alcoholic beverages has I think been generally, there's a general consensus that it was not worth the cost. And I think really in time that will be the general consensus with respect to this particular drug."
Part of a discussion on electoral “dysfunction,” this Essay suggests that the Roberts Court has come to view a good deal of contemporary electoral regulation as impermissibly redistributive. The Court, moreover, sees the type of political participation displaced by many contemporary regulations as a neutral baseline against which to gauge challenged regulations rather than itself the product of affirmative regulation. Put differently, this Essay presses the claim that the present Court confronts contemporary efforts to regulate the electoral process much like the Lochner Court approached progressive wage and hour legislation a century ago. It suggests that much of what the Roberts Court has been up to in the electoral arena may be explained by the dominant understanding of the Lochner era.
A teacher in Virginia has sued school officials for civil rights violations following an alleged strip search. According to her complaint, after the parent of one of her students reported a child with scabies, the assistant principle interrupted the teacher's class and escorted her from her classroom to the nurse's office where she was forced to remove everything but her undergarments. The nurse looked her over, but found nothing. The teacher then "returned to her class to continue teaching though very upset." According to the Courthouse News service:
[She] says the search violated her Fourth and Fourteenth Amendment rights to bodily privacy.
"Because a parent or guardian of the student made an unsupported allegation, with no rational connection to the plaintiff, the defendants responded with an intrusive search," she says in the lawsuit. "The search was unjustified at its inception, and the nature of the search as conducted - removing Ms. Anderson's clothes to inspect her body for mites - was not reasonable to the perceived or alleged problem in its scope, and unsupported by any objective facts."
Anderson, who says she suffers from severe mental anguish and embarrassment from the search, seeks $622,000 in damages.
Wednesday, April 23, 2014
UPDATE: SCOTUS also has reversed a lower court's decision overturning the death sentence given to a Kentucky man for the kidnap, rape and murder of a teenager in 1997. The AP reports:
Woodall pleaded guilty to kidnapping Hansen on Jan. 25, 1997, from a convenience store in western Kentucky. Woodall acknowledged that he raped the girl and slit her throat twice before taking her body to Luzerne Lake and throwing it in the water. DNA evidence, fingerprints and footprints led to Woodall.
A jury imposed a death sentence, but more than a decade later, a federal court found the jury instructions were flawed and overturned that sentence. The 6th U.S. Circuit Court of Appeals upheld that ruling in 2012.
Chief Justice John Roberts and Justices Anthony Kennedy, Samuel Alito, Clarence Thomas and Elena Kagan joined Scalia's opinion reversing the appeals court.
To overturn a death sentence, Scalia said, Woodall had to show the decision involved an "unreasonable application" of clearly established federal law. But that standard can be met "only if the error alleged is so obvious that there could be no fairminded disagreement about its existence," Scalia said. In this case, the majority found the trial judge's decision was not unreasonable.
Justice Stephen Breyer, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, said the "normal rule is that Fifth Amendment protections apply during trial and sentencing." Breyer said the high court's precedent was clear in requiring the no-adverse-inference instruction during a sentencing hearing.
SCOTUS has denied William Rousan's request for a stay of execution for the 1993 killing of a couple in Missouri by Rousan, his brother, and his son. After rehearsing the gory details of the crime, The Guardian reports:
Brent Rousan pleaded guilty to two counts of first-degree murder and was sentenced to life in prison without the possibility of parole. Robert Rousan co-operated with prosecutors and pleaded
guilty to second-degree murder. He served seven years in prison and was released in 2001.
Governor Jay Nixon declined William Rousan's clemency request Tuesday evening, clearing the way for the execution to proceed. In a statement explaining his decision, Nixon said he thought Rousan's sentence was appropriate for his alleged role as the mastermind behind the "cold-blooded plot" that led to the couple's slayings.
Earlier Tuesday, the US supreme court turned down Rousan's request to delay his execution.
Efforts to spare Rousan's life hinged an argument that has held little sway over the courts — concerns about the secrecy used to obtain the execution drug, and the possibility that a substandard drug could cause pain and suffering in the execution process.
Several states, including Missouri, now use compounded execution drugs purchased from unnamed pharmacies. Courts so far have allowed most executions to move forward. However, on Monday, the Oklahoma supreme court stayed the executions of two death row inmates who challenged the secrecy surrounding the process of procuring execution drugs.
Missouri has executed one death row inmate each month since November. Another Missouri inmate, Russell Bucklew, is scheduled for execution on May 21. Only Texas, with seven executions, has executed more inmates than Missouri's four so far in 2014. Florida has also executed four inmates this year.
The DOJ announced today that thousands of non-violent drug offenders will be eligible for early release. Eligibility will depend on whether:
They are nonviolent, low-level offenders without "significant ties to large scale criminal organizations, gangs or cartels.
They have served at least 10 years of their sentence.
They do not have a "significant criminal history."
They have demonstrated good conduct in prison.
They have no history of violence before or during their current imprisonment."
The new clemency guidelines reflect the DOJ's ongoing effort to mitigate sentencing disparities between crack and powder cocaine as a result of mandatory minimums before the 2010 Fair Sentencing Act.
Inmates, the administration said, will be notified in coming days about the expedited clemency program, and how to access pro bono lawyers through a working group called Clemency Project 2014. The group, formed after Cole asked lawyers to help with the clemency initiative, includes federal defenders, as well as representatives from groups including the American Civil Liberties Union and the American Bar Association.
While the move has been hailed by groups working for fairness and sentencing, and also additional changes to mandatory minimum drug sentences – including bipartisan efforts on Capitol Hill – some prosecutors have expressed skepticism about the clemency initiative.
"Americans want to rest assured knowing that 10 years means 10 years, and life in prison means life in prison," says Scott Burns, head of the National District Attorneys Association. "Prosecutors' fears are that our low level of serious crime in America will begin to rise – and nobody will monitor the cost of re-arresting and re-prosecuting offenders when they commit new crimes."
Tuesday, April 22, 2014
Texas Observer reports that the Project for Fair Representation has a new project--diluting minority representative power in Texas's legislature. The one-man group represented Shelby County, Alabama in its successful challenge to the Voting Rights Act's preclearance requirement, which the Supreme Court struck down last year. Now, it aims to amend the way Texas apportions its representative districts. As the Observer's Christopher Hooks reports:
The conservative group’s legal challenge objects to the fact that that number includes many people who can’t vote, including children, convicted felons and, most important, non-citizens—both undocumented migrants and permanent residents who are foreign nationals. The suit argues that counting people who aren’t eligible voters is a violation of the Fourteenth Amendment. The Project on Fair Representation wants the Legislature to attempt to draw senate districts that have an identical number of eligible voters, or citizen voting age population (CVAP.) Under that method, each senate district would be drawn to have about 502,000 eligible voters.
That might sound like a relatively innocuous change, but it would dramatically alter the political landscape in Texas. Redrawing districts under the new rules might decrease the political polarization in the state Senate—creating more ideologically-similar districts—but at the same time it would dramatically lessen the voice non-white voters have in the political process. Those who are too young to vote, or legally unable to vote, wouldn’t be counted as people when it comes to distributing representation in the state Senate. And urban areas like Houston, which have a large number of non-voting residents, would be effectively disadvantaged in the Senate.
The state senate districts with the highest number of non-voters are represented by state Sen. Sylvia Garcia (D-Houston) state Sen. Rodney Ellis (D-Houston) and state Sen. Eddie Lucio (D-Brownsville), all of whom currently represent both a large number of children and non-citizens. They’re also among the most progressive members of the Senate.
If the conservative group’s plan were adopted today, all three would have their districts redrawn to include more eligible voters. That would mean, especially in Houston, likely pulling from the region’s pool of Anglo voters, according to Li. And those senators would also represent more people than others. Poor and young residents of the district would effectively have their voices in the Senate diluted, as their elected senator found themselves with many more constituents than before.
Meanwhile, the senators who represent districts with fewest non-voters would include state Sen. Bob Nichols (R-Jacksonville) and state Sen. Craig Estes (R-Wichita Falls) who have whiter electorates. Their districts might not change much.
Li says the conservative group’s effort, if successful, might make certain Democratic-leaning districts more politically competitive. But asked specifically about Ellis’ and Garcia’s districts—the biggest outliers—he said the changes might be less about political affiliation than which voices are represented. “I don’t think the risk is that it becomes a Republican district per se,” he said. “But there clearly is a political benefit here, and the benefit doesn’t favor African-Americans and Hispanics.”
Moreover, he says, such a plan would be difficult to implement. The true number of voting eligible residents in a given area would be “very difficult to tabulate.” The Census doesn’t ask about citizenship status. And to exclude voting-age felons, you’d need to ascertain and track their status. “It’s really hard to do this on a state level,” he says, “especially in a state that’s as complicated as Texas.”
CRL&P related posts:
- "(Mis)Trusting States to Run Elections"
- "The Future of Voting Rights in Indian Country Following Shelby County and Inter Tribal Council of Arizona"
- "Responding to Shelby County: A Grand Election Bargain"
- Voting rights activists hope courts will impose preclearance under VRA on five previously covered states
- Shelby County's impact on voting rights policy will likely be 'deeply destabilizing,' argue Profs. Charles and Fuentes-Rohwer
- Plaintiffs in voting rights lawsuits will have procedurally and substantively less protection under § 2 of VRA, writes Professor Stephanopoulos
Persuasion in Civil Rights Advocacy Symposium Michigan State University College of Law Call for Papers
MSU has issued this call for papers for its upcoming and exciting symposium titled Persuasion in Civil Rights Advocacy. Here's the information:
We are delighted to announce this call for papers for a symposium examining Persuasion in Civil Rights Advocacy. The symposium is scheduled for Friday and Saturday, April 10-11, 2015, at Michigan State University College of Law. It is sponsored by the Michigan State Law Review and conceived, coordinated, and co-sponsored by the Research, Writing, and Advocacy program of Michigan State University College of Law. Presenters will speak at the symposium and publish their papers in a special edition of the Michigan State Law Review.
Your presentation and paper should examine persuasive methods used by either side or both sides in civil rights disputes. Selections from responses to the call for papers will add to a lineup of already-confirmed presenters, including the following scholars:
Keynote – Erwin Chemerinsky: University of California, Irvine School of Law Dean, Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law
Linda Berger: University of Nevada, Las Vegas, William S. Boyd School of Law Family Foundation Professor of Law Topic: The Color-Blind Constitution: Unanticipated Consequences of Past Brief-Writing for Shaping Future Decisions Regarding Racial Classifications in Public Schools
Charles Calleros: Arizona State University, Sandra Day O’Connor College of Law Topic: Viewing Same-Sex Rights in the Context of the Evolution of Other Civil Rights
Nora Demleitner: Washington and Lee University School of Law Dean, and Roy L. Steinheimer, Jr. Professor of Law
Linda Edwards: University of Nevada, Las Vegas, William S. Boyd School of Law E.L. Cord Foundation Professor of Law Topic: Hearing Voices: Legitimate Uses of Non-Party Narratives in Abortion and Gay Rights Litigation
Matthew Fletcher: Michigan State University College of Law Director of the Indigenous Law & Policy Center Topic: Advocacy and Candor before the Court; Inter-Tribal Complications
David Frakt: Office of Military Commissions, Defense Counsel at Guantanamo Topic: Representing Guantanamo Detainees
Luis Fuentes-Rohwer: University of Indiana, Maurer School of Law Harry T. Ice Faculty Fellow Topic: Changing Conceptions of Racial Discrimination in Voting Rights
Michael Olivas: University of Houston Law Center William B. Bates Distinguished Chair of Law, and Director of Institute of Higher Education Law & Governance Topic: Who Gets to Control Civil Rights Case Management?
Ruth Anne Robbins: Rutgers University School of Law - Camden Director of Lawyering Programs Topic: Right to Counsel at Domestic Violence Restraining Order Hearings: Working with Student-Written Amicus Briefs
Pamela Wilkins: University of Detroit Mercy School of Law Associate Dean for Academic Affairs Topic: Jury Instructions and Defense Arguments on Race Switching: What the Evidence Shows in Cross-Racial Criminal Cases
In addition, the Radicalism Collection of the Michigan State University Library will have an exhibition of pamphlets and other items.
The deadline for submissions is Friday, October 10, 2014, 5:00 PM Eastern Time. Michigan State Law Review anticipates notifying applicants in November, 2014 about acceptance of proposals for the April, 2015 symposium.
To submit a proposal for the symposium, please send the following items in a Word file e-mail attachment to William Cox, Senior Symposia Editor of the Michigan State Law Review, with the subject line “spring 2015 symposium.” His e-mail address is: firstname.lastname@example.org
An abstract summarizing your article.
- A two-page excerpt from your article.
- An estimate of the anticipated final length of your article. Final papers should be equivalent in length to 20-60 typeset pages.
- A copy of your CV.
- An indication of whether your presentation would differ significantly from your article – such as whether the presentation would address only one particular section of a multi-section paper.
We look forward to receiving your submissions!
Questions can be directed to:
Bruce Ching , Assistant Clinical Professor, Michigan State University College of Law, email@example.com
The New York Times reports that the Oklahoma Supreme Court has delayed the executions of two inmates challenging the state's law protecting the identity of its source of lethal injection drugs. The inmates' attorney said they were "relieved" that the court has granted them the opportunity "to fully adjudicate the serious constitutional issues about the extreme secrecy surrounding [the state's] lethal injection procedures," while the state's attorney general called the court's decision "a constitutional crisis for our state."
The Times reports:
The case for a delay had seemed airtight to many legal experts. Last month, a state district court declared that a 2011 supplier-secrecy law, which officials said they needed to coax companies to supply scarce execution drugs, was unconstitutional. In effect, the court agreed that the condemned have a right to know how they will be put to death and to question, at least, whether the untested drug combination the state says it will use, from sources it refuses to reveal, could amount to cruel and unusual punishment.
The case is part of a growing legal battlenationally over secrecy in methods of execution, as traditional drugs have become scarce and states have engaged in covert scrambles to find new drug combinations and manufacturers. Oklahoma officials say they must offer secrecy because potential manufacturers fear reprisals for involvement with the death penalty.
The decision overturning Oklahoma’s supplier-secrecy law, made March 26 by Judge Patricia Parrish, is now under appeal. But in the meantime, Judge Parrish said, it was up to the state’s Court of Criminal Appeals to issue a stay of execution while the issue plays out.
The defendants applied to that court, but it asserted that under its governing statute, it had no jurisdiction because the condemned men had no pending case before their court, such as an appeal of their convictions or sentences.
So the lawyers appealed to the Oklahoma Supreme Court. Last Thursday, in the latest of several increasingly pointed go-rounds, the Supreme Court said that the Oklahoma Constitution gave it the authority to decide matters of court jurisdiction and that the Court of Criminal Appeals was misreading its own statute and should handle the request for an emergency stay.
On Friday, the criminal court responded with the bureaucratic equivalent of “mind your own business,” saying the Oklahoma Supreme Court does not have the power “to manufacture jurisdiction” in the criminal court “by merely transferring it here.”
Because sources for execution drugs have dried up, states have had to turn to compounding pharmacies subject to less government regulation for substitute drug cocktails. However, due to staunch opposition to the death penalty (and for fear that there will be nowhere else to turn for their fix), states have taken steps to ensure that these sources remain anonymous.
In an editorial earlier this year, The Times called such secrecy "cowardly" and condemned the continued use of the death penalty as "barbaric, racist and arbitrary in its application."
CRL&P related posts:
- Judge blocks Missouri's access to execution drug
- NYTimes calls for end to 'barbaric, racist' death penalty
- When victims' families defend defendants against capital punishment
- Correcting a Fatal Lottery: A Proposal to Apply the Civil Discrimination Standards to the Death Penalty
- Ohio delays execution as inmate seeks to donate organs
- Attorney: Ohio execution changes not acceptable
Monday, April 21, 2014
Candidates for federal office must meet several constitutional qualifications. Sometimes, whether a candidate meets those qualifications is a matter of dispute. Courts and litigants often assume that a state has the power to include or exclude candidates from the ballot on the basis of the state’s own scrutiny of candidates’ qualifications. Courts and litigants also often assume that the matter is not left to the states but to Congress or another political actor. But those contradictory assumptions have never been examined, until now.
This Article compiles the mandates of the Constitution, the precedents of Congress, the practices of states administering the ballot, and scraps of judicial precedents in litigated cases. It concludes that states have no role in evaluating the qualifications of congressional candidates — the matter is reserved to the people, and to Congress. It then concludes that while states do have the power to scrutinize qualifications for presidential candidates, they are not obligated to do so under the Constitution. If state legislatures choose to exercise that power, it comes at the risk of ceding reviewing power toelection officials, partisan litigants, and the judiciary. The Article then offers a framework for future litigation that protects the guarantees of the Constitution, the rights of the voters, and the authorities of the sovereigns.
Saturday, April 19, 2014
As described in Part I of this article, the Supreme Court has strongly indicated that First Amendment tools should be employed to help resolve Second Amendment issues. Before District of Columbia v. Heller, several Supreme Court cases suggested that the First and Second Amendments should be interpreted in the same manner. Heller and McDonald v. City of Chicago applied this approach, using First Amendment analogies to resolve many SecondAmendment questions.
Part II of this Article details how influential lower court decisions have followed (or misapplied) the Supreme Court’s teaching. Of course, precise First Amendment rules cannot necessarily be applied verbatim to the SecondAmendment. Part III outlines some general First Amendment principles that are also valid for the SecondAmendment. Finally, Part IV looks at how several First Amendment doctrines can be used in Second Amendmentcases, showing that some, but not all, First Amendment doctrines can readily fit into Second Amendmentjurisprudence.
Thursday, April 17, 2014
In his book series, We the People, Bruce Ackerman offers a rich description of how constitutional law comes to be changed by social movements. He also makes some normative claims about "popular sovereignty," "popular consent," "higher law," and "higher-lawmaking." In this essay, I examine these claims and find them to be both highly under-theorized and deeply problematic. Ackerman’s own presentation of what he considers to be an informal process of constitutional amendment illustrates the importance of formality in protecting the rights retained by the people. And he assumes a collective conception of popular sovereignty without considering the serious normative problems raised by majority and supermajority rule. Rule by a majority or supermajority is not the answer to the problem of constitutional legitimacy; it is the problem that requires a normative solution. As an alternative to collective or majoritarian conceptions of popular sovereignty, I identify an individualist conception that yields fundamentally different conclusions about the purpose of a written constitution, including the importance of written amendments in safeguarding the rights retained by a sovereign people, each and every one. Finally, in a Postscript I respond to Professor Ackerman’s reply to this essay.
(h/t Volokh Conspiracy)
Tuesday, April 15, 2014
The U.S. Justice Department and Ohio officials have reached an agreement that will reduce the amount of time spent in isolation by young people in state juvenile correctional facilities, reports the Sandusky Register. Last month, federal officials filed a lawsuit asserting that youths are being held in seclusion for significant periods of time at four locations. “Numerous national studies have established that seclusion of youth with mental health disorders even for short periods of time can severely harm youth,” said the lawsuit. One youth was in seclusion for 19 days, and another for 21 days.The suit asked a court to end the practice of putting youths in seclusion for long periods of time and to provide better mental health treatment. Erie County Juvenile Court Judge Robert DeLamatre said the number of youth in state juvenile correctional facilities had declined dramatically, from about 2,300 in 2001 to 500 today. Ongoing litigation over the state system probably made some judges more reluctant to send youth into the state system, he said. “Certainly the lawsuit brought a spotlight on conditions, and things in the department that may be a little invisible to [judges.] We don’t know on a day to day business how that youth is being treated,” he said.
As the judicial and legislative branches have taken a more passive approach to civil rights enforcement, the President’s exercise of independent, extrajudicial constitutional judgment has become increasingly important. Modern U.S. presidents have advanced constitutional interpretations on matters of race, gender, HIV-status, self-incrimination, reproductive liberty, and gun rights, and President Obama has been especially active in promoting therights of lesbian, gay, bisexual, and transgender (LGBT) persons — most famously by refusing to defend the Defense of Marriage Act (DOMA). Commentators have criticized the President’s refusal to defend DOMA from numerous perspectives but have not considered how the President’s DOMA policy fits within a principled commitment to LGBT equality that includes supporting and signing legislation, pursuing regulatory initiatives, filing complaints and other court papers, making formal and informal choices in law enforcement, and using the bully pulpit to sway public opinion. The President’s nondefense of DOMA not only derives normative force from his larger vision regarding substantive equality and individual rights, but it also demonstrates how certain features of the presidency — including accountability and expertise — can be instrumental in promoting equality-based claims. In this way, presidential constitutionalism can engage coordinate institutions — including the Supreme Court — in the development of constitutional law.
Friday, April 11, 2014
"Analyzing the SDNY's Amended 'Related Case' Rule: The Process for Challenging Nonrandom Case Assignment Remains Inadequate"
On October 31, 2013, the Second Circuit relied on a little-known Division of Business Rule to remove a well-respected and long-serving jurist from two high-profile stop-and-frisk cases. This highly unusual and unexpected move has stirred up an uproar of public support for the judge. But the Southern District of New York’s Division of Business Rule 13, the catalyst for a series of unprecedented procedural twists and turns, has been left unexamined. This essay refocuses the discussion on the overlooked rule at issue in Judge Scheindlin’s removal. First, it explains the consequences of Rule 13’s Division of Business label. Unlike local rules of civil procedure, Rule 13 is not subject to review by the Second Circuit, nor is it open to public comment. Creation and enforcement of a district court’s division of business rules are delegated to the court itself; unsurprisingly, decisions made pursuant to such rules are largely unreviewable. Next, this essay explains that precisely because it was a division of business rule, Rule 13 permitted case assignment decisions that might have raised red flags had they occurred pursuant to a local rule of civil procedure. This essay further argues that Rule 13 was only nominally a rule about relatedness. Instead, it functioned as a mechanism through which judges could pull certain cases onto their docket based on the cases’ subject matter. Rule 13 is the reason so many high-profile stop-and-frisk cases were sent to Judge Scheindlin, as opposed to being divvied up at random amongst all S.D.N.Y. judges. The essay also tracks how the stop-and-frisk cases were assigned, their odd procedural history on appeal, and recent hints of settlement.
On December 18, 2013, the S.D.N.Y adopted amendments to Division of Business Rule 13, seemingly in reaction to the circumstances that caused Judge Scheindlin’s removal. This essay ends with an analysis of the amendments, concluding that they do not do enough to explain why a judge decides to deem a case related to an earlier-filed matter. The amendments also do not create meaningful motion practice through which parties can challenge a relatedness decision. Rather, the district’s case assignment procedures remain shrouded in secrecy, and, most disturbingly, are still easy to manipulate. If a judge wants to overcome random case assignment and engage in subject matter-specific case shopping, the S.D.N.Y.’s Division of Business rules will not stop it.
CRL&P related posts:
- Debate: The Constitutionality of Stop-and-Frisk in New York City
- Across the Hudson: Taking the Stop and Frisk Debate Beyond New York City
- "Probabilities, Perceptions, Consequences and 'Discrimination': One Puzzle About Controversial 'Stop and Frisk'"
- "The Inverse Relationship between the Constitutionality and Effectiveness of New York City 'Stop and Frisk'"
- "Stop and Frisk Didn't Make New York Safer"
- While on the topic of stop-and-frisk...
Obama expected to use today's civil rights speech at the National Action Network to address voting rights. He should unequivocally state that the right to vote is political speech under the First Amendment.
Judge rules California's use of pepper spray on mentally ill prisoners violates their constitutional rights.
Celebrating the 50th Anniversary of the Civil Rights Act; and, LBJ gets lots of love. Others wonder whether SCOTUS's recent decisions signal danger for the Civil rights Act.
Federal judge rejects man's civil rights claim alleging that police cited him on suspicion of violating San Diego's anti-nudity ordinance because he was gay.
Oregon judge holds flashing headlights to alert other drivers of law enforcement is protected under First Amendment
The AP reports that an Oregon judge has ruled that the First Amendment protects drivers who flash their headlights to alert other drivers of the presence law enforcement as free speech. According to the judge, "The government certainly can and should enforce the traffic laws for the safety of all drivers on the road. However, the government cannot enforce the traffic laws, or any other laws, to punish drivers for their expressive conduct."
Hauling a truckload of logs to a Southern Oregon mill last fall, Chris Hill noticed a sheriff's deputy behind him and flashed his lights to warn a UPS driver coming the other way.
The deputy pulled over Hill on U.S. Highway 140 in White City and handed him a $260 ticket for improperly using his headlights, saying another deputy had seen the flashing lights from behind the UPS truck and alerted him to stop the log truck because of the signaling.
Outraged, Hill decided to fight the ticket, and on Wednesday, a Jackson County Justice Court judge dismissed the citation, finding that motorists flashing their headlights amounts to speech protected by the Oregon Constitution.
Judge Joseph Carter determined the law covering the use of high beams was valid, but was unconstitutional as it was applied by the deputy.
First Amendment protection of such conduct seems entirely reasonable to me. SCOTUS has routinely extended speech protection to generalized expressions, even when the reasoning for such expressions is not known. For example, it has protected signatures on referendum petitions, the wearing of black armbands in protest of the Vietnam War, and political yard signs. The Fourth Circuit recently even granted speech protection to support for a political candidate's campaign on Facebook by clicking the "Like" icon. Flashing one's headlights at another driver (for whatever reason) seems no less worthy of protection.
The most compelling detail in this story is that the driver who originally received the ticket represented himself.
As the article notes, Mr. Hill is an experienced driver who decided to fight the citation to protect himself against an increase to his insurance rate. So, he researched the issue and decided the free speech argument was applicable to the conduct for which he was ticketed. And the judge agreed.
Nicely played, sir! Nicely played indeed.
Thursday, April 10, 2014
Court has done so not explicitly but through two judicial maneuvers, one substantive and the other procedural, that place tremendous trust in states: lowering the bar for the state interest prong of the constitutional analysis, and forbidding facial challenges to state rules on election administration. The Court has credited any state assertion of “election integrity,” even if that is not the actual impetus for the law under review. It also will reject a facial challenge to a state voting rule, thereby leaving the law in place until a plaintiff has gathered actual evidence of the law’s impact on particular voters. The Court has not treated Congress the same, demonstrating its willingness to invalidate a federal voting rule on its face even when Congress has asserted a more detailed rationale for the law. This Article uncovers this approach to constitutional challenges to voting regulations. It also explains why this current jurisprudence is both wrong and dangerous. It is wrong because the U.S. Constitution gives the federal government significant scope to promulgate election regulations, and states are subordinate to Congress under our constitutional structure. It is dangerous because the current deferential approach emboldens states to pass partisan-based laws with an eye toward affecting elections, and all a state needs to say to justify a new law is that it is seeking to ensure “election integrity.” The Court should reverse this current jurisprudence by requiring states to provide a more detailed justification for an election law and by allowing broader use of facial challenges to invalidate state voting laws, when necessary, before they are implemented. Voting, as a fundamental right, deserves robust protection from the courts. Scrutinizing state election laws more closely will help to achieve this worthy goal.
Wednesday, April 9, 2014
"The Future of Voting Rights in Indian Country Following Shelby County and Inter Tribal Council of Arizona"
This past term the United States Supreme Court issued two decisions involving voting rights – Shelby County v. Holder and Arizona v. Inter Tribal Council of Arizona. The Court in Shelby County struck down Section 4 of the Voting Rights Act, and Inter Tribal Council held the National Voter Registration Act preempted Arizona’s election requirements. Scholars’ and practitioners’ focus on Shelby County has not considered the impact on Indian voters or reservation residents. This Article seeks to fill the gap by examining the Shelby County and Inter Tribal Council decisions, and strives to provide some insight and effective responses with regard to impacts on Native American voters across Indian country. It provides a comprehensive discussion of voting measures, actions, cooperative agreements and laws that should be considered and implemented by Indian tribes, states, the federal government, and Indian voters to address the void left by the two decisions.
Tuesday, April 8, 2014
SCOTUS isn't ready to consider the ban on campaign contributions by corporations to political candidates.
Federal judge rejects Texas legislators' claims to qualified immunity as to documents relating to state's voter ID law; VP Biden urges Democrats to combat efforts to restrict voting rights; and, New York likely will be the third state to join the National Popular Vote Interstate Compact.
Idaho asks federal judge to dismiss the lawsuit alleging that the state's new law prohibiting the filming of animal abuse violates the First Amendment.
SCOTUS declines to consider a challenge to NSA's mass surveillance program at this time.
Former SCOTUS justice Stevens wants to abolish the death penalty.
Monday, April 7, 2014
The Associated Press reports the results of its recent survey of state policies as to the identities of providers of execution drugs. It found that the "vast majority" of states protect the identity of their providers. The notable exceptions are Delaware, Nevada, Ohio and Virginia. The article begins:
Dating to the days when the guillotine operator or the hangman wore a mask, a certain amount of anonymity has always surrounded executions. But that secrecy is increasingly coming under fire, with judges, death penalty opponents and lawyers questioning why so little can be known about a state's most solemn responsibility.
An Associated Press survey of the 32 death penalty states found that the vast majority refuse to disclose the source of their execution drugs. The states cloaked in secrecy include some with the most active death chambers — among them Texas, Florida, Oklahoma and Missouri.
Most states have recently begun relying on loosely regulated "compounding pharmacies" for execution drugs but refuse to name them, citing concerns about backlash that could endanger the supplier's safety. But many states refuse to provide even more basic information — how much of the drug is on hand, the expiration date, how it is tested. Those who question the secrecy wonder how an inmate's constitutional right against cruel and unusual punishment can be guaranteed if nothing is known about the drug being used to kill him.
"As far as we know, it could be coming from a veterinary source, it could be coming from some dark corner of the Internet," said Cheryl Pilate, a Kansas City, Mo., attorney who handles death row appeals. "We simply don't know."
The most prolific death penalty states have successfully deflected most challenges to secretive protocols. But momentum is building toward unlocking details.
CRL&P related posts:
- Judge blocks Missouri's access to execution drug
- NYTimes calls for end to 'barbaric, racist' death penalty
- When victims' families defend defendants against capital punishment
- Correcting a Fatal Lottery: A Proposal to Apply the Civil Discrimination Standards to the Death Penalty
- Oklahoma used already executed convicts as disposals for unused execution drugs
- Union requests changes to Texas's solitary confinement policy for death row inmates
- There's an alarming number of deaths in US jails
Family of Gulf War veteran who suffered from PTSD files a civil rights suit alleging excessive force by the police officers who killed him.
Conference committee of Missouri legislature to reconcile bills allowing state residents to sue federal agents enforcing federal gun laws; Kansas legislature passes a bill establishing uniform gun permitting regulations across the state; state raises questions regarding the findings of the plaintiff's expert in the case challenging Colorado's new gun regulations; and, AP documents NRA's efforts to expand gun rights.
Federal judge rejects motion to dismiss challenge to Missouri's secrecy as to the provider of its execution drugs.
The title of this post comes from this excellent essay by Professor Richard Hasen. It's particularly compelling given the Supreme Court's decision last week in McCutcheon v. FEC striking down the BCRA's cap on aggregate campaign contributions. The abstract states:
This essay, written for a Duke Journal of Constitutional law and Public Policy symposium, considers the constitutionality of limiting contributions to "Super PACs" and other groups which make independent expenditures in candidate elections. It begins by demonstrating that the same four interests which may justify limiting multi-million dollar contributions to candidates -- the anti-bribery interest, the anti-undue influence interest, the equality interest, and the public confidence interest -- apply roughly equally to the interests justifying limiting multi-million dollar contributions to Super PACs. It then demonstrates that thanks to the Supreme Court's crabbed definition of "corruption" in its Citizens United decision, contribution limits imposed on Super PACs appear unconstitutional despite the parallel interests justifying limiting contributions to candidates and outside groups. The Essay then considers whether treating Super PACs which are reliable surrogates for a candidate's campaign as "coordinated" with a candidate would be an acceptable means of limiting contributions to Super PACs (on grounds that coordinated spending counts as a contribution to a candidate).
The Essay concludes that while the doctrinal move to an expanded definition of coordination to deal with the problem of Super PACs is completely understandable, given the state of current doctrine, the effort would be unlikely to be successful. Courts would be likely to reject a broad coordination rule as infringing on the First Amendment rights of those involved with independent Super PACs. Instead, coordination is the sideshow and the fight over the meaning of corruption is the main event. Reformers must convince the Supreme Court to return to the broader definition of corruption which extends anticorruption to include not just the prevention of bribery but also the prevention of undue influence. That day may not come until the Supreme Court personnel changes, but it is the linchpin for the successful resuscitation of meaningful campaign finance regulation in the United States.
CRL&P related posts:
- In Defense of 'Super PACs' and of the First Amendment
- The Last Rites of Public Campaign Financing?
- Citizens United exception permits state regulation of 'outside influence' in domestic politics
- Race or Party? How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere
- Old School/New School Speech Regulation
Friday, April 4, 2014
Today, WaPo reporter Jaime Fuller provides this intriguing historical summary of political spending and attempts by federal and state governments to regulate campaign finance. She begins by recounting the early efforts of a young George Washington to persuade voters by the then-common practice of treating--whereby candidates provided banquets of food and liquor at the polling place; she ends, of course, with the Supreme Court's decision earlier this week in McCutcheon v. FEC.
After recounting Washington's electioneering efforts in 1757, Fuller jumps to the campaign finance law passed by Congress in 1867 making it illegal to solicit donations from naval yard workers. However, the intervening years were not bereft of efforts to curb seemingly excessive spending in campaigns.
Colonial assemblies and state goverments routinely attempted to reduce the influence of money in politics. As Chilton Williamson documents in his book American Suffrage From Property to Democracy, 1760- 1860, "Colonial assemblies tried to curb these electoral abuses by a spate of laws...against the treating of electors[.]" Richard Dinkin notes, for example, the Maryland colonial assembly's attempt to limit such practices, citing a 1768 election law:
[T]hat on any petition for treating, this house will not take into consideration, or regard the greatness or smallness of any treat, but will in all cases, in which any person or persons,...directly or indirectly give, present, or allow to any person having a voice or vote in such election, any money, meat, drink, entertainment or provision, or make any present, gift reward, or entertainment,...whatsoever, in order to be elected, or for being elected, will declare the election of such person voice.
Additionally, the move from public to private voting by the adoption of the Australian ballot--or secret ballot--was often viewed as an effort to curtail campaign spending. In fact, the eventual popularization of the Australian ballot in the U.S. is commonly attributed to Henry George's 1883 article titled Money in Elections. Notably, he writes:
To begin with what I conceive would be the greatest single reform. By adopting the Australian plan of voting, now for some years in successful operation in England, we could abolish at one stroke all the expense of printing and distributing tickets, and all the expense and demoralization consequent on the employment of “workers,” and very much lessen the importance of party nominations and party machinery. Under that plan the ballots are printed at public expense, and contain names of all persons duly registered as candidates. When the voter approaches the poll he is handed one of these ballots. He enters a compartment, where a pencil or pen and ink are provided, and, concealed from observation, strikes off the names of those he does not which to vote for, or as in England, indicates by a mark those he prefers, and then folding up the ballot, presents it… [T]he corruption of primary politics, and the practice of selling votes in nominating convents, would be destroyed, and the practice of blackmailing candidates by the so-called indorsement of political clubs whose only object is to make money, would be destroyed…[T]he practice of buying votes, and that of coercing voters by error of discharge from employment, would be in large part, if not altogether, broken up by the difficulty of telling how a man voted. There would be no putting a ticket in a man’s hand and keeping an eye on it until deposited.
CRL&P related posts:
- A surprising story about unsurprising circumstances: political partisanship burdening the right to vote
- Facebook "like" and First Amendment protection for the right to vote
- Remembering Tinker: The right to vote as expressive conduct
- Felon disenfranchisement, political power, and the First Amendment right to vote
LATimes examines how McCutcheon decision might strengthen political parties; Reason.com's Root examines upcoming First Amendment political speech case challenging Ohio's bar on false statements about political candidates.
County commissioners in Texas allegedly violated the First Amendment rights of a candidate for the vacant county constable position by asking illegal questions during his interview.
Volunteer law enforcement officer testifies that Colorado's new restrictions on gun purchases and magazines sizes affect training, but former police chief disagrees; and, Fort Hood gun store receives unwanted attention after most recent shooting.
Texas executes inmate after SCOTUS rejects motion to stay pending an investigation by inmate's lawyers into the source of drugs used to kill.
Thursday, April 3, 2014
Ohio man who spent 20 years in prison sues the county prosecutors who put him there alleging that they withheld evidence and took advantage of his mental illness in pursuit of his conviction; waiter files lawsuit alleging anti-gay discrimination by Houston Rockets and the catering company for which he worked; and, New Mexican man files civil rights claim alleging excessive force by the prison officials who beat and Tased him while he was still restrained by shackles.
Texas abortion clinics sue to block state's new restrictive law requiring such facilities to meet building standards applicable to ambulatory surgical centers; and, federal appeals court stays Arizona's new abortion law preventing women from consuming abortion inducing drugs after the seventh week of pregnancy.
Mississippi 'religious freedom' bill allowing citizens and business to challenge laws that 'substantially burden' their 'exercise of religion' goes to the governor.
NPR examines the difficulties of implementing the Prison Rape Elimination Act.
North Carolina Board of Elections reports evidence of potential voter fraud.
Wednesday, April 2, 2014
This article revisits the claim that mass incarceration constitutes a new form of racial segregation, or Jim Crow. Drawing from historical sources, it demonstrates that proponents of the analogy miss an important commonality between the two phenomena, namely the debt that each owe to progressive and/or liberal politics. Though generally associated with repression and discrimination, both Jim Crow and mass incarceration owe their existence in part to enlightened reforms aimed at promoting black interests; albeit with perverse results. Recognizing the aspirational origins of systematic discrimination marks an important facet of comprehending the persistence of racial inequality in the United States.
SCOTUS: BCRA's aggregate contribution limits "intrude without justification" on First Amendment political speech
Today, the Supreme Court finally released its long-awaited decision in McCutcheon v. Federal Election Commission, which held that the Bipartisan Campaign Reform Act (BCRA) of 2002's combined campaign contribution limits on individual donors violate the First Amendment right to political speech. C.J. Roberts's plurality opinion concludes:
The Government has a strong interest, no less critical to our democratic system, in combatting corruption and its appearance. We have, however, held that this interest must be limited to a specific kind of corruption—quid pro quo corruption—in order to ensure that the Government’s efforts do not have the effect of restricting the First Amendment right of citizens to choose who shall govern them. For the reasons set forth, we conclude that the aggregate limits on contributions do not further the only governmental interest this Court accepted as legitimate in Buckley. They instead intrude without justification on a citizen’s ability to exercise “the most fundamental First Amendment activities.
At Slate, Professor Rick Hasen reacts:
It seemed pretty clear after oral argument that the government was going to lose—the five conservative Justices on the court have not voted to uphold a campaign finance limit since Justice Samuel Alito joined the court—but the question was how the government was going to lose. Of all the conservative jurists, Chief Justice John Roberts was hardest to pin down after argument, and he expressed some sympathy at the time with the government’s argument that if the aggregate limits fell, it would provide an opportunity for individuals to give multimillion-dollar checks to elected officials, parties, and political committees to be divvied up through sophisticated campaign finance entities. It even appeared that Roberts might vote to uphold some aggregate limits and strike down others.
But in today’s opinion, that hesitation and that potential to take a middle road evaporated. Instead we have vintage Roberts playing the long game. The tone is one of minimalism and moderation: We are only striking down aggregate limits, not the base limits, which currently prevent individuals from giving more than $2,600 per election to federal candidates. There are lots of things Congress can try to enact (though Roberts knows it won’t) in order to prevent the rise of these transfers and candidate fundraising committees. We don’t need to revisit the distinction the Supreme Court made in the 1976 case of Buckley v. Valeo, in which the court held that contribution limits are subject to less searching judicial review than spending limits.
But this is nevertheless a subtly awful decision. It is true that Roberts sidestepped today the question of whether to apply “strict scrutiny” of contribution limits in another case; he did not need to take that dramatic (and high-profile) step to do a whole lot of damage to campaign finance law. Instead, he did three things which now set the course toward even more campaign finance challenges under the First Amendment and more deregulation.
First, as I feared, he has incorporated the very stingy definition of corruption used inCitizens United spending limit cases into the contribution area. This matters because the court has recognized only the interest in preventing corruption and the appearance of corruption as a permissible reason for upholding campaign finance limits. (Equality, for example, is a forbidden interest under the First Amendment). By requiring that any campaign finance laws be deemed necessary to prevent quid pro quo corruption, akin to bribery, many more campaign laws could fall in the near future, including those base $2,600 limits. While Roberts goes out of his way to say that those base limits were not challenged today, he does not do anything to affirm that those limits are safe. In fact, he expressly says those limits don’t prevent corruption, but are “prophylaxis”—and that itself could provide a basis for striking it down.
Second, Roberts makes that laxer level of scrutiny applicable to review of contribution limits somewhat stricter. Buckley established that contribution limits get judged under something called “exacting scrutiny,” which in practice in the past has led the court to uphold a large number of contribution limits based upon very little evidence of corruption. Today Roberts tightens that standard, requiring more evidence (to be judged against the new strict “corruption” definition). He had no need, then, to adopt “strict scrutiny” for contribution limits. Why write an opinion that dramatically adopts strict scrutiny when one can accomplish nearly the same thing by quietly changing the meaning of the “exacting scrutiny,” which applies to contribution limits?
Third and most dramatically, the court seems to open the door for a future challenge to what remains of the McCain-Feingold law: the ban on large, “soft money” contributions collected by political parties. These contributions were banned because it had become clear that political parties were becoming conduits for access between elected officials and big donors. Today Roberts rejects ingratiation and access as a problem, and says that this funnel of significant money to parties could serve the purpose of strengthening political parties and thus be a good thing. He writes: “When donors furnish widely distributed support within all applicable base limits, all members of the party or supporters of the cause may benefit, and the leaders of the party or cause may feel particular gratitude. That gratitude stems from the basic nature of the party system, in which party members join together to further common political beliefs, and citizens can choose to support a party because they share some, most, or all of those beliefs. … To recast such shared interest, standing alone, as an opportunity for quid pro quocorruption would dramatically expand government regulation of the political process.”
CRL&P related posts:
- In Defense of 'Super PACs' and of the First Amendment
- The Last Rites of Public Campaign Financing?
- Citizens United exception permits state regulation of 'outside influence' in domestic politics
- Partitioning and Rights: The U.S. Supreme Court’s Accidental Jurisprudence of Democratic Process
Colorado man files civil right lawsuit alleging Idaho State Patrol detained him on suspicion of marijuana possession based on his state license plate; and, Pittsburgh police accused of severely beating a black student cost the city $119,000 for false arrest, but not liable for excessive force.
Texas resists disclosing identity of the pharmacy supplying its execution drugs; Oklahoma will use a new drug cocktail in upcoming executions; and, Prof. Berman at SL&P highlights a recent article on the state of executions in Ohio.
11th Cir. dismisses Green Party appeal of lower court's decision upholding Georgia's ballot access provision; and, Ballot Access News notes this local article reporting that the Maine legislature might dispose of the Electoral College in favor of a direct popular vote.
Equal Protection Clause protects legal immigrants' right to a concealed-carry weapons permit, says federal judge; and, federal court hears challenge to Colorado's new law expanding background checks and limiting magazines to 15 rounds.
Tuesday, April 1, 2014
The idea that religion warrants special treatment has been criticized as violating norms of equality and fairness. In response, Andrew Koppelman has argued recently that the American legal tradition of treating religion as a “good thing” is justified on the grounds that when interpreted at a sufficiently high level of abstraction, religion serves as an indispensable legal proxy for a plurality of important goods. In this essay, I argue that using religion as a legal proxy remains vulnerable to charges of unfairness toward those with secular ethical and moral convictions. The case for adopting religion as a proxy turns on arguments against potential substitutes. Even if no category can serve as a complete substitute for religion, however, its use as a proxy can be complemented by protections for the freedom of conscience. The law need not choose between protecting religious and secular convictions. It can and should provide significant protections for both.
Similarly, in the abstratct of Religion, Equality and Public Reason, he writes:
A growing number of critics have asked whether singling out religion for special treatment is morally justifiable. In Religion Without God, Ronald Dworkin sides with those who reject the distinctiveness of religion. In this essay, I situate Dworkin’s argument within the larger debate. I then argue that his view is driven toward replacing a distinction between religious and secular commitments with one that turns on the difference between public and nonpublic values. The latter distinction is central to the idea of public reason. Although Dworkin resisted this idea, his arguments against the distinctiveness of religion lead him inexorably to some conception of it, suggesting the inevitability of a commitment to public reason for those who occupy a certain place in the debate about whether religion is special.
Civil rights lawsuit alleges wrongful death in suicide of an inmate suffering from drug withdrawal who repeatedly asked for medical treatment; mother alleges Chicago public officials covered up investigation into her son's death in order to protect 'the entire Daley dynasty'; federal judge says more information is required in death of a Texas inmate from heat stroke; student alleges police falsely arrested him for questioning their authority to park illegally and ask for his ID; and, Wisconsin radio show host claims his arrest for taking pictures of protesters violated his First Amendment rights.
State court strikes down the New Jersey law requiring petition circulators to be residents of the district towards which their efforts are directed.
Federal judge won't intervene to stop law severely limiting the use of abortion-inducing drugs; and, Louisiana house passes a bill requiring doctors performing abortions to have admitting privileges at nearby hospitals.
Oregon officials retreat from push to ban the sale of edibles in medical marijuana shops.